INDENTURE, dated as of March 12, 1998, between PURINA
XXXXX, INC., a Delaware corporation (as further defined below,
the "Company") and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the
Holders of the Company's 9% Senior Subordinated Notes Due 2010
(the "Initial Notes") and, if and when issued in exchange for
Initial Notes as provided in the Registration Rights Agreement
(as hereinafter defined), the Company's Series B 9% Senior
Subordinated Notes Due 2010 (the "Exchange Notes") and, if and
when issued pursuant to a private exchange for Initial Notes, the
Company's Series C 9% Senior Subordinated Notes Due 2010 (the
"Private Exchange Notes") and, if and when issued, any Subsequent
Add-on Notes (as defined herein; such Subsequent Add-on Notes,
together with the Initial Notes, the Exchange Notes and the
Private Exchange Notes, the "Notes"):
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.1. Definitions.
"Additional Assets" means (i) any property or assets
(other than Indebtedness and Capital Stock) in a Related
Business; (ii) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such
Capital Stock by the Company or another Restricted Subsidiary
(or, in the case of an Asset Disposition of the Capital Stock of
a Wholly Owned Subsidiary or tangible assets of a Wholly Owned
Subsidiary, the Capital Stock of a Person that becomes a Wholly
Owned Subsidiary); or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that, in the case of clauses (ii)
or (iii), such Restricted Subsidiary is primarily engaged in a
Related Business.
"Affiliate" of any specified Person means any other
Person, directly or indirectly, controlling or controlled by or
under direct or indirect common control with such specified
Person. For the 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. For purposes of the
provisions described under Section 4.5, Section 4.7 and Section
4.8 only, "Affiliate" shall also mean any beneficial owner of
Capital Stock representing 10% or more of the total voting power
of the Voting Stock (on a fully diluted basis) of the Company or
of rights or warrants to purchase such Voting Stock (whether or
not currently exercisable) and any Person who would be an
2
Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Asset Disposition" means any sale, lease, transfer or
other disposition (or series of related sales, leases, transfers
or dispositions) by the Company or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or
similar transaction (each referred to for the purposes of this
definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors'
qualifying shares or shares required by applicable law to be held
by a Person other than the Company or a Restricted Subsidiary),
(ii) all or substantially all the assets of any division or line
of business of the Company or any Restricted Subsidiary or (iii)
any other assets not constituting Capital Stock of the Company or
any Restricted Subsidiary outside of the ordinary course of
business of the Company or such Restricted Subsidiary (other
than, in the case of (i), (ii) and (iii) above, (w) a disposition
of obsolete or worn-out assets, (x) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted
Subsidiary to another Restricted Subsidiary, (y) for purposes of
Section 4.7 only, a disposition that constitutes a Restricted
Payment or Permitted Investment permitted by Section 4.5 and (z)
disposition of assets with a fair market value of less than $1.0
million).
"Attributable Indebtedness" in respect of a Sale/
Leaseback Transaction means, as at the time of determination,
the present value (discounted at the interest rate borne by the
Notes, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including
any period for which such lease has been extended).
"Average Life" means, as of the date of determination,
with respect to any Indebtedness or Preferred Stock, the quotient
obtained by dividing (i) the sum of the product of the numbers of
years from the date of determination to the dates of each
successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred
Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
"Bank Indebtedness" means all Obligations pursuant to
the Credit Agreement.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act on
behalf of such Board.
"Business Day" means a day other than a Saturday,
Sunday or other day on which banking institutions in New York
City are authorized or required by law to close.
3
"Capitalized Lease Obligation" means an obligation
that is required to be classified and accounted for as a
capitalized lease for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation
determined 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, rights to purchase, warrants, options,
participation or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock,
but excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of any of the
following events:
(i) Prior to the earlier to occur of (A) the first
public offering of common stock of the Company or (B) the
first public offering of common stock of Holdings, the
Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of a majority in the aggregate of
the total voting power of the Voting Stock of the Company,
whether as a result of issuance of securities of Holdings
or the Company, any merger, consolidation, liquidation or
dissolution of Holdings or the Company, any direct or
indirect transfer of securities by Holdings or the Company
or otherwise (for purposes of this clause (i) and clause
(ii) below, the Permitted Holders shall be deemed to
beneficially own any Voting Stock of a corporation (the
"specified corporation") held by any other corporation (the
"parent corporation") so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly,
in the aggregate a majority of the voting power of the
Voting Stock of the parent corporation);
(ii) subsequent to the first public offering of
common stock of the Company or Holdings, (A) any "person"
(as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, is
or becomes the beneficial owner (as defined in clause (i)
above, except that for purposes of this clause (ii) such
person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than
40% of the total voting power of the Voting Stock of the
Company and (B) the Permitted Holders "beneficially own"
(as defined in clause (i) above), directly or indirectly,
in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other
person and
4
do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority
of the Board of Directors (for the purposes of this clause
(ii), such other person shall be deemed to beneficially own
any Voting Stock of a specified corporation held by a
parent corporation, if such other person is the beneficial
owner (as defined in this clause (ii)), directly or
indirectly, of more than 40% of the voting power of the
Voting Stock of such parent corporation and the Permitted
Holders "beneficially own" (as defined in clause (i)
above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such
parent corporation and do not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such
parent corporation);
(iii) during any period of two consecutive years (or,
in the case this event occurs within the first two years
after the Issue Date, such shorter period as shall have
begun on the Issue Date), individuals who at the beginning
of such period constituted the Board of Directors of
Holdings or the Company (together with any new directors
whose election by such Board of Directors or whose
nomination for election by the shareholders of Holdings or
the Company was approved by a vote of a majority of the
directors of Holdings or the Company then still in office
who were either directors at the beginning of such period
or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority
of the Board of Directors of Holdings or the Company then
in office; or
(iv) the merger or consolidation of Holdings or the
Company with or into another Person or the merger of
another Person with or into Holdings or the Company, or the
sale of all or substantially all the assets of Holdings or
the Company to another Person (in each case other than a
Person that is controlled by the Permitted Holders), and,
in the case of any such merger or consolidation, the
securities of Holdings or the Company that are outstanding
immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of
Holdings or the Company are changed into or exchanged for
cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged
for, in addition to any other consideration, securities of
the surviving corporation that represent immediately after
such transaction, at least a majority of the aggregate
voting power of the Voting Stock of the surviving
corporation.
"Closed Facility" means (a) a plant, mill or other
facility of the Company or any of its Restricted Subsidiaries no
longer operating on the Issue Date or (b) any plant, mill or
other facility (provided that the aggregate book value of all
5
such plants, xxxxx or other facilities covered by this clause (b)
shall not exceed $10.0 million) at which the Board of Directors
of the Company elects to cease operations after the Issue Date.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commodity Supply Agreement" means the Master
Procurement Agreement, to be dated as of the effective date of
the Merger, between Nutrition Supply and Trading, a division of
Xxxx Agriculture, and the Company.
"Consolidated Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of
EBITDA for the period of the most recent four consecutive fiscal
quarters ending at least 45 days prior to the date of such
determination to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (1) if the Company or
any Restricted Subsidiary has Incurred any Indebtedness (other
than for working capital under the Credit Agreement) since the
beginning of such period that remains outstanding or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the
first day of such period, (2) if the Company or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or
if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been
replaced) on the date of the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio, EBITDA and
Consolidated Interest Expense for such period shall be calculated
on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted
Subsidiary has not earned the interest income actually earned
during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness, (3) if since the beginning of such
period the Company or any Restricted Subsidiary shall have made
any Asset Disposition or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Asset
Disposition, the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable to
the assets which are the subject of such Asset Disposition for
such period, or increased by an amount equal to the EBITDA (if
negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by
an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
6
Subsidiary repaid, repurchased, defeased or otherwise discharged
with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale), (4)
if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with
a transaction requiring a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a
business, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such
period and (5) if since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the
beginning of such period) shall have made any Asset Disposition,
any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (3) or (4) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the
first day of such period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible
financial or accounting officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall
be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months).
"Consolidated Interest Expense" means, for any period,
the total interest expense of the Company and its consolidated
Restricted Subsidiaries, plus, to the extent not included in such
total interest expense, and to the extent Incurred by the Company
or its Restricted Subsidiaries, without duplication, (i) interest
expense attributable to Capitalized Lease Obligations and
one-third of the rental expense attributable to leases
constituting part of a Sale/Leaseback Transaction, (ii)
amortization of debt discount and debt issuance cost (other than
the amortization of debt issuance cost in respect of the
7
Notes and the Credit Agreement entered into on the Issue Date),
(iii) capitalized interest, (iv) non-cash interest expense, (v)
commissions and discounts owed with respect to letters of credit
and bankers' acceptance financing, (vi) net costs associated with
Interest Rate Agreements or Currency Agreements entered into with
respect to Indebtedness of the Company or its Restricted
Subsidiaries (including amortization of fees), (vii) Preferred
Stock dividends in respect of all Preferred Stock of the Company
and its Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Subsidiary, (viii) interest incurred in
connection with Investments in discontinued operations (but only
if the relevant obligations remain as of the relevant calculation
date), (ix) interest accruing on any Indebtedness of any other
Person to the extent such Indebtedness is Guaranteed by (or
secured by the assets of) the Company or any Restricted
Subsidiary and to the extent that such interest has not been paid
when due (after giving effect to any grace period) and (x) the
cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Indebtedness Incurred by such
plan or trust.
"Consolidated Net Income" means, for any period, the
net income (loss) of the Company and its consolidated
Subsidiaries; provided, however, (i) any net income (or loss) of
any Person (other than the Company) if such Person is not a
Restricted Subsidiary, except that (A) subject to the exclusion
contained in (iv) below, the Company's equity in the net income
of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations
contained in clause (iii) below) and (B) the Company's equity in
a net loss of any such Person for such period shall be included
in determining such Consolidated Net Income to the extent of any
cash actually contributed by the Company or a Restricted
Subsidiary to such Person during such period, (ii) any net income
of any Person acquired by the Company or a Subsidiary in a
pooling of interests transaction for any period prior to the date
of such acquisition, (iii) any net income of any Restricted
Subsidiary if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends
or the making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Company, except that (A) subject
to the exclusion contained in (iv) below, the Company's equity in
the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted
Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to
8
another Restricted Subsidiary, to the limitation contained in
this clause) and (B) the Company's equity in a net loss of any
such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income, (iv) any gain (or loss)
realized upon the sale or other disposition of any assets of the
Company, its consolidated Subsidiaries or any other Person
(including pursuant to any Sale/Leaseback Transaction) which is
not sold or otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person, (v) any
extraordinary gain or loss, (vi) the amortization of debt
issuance cost in respect of the Notes and the Credit Agreement
entered into on the Issue Date and (vii) the cumulative effect of
a change in accounting principles. Notwithstanding the foregoing,
for the purposes of Section 4.5 only, there shall be excluded
from Consolidated Net Income any dividends, repayments of loans
or advances or other transfers of assets from Unrestricted
Subsidiaries to the Company or a Restricted Subsidiary to the
extent such dividends, repayments or transfers increase the
amount of Restricted Payments permitted under Section 4.5
pursuant to clause (3)(D) of paragraph (a) thereof.
"Consolidated Net Worth" means the total of the
amounts shown on the balance sheet of the Company and its
consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, as of the end of the most recent fiscal
quarter of the Company ending prior to the taking of any action
for the purpose of which the determination is being made for
which financial statements are available, as (i) the par or
stated value of all outstanding Capital Stock of the Company plus
(ii) paid-in capital or capital surplus relating to such Capital
Stock plus (iii) any retained earnings or earned surplus less (A)
any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Consolidated NIDA" means, for any period, the
Consolidated Net Income for such period plus (to the extent
deducted in calculating Consolidated Net Income) (a) depreciation
expense of the Company and its consolidated Restricted
Subsidiaries, (b) amortization expense of the Company and its
consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid cash item that was paid in a
prior period) and (c) all other non-cash charges of the Company
and its consolidated Restricted Subsidiaries (excluding any such
non-cash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period), in each case
for such period.
"Credit Agreement" means that certain credit facility
among the Company, Chase Bank of Texas, National Association, and
the lenders from time to time party thereto, including any
collateral documents, instruments and agreements executed in
connection therewith, and the term Credit Agreement shall also
include any amendments, supplements, modifications, extensions,
9
renewals, restatements or refundings thereof and any credit
facilities that replace, refund or refinance any part of the
loans, other credit facilities or commitments thereunder,
including any such replacement, refunding or refinancing facility
that increases the amount borrowable thereunder or alters the
maturity thereof.
"Currency Agreement" means in respect of a Person any
foreign exchange contract, currency swap agreement or other
similar agreement designed to protect such Person against
fluctuations in currency values as to which such Person is a
party or a beneficiary.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness of the
Company which, at the date of determination, has an aggregate
principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to,
at least $25.0 million and is specifically designated by the
Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of
this Indenture.
"Disqualified Stock" means, with respect to any
Person, any Capital Stock which by its terms (or by the terms of
any security into which it is convertible or for which it is
exchangeable) or upon the happening of any event (i) matures or
is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable (other
than for Capital Stock of the Company (other than Disqualified
Stock)) at the option of the holder thereof, in whole or in part,
in each case on or prior to the first anniversary of the Stated
Maturity of the Notes; provided, however, that any Capital Stock
that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of
an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Notes shall not
constitute Disqualified Stock if (x) the "asset sale" or "change
of control" provisions applicable to such Capital Stock are not
more favorable to the holders of such Capital Stock than the
provisions described under Section 4.7 and Section 4.9 and (y)
any such requirement only becomes operative after compliance with
such terms applicable to the Notes, including the purchase of any
Notes tendered pursuant thereto.
"EBITDA" for any period means the sum of Consolidated
Net Income, plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) Consolidated
Interest Expense, (b) all income tax expense of the Company and
10
its consolidated Restricted Subsidiaries, (c) depreciation
expense of the Company and its consolidated Restricted
Subsidiaries, (d) amortization expense of the Company and its
consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid cash item that was paid in a
prior period), (e) all other non-cash charges of the Company and
its consolidated Restricted Subsidiaries (excluding any such
non-cash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period), in each case
for such period and (f) $3.2 million of management bonuses
payable in connection with the Merger. Notwithstanding the
foregoing, the provision for taxes based on the income or profits
of, and the depreciation and amortization and non-cash charges
of, a Restricted Subsidiary shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary
or its stockholders.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Existing Debt Securities" means the Existing PMI
Senior Subordinated Notes together with the Existing Holdings
Discount Debentures.
"Existing Holdings Discount Debentures" means Holdings'
outstanding 11 1/2% Series B Subordinated Discount Debentures due
September 1, 2005.
"Existing PMI Senior Subordinated Notes" means the
Company's outstanding 10 1/4% Senior Subordinated Notes due
September 1, 2003, guaranteed by Holdings.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect as of the Issue
Date, including those set forth in (i) the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii)
such other statements by such other entity as approved by a
significant segment of the accounting profession and (iv) the
rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13
of the Exchange Act, including opinions and pronouncements in
staff accounting bulletins and similar written statements from
the accounting staff of the SEC.
11
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness of any Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation of such Person (whether
arising by virtue of partnership arrangements, or by agreements
to keep-well, to purchase assets, goods, securities or services,
to take-or-pay or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the
obligations of such Person pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Registrar's books.
"Holdings" means PM Holdings Corporation, the Company's
parent corporation.
"Incur" means issue, assume, Guarantee, incur or
otherwise become liable for; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time
such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary.
The term "Incurrence" when used as a noun shall have a
correlative meaning.
"Indebtedness" means, with respect to any Person on any
date of determination (without duplication):
(i) the principal in respect of (A) indebtedness of
such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium
on such indebtedness to the extent such premium has become
due and payable;
(ii) all Capitalized Lease Obligations of such
Person and all Attributable Indebtedness in respect of
Sale/Leaseback Transactions entered into by such Person;
(iii) all obligations of such Person issued or
assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all
obligations of such
12
Person under any title retention agreement (but excluding
Trade Payables arising in the ordinary course of business);
(iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other
than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses
(i) through (iii) above) entered into in the ordinary
course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following receipt by such Person of
a demand for reimbursement following a payment on the
letter of credit);
(v) the amount of all obligations of such Person
with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect to
any Subsidiary of such Person, the liquidation preference
with respect to, any Preferred Stock (but excluding, in
each case, any accrued dividends);
(vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons and all dividends
of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons secured by any
Lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), the amount
of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the
obligation so secured; and
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Interest Rate Agreement" means with respect to any
Person any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar
13
agreement or arrangement designed to protect such Person against
fluctuations in interest rates as to which such Person is party
or a beneficiary.
"Investment" in any Person means any direct or
indirect advance, loan (other than advances to customers in the
ordinary course of business that are recorded as accounts
receivable on the balance sheet of such Person) or other
extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar
instruments issued by such Person. For purposes of the
definitions of "Unrestricted Subsidiary" and "Restricted Payment"
and Section 4.5, (i) "Investment" shall include the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary equal to an
amount (if positive) equal to (x) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time that such Subsidiary is so re-designated a
Restricted Subsidiary; and (ii) any property transferred to or
from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as
determined in good faith by the Board of Directors and evidenced
by a resolution of such Board of Directors.
"Investment Grade" means a rating of BBB- (or its
equivalent) or higher by Standard & Poor's Ratings Group (or its
successor) and Baa3 (or its equivalent) or higher by Xxxxx'x
Investors Service, Inc. (or its successor).
"Issue Date" means the date on which the Initial Notes
are originally issued.
"Jet Pro Sales Transactions" means sales of Jet-Pro(R)
dewatering equipment to the Company by Koch Feed Technology
Company.
"Koch Agriculture" means Xxxx Agriculture Company, a
Nebraska corporation, a wholly owned subsidiary of Xxxx
Industries.
"Xxxx Industries" means Xxxx Industries, Inc., a Kansas
corporation.
14
"Legal Holiday" has the meaning ascribed in
Section 11.8.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any
conditional sale or other title retention agreement or lease in
the nature thereof).
"Merger" means the merger of Merger Sub with and into
Holdings on the morning of the Offering.
"Merger and Tender Offer Payments" means (i) all
payments made by the Company in connection with the Tender Offer
with respect to the Existing PMI Senior Subordinated Notes, (ii)
all payments made by the Company to Holdings of amounts required
to be paid by Holdings in connection with the Tender Offer with
respect to the Existing Holdings Discount Debentures and (iii)
payments made by the Company to Holdings from the net proceeds of
the Offering and borrowings under the Credit Agreement remaining
subsequent to the payments made under (i) and (ii) above to be
paid by Holdings in connection with the Merger.
"Merger Sub" means Arch Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Koch
Agriculture.
"Net Available Cash" from an Asset Disposition means
cash payments received (including any cash payments received by
way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or
other disposition of any securities received as consideration,
but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring
Person of Indebtedness or other obligations relating to such
properties or assets or received in any other non cash form)
therefrom, in each case net of (i) all legal, title and recording
tax expenses, commissions and other fees and expenses incurred,
and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (ii) all payments made on
any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon
or other security arrangement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries or joint
ventures as a result of such Asset Disposition and (iv) the
deduction of appropriate amounts to be provided by the seller as
a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition
and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
15
"Net Cash Proceeds", with respect to any issuance or
sale of Capital Stock, means the cash proceeds of such issuance
or sale net of attorneys' fees, accountants' fees, underwriters'
or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-Recourse Debt" means Indebtedness as to which
neither the Company nor any Restricted Subsidiary (other than
Standard Securitization Undertakings in respect of Indebtedness
permitted pursuant to clause (i) of Section 4.4) (a) provides any
Guarantee or credit support of any kind (including any
undertaking, Guarantee, indemnity, agreement or instrument that
would constitute Indebtedness) or (b) is directly or indirectly
liable (as a guarantor or otherwise).
"Obligations" means with respect to any Indebtedness
all obligations for principal, premium, interest, penalties,
fees, indemnifications, reimbursements, and other amounts payable
pursuant to the documentation governing such Indebtedness.
"Offering" means the offering of the Notes pursuant to
the Offering Circular.
"Offering Circular" means the Offering Circular dated
March 6, 1998 relating to the Initial Notes; provided that after
the issuance of Exchange Notes, all references herein to
"Offering Circular" shall be deemed references to the prospectus
contained in the registration statement relating to the Exchange
Notes.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of
the Company, as applicable.
"Officers' Certificate" means a certificate signed by
any two Officers.
"Opinion of Counsel" means a written opinion from
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, August X. Xxxxxxxx, Esq. or
any other legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Permitted Customer Financing" means the Incurrence by
the Company of obligations (including Guarantees of indebtedness,
standby letters of credit (and reimbursement obligations in
respect thereof) for the repayment of indebtedness, product
repurchase agreements and other obligations) owed to any lender
of a customer of the Company or any of its Restricted
Subsidiaries Incurred in the ordinary course of business;
provided that (A) any such lender's loans are used to finance the
purchase price to be paid to the Company for animal feed products
16
and programs sold by the Company to such customer and (B) the
amount of any such obligation of the Company shall not exceed the
purchase price to be paid to the Company for such animal feed
products and programs sold by the Company to such customer which
are financed by such lender.
"Permitted Holders" means Xxxx Agriculture Company and
its Affiliates.
"Permitted Investment" means an Investment by the
Company or any Restricted Subsidiary in (i) the Company, a
Restricted Subsidiary or a Person which will, upon the making of
such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary
is a Related Business; (ii) another Person if as a result of such
Investment such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all its assets
to, the Company or a Restricted Subsidiary; provided, however,
that such Person's primary business is a Related Business; (iii)
Temporary Cash Investments; (iv) receivables owing to the Company
or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as
the Company or any such Restricted Subsidiary deems reasonable
under the circumstances; (v) payroll, travel and similar advances
to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; (vi) loans or
advances to employees made in the ordinary course of business
consistent with past practice of the Company or such Restricted
Subsidiary; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business
and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments; (viii) any Person to the extent such
investment represents the non-cash portion of the consideration
received in connection with the sale or other disposition of an
asset to the extent not prohibited pursuant to Section 4.7; (ix)
joint ventures and Unrestricted Subsidiaries in an aggregate
amount at any one time outstanding not to exceed $10.0 million,
provided that such joint ventures and Unrestricted Subsidiaries
are engaged in a Related Business; (x) Investments received in
exchange for Capital Stock (other than Disqualified Stock) of the
Company; (xi) Investments existing on the Issue Date in an amount
not to exceed the amount of such Investments on the Issue Date;
(xii) (A) Permitted Customer Financing and (B) loans and/or
Guarantees made by the Company in the ordinary course of its
business to or on behalf of any customer of the Company or its
Restricted Subsidiaries to assist such customer to increase its
operations, provided that the aggregate amount of all obligations
and loans outstanding pursuant to this clause (B) (other than
Investments represented by any such loans and/or Guarantees
existing on the Issue Date pursuant to clause (xi) hereof) shall
not exceed $25.0 million at any one time; (xiii) Investments in
17
connection with Hedging Obligations or agreements designed to
protect the Company and its Restricted Subsidiaries against
fluctuations in commodity prices entered into in the ordinary
course of business; (xiv) prepaid expenses, negotiable
instruments held for collection and lease, performance deposits
and similar deposits, in each case entered into in the ordinary
course of business of the Company and its Restricted
Subsidiaries; and (xv) Investments customarily made in a Special
Purpose Vehicle in connection with a Permitted Securitization in
an amount not to exceed $10.0 million.
"Permitted Liens" means (i) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens incurred in the
ordinary course of business for sums not yet delinquent for a
period of more than 60 days or being contested in good faith, if
any reserve or other appropriate provision (if any) has been made
in accordance with GAAP, (ii) Liens incurred or deposits made in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security or similar obligations, including any Lien securing
letters of credit issued in the ordinary course of business, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the repayment of
borrowed money), (iii) any interest or title of a lessor under
any lease; provided that such Liens do not extend to any property
or assets which is not leased property subject to such lease,
(iv) Liens securing Capitalized Lease Obligations and purchase
money Indebtedness Incurred in accordance with Section 4.3;
provided that such Capitalized Lease Obligations and purchase
money Indebtedness are not subordinated to any other
Indebtedness, (v) Liens upon specified items of inventory or
other goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or created
for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods, (vi) Liens
securing reimbursement obligations with respect to letters of
credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof, (vii)
Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements
of the Company and its Restricted Subsidiaries, (viii) customary
Liens securing Hedging Obligations Incurred in accordance with
this Indenture or agreements designed to protect the Company and
its Restricted Subsidiaries against fluctuations in commodity
prices entered into in the ordinary course of business, (ix)
Liens securing Acquired Indebtedness Incurred pursuant to Section
4.3 of a Person merged with or consolidated into the Company;
provided that (a) such Liens secured such Acquired Indebtedness
prior to such merger or consolidation, (b) were not granted in
connection with, or in anticipation of, such merger or
consolidation and (c) do not extend to or cover
18
any property or assets of the Company other than the property or
assets that secured the Acquired Indebtedness prior to the merger
or consolidation; and (x) customary Liens on the customer loans
and related assets transferred to a Special Purpose Vehicle in
connection with a Permitted Securitization.
"Permitted Securitization" means a securitization in
accordance with customary terms of customer loans described in
clause (xii)(B) of the definition of "Permitted Investment."
"Person" means any individual, corporation,
partnership joint venture, limited liability company,
association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of
any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such
Person.
"Principal" of a Note means the principal of the Note
plus the premium, if any, payable on the Note which is due or
overdue or is to become due at the relevant time; provided,
however, that for purposes of calculating any such premium, the
term "principal" shall not include the premium with respect to
which such calculation is being made.
"Public Equity Offering" means an underwritten primary
public offering of common stock of Holdings or the Company
pursuant to an effective registration statement under the
Securities Act.
"Public Market" means any time after (x) a Public
Equity Offering has been consummated and (y) at least 15% of the
total issued and outstanding common stock of the Company or
Holdings has been distributed by means of an effective
registration statement under the Securities Act or sales pursuant
to Rule 144 under the Securities Act.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease
or retire, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness, and shall include the
Refinancing of multiple facilities with a single facility and the
Refinancing of a single facility with multiple facilities.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that
Refinances any Indebtedness of the Company or any Restricted
Subsidiary existing on the Issue Date or Incurred in compliance
19
with this Indenture (including Indebtedness of the Company that
Refinances Indebtedness of any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary that Refinances
Indebtedness of another Restricted Subsidiary) including
Indebtedness that Refinances Refinancing Indebtedness; provided,
however, that (i) the Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the Indebtedness
being Refinanced, (ii) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the
Indebtedness being Refinanced and (iii) such Refinancing
Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price)
that is equal to or less than the sum of the aggregate principal
amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding or committed (plus fees and
expenses, including any premium and defeasance costs) under the
Indebtedness being Refinanced; provided further, however, that
Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or (y)
Indebtedness of the Company or a Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Business" means the businesses of the Company
or any Restricted Subsidiary on the date of this Indenture and
any business related, ancillary or complementary thereto.
"Representative" means (i) with respect to the Bank
Indebtedness, Chase Bank of Texas, National Association, as
Administrative Agent, or any successor or replacement thereof or
any agent acting in a similar capacity in connection with the
Credit Agreement and (ii) any trustee, agent or representative
(if any) for an issue of Senior Indebtedness (other than the Bank
Indebtedness) of the Company.
"Restricted Payment" with respect to any Person means
(i) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock
(including any payment by the Company or its Restricted
Subsidiaries in respect of such Person's Capital Stock in
connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of
its Capital Stock (other than dividends or distributions payable
solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to the Company or a
Restricted Subsidiary, and other than pro rata dividends or other
distributions made by a Subsidiary that is not a Wholly Owned
Subsidiary to minority stockholders (or owners of an equivalent
interest in the case of a Subsidiary that is an entity other than
a corporation)), (ii) the purchase, redemption or other
acquisition or retirement for value of any Capital Stock of the
Company held by any Person or of any Capital Stock of a
Restricted Subsidiary held by any Person (other than Capital
Stock of the Company held by a Restricted Subsidiary or Capital
20
Stock of a Restricted Subsidiary held by the Company or by
another Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital
Stock of the Company that is not Disqualified Stock), (iii) the
purchase, repurchase, redemption, defeasance or other acquisition
or retirement for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Subordinated
Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation
of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of
acquisition) or (iv) the making of any Investment in any Person
(other than a Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the
Company other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Restricted Subsidiary leases such
property from such Person.
"SEC" means the U.S. Securities and Exchange
Commission.
"Secured Indebtedness" means any Indebtedness of the
Company secured by a Lien.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Indebtedness" means (i) Bank Indebtedness of,
or guaranteed by, the Company, whether outstanding on the Issue
Date or thereafter Incurred and (ii) Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter Incurred,
including accrued and unpaid interest in respect of (A)
indebtedness of the Company for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which the Company is
responsible or liable unless, in the case of clauses (i) and
(ii), in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that
such obligations are subordinate in right of payment to the
Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of the Company to any Subsidiary, (2)
any liability for Federal, state, local or other taxes owed or
owing by the Company, (3) any Trade Payables arising in the
ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities), (4) any Indebtedness of
the Company (and any accrued and unpaid interest respect thereof)
which by the express terms of the agreement or instrument
creating, evidencing or governing such Indebtedness is
subordinate or junior in any respect to any other Indebtedness or
21
other obligation of the Company, (5) that portion of any
Indebtedness which at the time of Incurrence is Incurred in
violation of this Indenture.
"Senior Subordinated Indebtedness" means the Notes and
any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank pari passu with the Notes in
right of payment and is not subordinated by its terms in right of
payment to any Indebtedness or other obligation of the Company
which is not Senior Indebtedness.
"Significant Subsidiary" means any Restricted
Subsidiary that would be a "Significant Subsidiary" of the
Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the SEC.
"Special Purpose Vehicle" means a trust, partnership
or other special purpose Person established by the Company and/or
any of its Subsidiaries to implement a Permitted Securitization,
which incurs no liabilities and engages in no operations other
than one or Permitted Securitizations and whose assets are
limited to the customer loans described in clause (xii)(B) of the
definition of "Permitted Investment" and related assets necessary
to carry out a Permitted Securitization.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered
into by the Company or any Restricted Subsidiary which are
customary in a securitization transaction similar to a Permitted
Securitization.
"Stated Maturity" means, with respect to any security,
the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening
of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of
the Company (whether outstanding on the Issue Date or thereafter
Incurred) which is expressly subordinate or junior in right of
payment to the Notes pursuant to a written agreement.
"Subsequent Add-on Notes" has the meaning ascribed in
paragraph 4 of the Notes (Exhibit 1 to Appendix).
"Subsidiary" of any Person means any corporation,
association, partnership, limited liability company or other
business entity of which more than 50% of the total voting power
of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors,
22
managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person and
one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person, but excluding, in the case of the
Company, Oceanview Farms L.P.
"Tax Sharing Agreement" means the tax sharing
agreements to be entered into among Xxxx Industries, Holdings and
Holdings' subsidiaries (including the Company).
"Temporary Cash Investments" means any of the
following: (i) any investment in direct obligations of the United
States of America or any agency thereof or obligations Guaranteed
by the United States of America or any agency thereof, (ii)
investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United
States of America having capital, surplus and undivided profits
aggregating in excess of $250 million (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) or any money market fund
sponsored by a registered broker dealer or mutual fund
distribution, (iii) repurchase obligations with a term of not
more than 30 days for underlying securities of the types
described in clause (i) above entered into with a bank meeting
the qualifications described in clause (ii) above, (iv)
investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other
than an Affiliate of a Company) organized and in existence under
the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the
time as of which any investment therein is made of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or
higher) according to Standard & Poor's Ratings Group, (v)
investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and
rated at least "A" by Standard & Poor's Ratings Group or "A" by
Xxxxx'x Investors Service, Inc.; and (vi) investments in mutual
funds, whose investment guidelines restrict such funds'
investments to investments which are substantially similar to
those described in clauses (i)-(v).
"Tender Offers" means the offer (i) by the Company to
purchase for cash any and all of the Existing PMI Senior
Subordinated Notes and (ii) by Holdings to purchase for cash any
and all of the Existing Holdings Discount Debentures.
23
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person,
any accounts payable or any indebtedness or monetary obligation
to trade creditors created, assumed or Guaranteed by such Person
arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Trustee" means the party named as such in this
Indenture until a successor replaces it and, thereafter, means
such successor.
"Trust Officer" means any trust officer, assistant
vice president, or vice president of the Trustee assigned by the
Trustee to administer this Indenture.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of
the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. In addition, Bio Kingdom, L.L.C. has been designated
as an Unrestricted Subsidiary on the Issue Date. The Board of
Directors may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary of the Company) to
be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Capital Stock or Indebtedness of, or
owns or holds any Lien on any property of, the Company or any
other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided, however, that either
(A) the Subsidiary to be so designated has total consolidated
assets of $1,000 or less or (B) if such Subsidiary has
consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.5. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving
effect to such designation (x) the Company could Incur $1.00 of
additional Indebtedness under paragraph (a) of Section 4.3 and
(y) no Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations
(or certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged
and which are not callable or redeemable at the issuer's option.
24
"Voting Stock" of a Person means all classes of
Capital Stock or other interests (including partnership
interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers, or trustee thereof.
"Wholly Owned Subsidiary" means a Restricted
Subsidiary of the Company all the Capital Stock of which (other
than directors' qualifying shares or similar shares) is owned by
the Company or one or more other Wholly Owned Subsidiaries.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction"......................... 4.8
"Appendix"...................................... 2.1
"Authenticating Agent".......................... 2.2
"Bankruptcy Law"................................ 6.1
"covenant defeasance option".................... 8.1(b)
"Custodian"..................................... 6.1
"Event of Default".............................. 6.1
"legal defeasance option"....................... 8.1(b)
"Offer" ........................................ 4.7(b)
"Offer Amount".................................. 4.7(c)
"Offer Period".................................. 4.7(c)
"Paying Agent".................................. 2.3
"Purchase Date.................................. 4.7(c)
"Registrar"..................................... 2.3
"Successor Company"............................. 5.1
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act. The mandatory provisions of the TIA are
incorporated by reference in and made a part of this Indenture.
The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Company
and 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
25
or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words
in the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or
other discount security at any date shall be the principal
amount thereof that would be shown on a balance sheet of
the issuer dated such date prepared in accordance with
GAAP;
(8) the principal amount of any Preferred Stock shall
be (i) the maximum liquidation preference of such Preferred
Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock,
whichever is greater;
(9) all references to the date the Notes were
originally issued shall refer to the date the Initial Notes
were originally issued;
(10) provisions apply to events and transactions
taking place after the Issue Date;
(11) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by the
Commission from time to time; and
(12) "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.
SECTION 1.5. One Class of Notes. The Initial Notes,
the Private Exchange Notes, the Exchange Notes and the Subsequent
Add-on Notes shall vote and consent together on all matters as
one class and none of the Initial Notes, the Private Exchange
26
Notes or the Exchange Notes shall have the right to vote or
consent as a separate class on any matter.
ARTICLE II
The Notes
---------
SECTION 2.1. Form and Dating. Certain provisions
relating to the Initial Notes, the Subsequent Add-on Notes, the
Private Exchange Notes and the Exchange Notes are set forth in
the Rule 144A Appendix attached hereto (the "Appendix"), which is
hereby incorporated in and expressly made a part of this
Indenture. The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to
the Appendix, which is hereby incorporated in and expressly made
a part of this Indenture. The Exchange Notes, the Private
Exchange Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, which is hereby
incorporated by reference and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements
required by law, rule of any securities exchange or
over-the-counter market on which such Notes are then listed or
quoted, or usage, in addition to those set forth on the Appendix
and Exhibit A. The Company and the Trustee shall approve the
forms of the Notes and any notation, endorsement or legend on
them. Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in the Appendix and Exhibit A
are part of the terms of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to be bound by such
terms.
SECTION 2.2. Execution and Authentication. Two
Officers 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
signatory of the Trustee manually authenticates the Note. The
signature of the Trustee on a Note shall be conclusive evidence
that such Note has been duly and validly authenticated and issued
under this Indenture.
The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the
Notes. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent.
27
SECTION 2.3. Registrar and Paying Agent. The Company
shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (the "Registrar")
and an office or agency where Notes may be presented for payment
(the "Paying Agent"). The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any such additional
paying agent.
In the event the Company shall retain any Person not a
party to this Indenture as an agent hereunder, the Company shall
enter into an appropriate agency agreement with any Registrar,
Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and
address of each 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 therefor pursuant
to Section 7.7. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
The Company initially appoints the Trustee as
Registrar and Paying Agent for the Notes.
SECTION 2.4. Paying Agent To Hold Money in Trust. By
at least 11:00 a.m. (New York City time) on the date on which any
Principal, interest or Additional Interest, if any, on any Note
is due and payable, the Company shall deposit with the Paying
Agent a sum sufficient to pay such Principal, interest or
Additional Interest, if any, when due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money held by such Paying Agent
for the payment of Principal of or interest or Additional
Interest, if any, on the Notes and shall notify the Trustee of
any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent
(other than the Trustee) to pay all money held by it to the
Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to
the Company, the Trustee shall serve as Paying Agent for the
Notes.
SECTION 2.5. 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 or any Paying Agent is not the
28
Registrar, the Company shall cause the Registrar to furnish to
the Trustee or any such Paying Agent, in writing at least five
Business Days before each interest payment date and at such other
times as the Trustee or any such Paying Agent 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 2.6. [Intentionally Omitted]
SECTION 2.7. Replacement Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note shall
provide the Company and the Trustee with evidence to their
satisfaction that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate
a replacement Note if the Registrar's requirements are met and
the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder
shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Note is replaced. The Company
and the Trustee may charge the Holder for their expenses in
replacing a Note, including reasonable fees and expenses of
counsel. Every replacement Note is an additional obligation of
the Company.
SECTION 2.8. Outstanding Notes. Notes outstanding at
any time are all Notes authenticated by the Trustee except for
those canceled, those delivered for cancellation and those
described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of
the Company holds the Note.
If a Note is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Note is held
by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity
date money sufficient to pay all Principal and interest payable
on that date with respect to the Notes (or portions thereof) to
be redeemed or maturing, as the case may be, and the Paying Agent
is not prohibited from paying such money to the Noteholders on
that date pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9. 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
29
the Trustee shall authenticate definitive Notes. After the
preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary
Notes at any office or agency maintained by the Company for that
purpose and such exchange shall be without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Notes, the Company shall execute, and the Trustee shall
authenticate and deliver in exchange therefor, one or more
definitive Notes representing an equal principal amount of Notes.
Until so exchanged, the Holder of temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as
a Holder of definitive Notes.
SECTION 2.10. 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 for
cancellation any Notes surrendered to them for registration of
transfer or exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention
requirements of the Exchange Act) all Notes surrendered for
registration of transfer or exchange, payment or cancellation
and, upon request by the Company, deliver a certificate of such
destruction to the Company unless the Company directs the Trustee
to deliver canceled Notes to the Company. The Company may not
issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company
defaults in a payment of interest on the Notes, the Company shall
pay defaulted interest (plus interest on such defaulted interest
to the extent lawful) in any lawful manner. The Company may pay
the defaulted interest to the Persons who are Noteholders on a
subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee which specified record
date shall not be less than 10 days prior to the payment date for
such defaulted interest and shall promptly mail or cause to be
mailed to each Noteholder a notice that states the special record
date, the payment date and the amount of defaulted interest to be
paid. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as
provided in this Section 2.11.
SECTION 2.12. CUSIP Numbers. The Company in issuing
the Notes may use "CUSIP" numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders, provided, however, that
30
any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or
as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers.
In the event that the Company shall issue and the
Trustee shall authenticate any Subsequent Add-on Notes, the
Company shall use its best efforts to obtain the same CUSIP
number for such Subsequent Add-on Notes as is printed on the
Notes outstanding at such time; provided, however, that if any
series of Subsequent Add-on Notes is determined, pursuant to an
Opinion of Counsel, to be a different class of security than the
Notes outstanding at such time for federal income tax purposes,
the Company may obtain a CUSIP number for such series of
Subsequent Add-on Notes that is different from the CUSIP number
printed on the Notes then outstanding.
ARTICLE III
Redemption
----------
SECTION 3.1. Notices to Trustee. If the Company elects
to redeem Notes pursuant to paragraph 5 of the Notes (Exhibit 1
to the Appendix), it shall notify the Trustee and the Paying
Agent in writing of the redemption date, the principal amount of
Notes to be redeemed and the redemption price.
The Company shall give each notice to the Trustee and
the Paying Agent provided for in this Section at least 45 days
before the redemption date unless the Trustee and the Paying
Agent consent to a shorter period. Such notice shall be
accompanied by an Officers' Certificate from the Company to the
effect that such redemption will comply with the conditions
herein. The record date relating to such redemption shall be
selected by the Company and set forth in the related notice given
to the Trustee and the Paying Agent, which record date shall be
not less than 15 days prior to the date selected for redemption
by the Company.
SECTION 3.2. Selection of Notes To Be Redeemed. If
fewer than all the Notes then outstanding are to be redeemed, the
Trustee shall select the Notes to be redeemed pro rata or by lot
or by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee in its sole
discretion considers to be fair and appropriate. The Trustee
shall make the selection from outstanding Notes not previously
called for redemption. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them the Trustee selects shall
be in amounts of $1,000 or a whole multiple of $1,000. Provisions
of this Indenture that apply to Notes called for
31
redemption also apply to portions of Notes called for redemption.
The Trustee shall promptly notify the Company and the Paying
Agent of the Notes or portions of Notes to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days
but not more than 45 days before a date for redemption of Notes,
the Trustee at the expense of the Company shall mail a notice of
redemption by first-class mail to each Holder of Notes to be
redeemed.
The notice shall identify the Notes to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price plus accrued and unpaid interest, if any;
(5) if fewer than all the outstanding Notes are to be
redeemed, the identification and principal amounts of the
particular Notes to be redeemed and the aggregate principal
amount of Notes to be outstanding after the redemption;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this
Indenture, interest on Notes (or portion thereof) called
for redemption ceases to accrue on and after the redemption
date;
(7) the CUSIP number, if any, printed on the Notes
being redeemed; and
(8) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Notes.
The Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. In such event, the
Company shall provide the Trustee with the information required
by this Section 3.3.
SECTION 3.4. Effect of Notice of Redemption. Once
notice of redemption is mailed, Notes called for redemption shall
become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the
Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued and unpaid interest to the
redemption date; provided that the Company shall have deposited
32
the redemption price with the Paying Agent or the Trustee on or
before 11:00 a.m. (New York City time) on the date of redemption;
provided, further, that if the redemption date is after a regular
record date and on or prior to the interest payment date, the
accrued and unpaid interest shall be payable to the Noteholder of
the redeemed Notes registered on the relevant record date.
Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. By at least
11:00 a.m. (New York City time) on the date on which any
Principal of or interest on any Note is due and payable, the
Company shall deposit with the Paying Agent (or, if the Company
or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes to be redeemed on that
date other than Notes or portions of Notes called for redemption
which are owned by the Company or a Subsidiary and have been
delivered by the Company or such Subsidiary to the Trustee for
cancellation.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
redemption price, interest on the Notes to be redeemed will cease
to accrue on and after the applicable redemption date, whether or
not such Notes are presented for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of
a Note that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder (at the Company's
expense) a new Note equal in a principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE IV
Covenants
---------
SECTION 4.1. Payment of Notes. The Company shall
promptly pay the Principal of and interest on the Notes on the
dates and in the manner provided in the Notes and in this
Indenture. Principal and interest shall be considered paid on the
date due if on or before 11:00 a.m. (New York City time) on such
date the Trustee or the Paying Agent holds (or, if the Company or
a Subsidiary is the Paying Agent, the segregated account or
separate trust fund maintained by the Company or such Subsidiary
pursuant to Section 2.4) in accordance with this Indenture money
sufficient to pay all Principal and interest then due and the
Trustee or the Paying Agent (or, if the Company or a Subsidiary
is the Paying Agent, the Company or such Subsidiary), as the case
may be, is not prohibited from paying such money to the
Noteholders on that date pursuant to the terms of this Indenture.
33
The Company shall pay interest on overdue principal at
the rate specified therefor in the Notes, and it shall pay
interest on overdue installments of interest at the same rate to
the extent lawful as provided in Section 2.11.
Notwithstanding anything to the contrary contained in
this Indenture, the Company or the Paying Agent may, to the
extent it is required to do so by law, deduct or withhold income
or other similar taxes imposed by the United States of America or
other domestic or foreign taxing authorities from Principal or
interest payments hereunder.
SECTION 4.2. SEC Reports. Notwithstanding that the
Company may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the
Company will file with the SEC and provide the Trustee and
Noteholders with the annual reports and such information,
documents and other reports which are specified in Sections 13
and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents
and other reports to be so filed and provided at the times
specified for the filing of such information, documents and
reports under such Sections, except that prior to the 150th day
after the Issue Date, such requirements shall be deemed satisfied
by the filing with the SEC and delivering to the Holders on or
prior to such date a registration statement under the Securities
Act that contains the information that would be required in a
Form 10-K for the year ended December 31, 1997 and a Form 10-Q
for the quarter ended March 31, 1998. The Company also will
comply with the other applicable provisions of TIA ss. 314(a).
SECTION 4.3. Limitation on Indebtedness. (a) The
Company will not Incur, directly or indirectly, any Indebtedness
unless, on the date of such Incurrence and after giving effect to
such Incurrence and the application of the net proceeds
therefrom, the Consolidated Coverage Ratio would exceed 2.00:1.
(b) Notwithstanding the foregoing paragraph (a), the
Company may Incur any or all of the following Indebtedness: (i)
Indebtedness of the Company Incurred under the revolving credit
provisions of the Credit Agreement in an aggregate principal
amount outstanding at any time not to exceed the greater of (A)
$100.0 million and (B) the sum of (1) 85% of the gross book value
of the accounts receivable of the Company and its Restricted
Subsidiaries and (2) 50% of the gross book value of the inventory
of the Company and its Restricted Subsidiaries; provided that the
amount in clause (A) shall be reduced by the aggregate amount of
all proceeds from all Asset Dispositions that have been applied
since the Issue Date to permanently reduce the outstanding amount
of such Indebtedness pursuant to Section 4.7; (ii) Indebtedness
of the Company Incurred under the term loan provisions of the
Credit Agreement in an aggregate principal amount outstanding at
any time not to exceed $200.0 million, less the aggregate amount
of all proceeds from all Asset Dispositions
34
that have been applied since the Issue Date to permanently reduce
the outstanding amount of such Indebtedness pursuant to Section
4.7 and less the aggregate amount of any mandatory prepayments of
principal of term loans thereunder that have been made since the
Issue Date; (iii) Indebtedness of the Company owing to and held
by any Restricted Subsidiary; provided, however, that (A) any
subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to another Restricted Subsidiary) will be
deemed, in each case, to constitute the Incurrence of such
Indebtedness by the Company and (B) such Indebtedness (if held
other than by a Wholly Owned Subsidiary) is expressly
subordinated to the prior payment in full in cash of all
obligations with respect to the Notes; (iv) Indebtedness
represented by the Notes and the Exchange Notes in an aggregate
principal amount not to exceed $350.0 million; (v) Indebtedness
of the Company (other than the Indebtedness described in clauses
(i), (ii), (iii) or (iv) above) outstanding on the Issue Date;
provided that any Existing PMI Senior Subordinated Notes accepted
for payment in the Tender Offers shall be deemed to be
Indebtedness outstanding on the Issue Date except to the extent
they remain outstanding at the close of business on the second
Business Day following the Issue Date (in which event the
existence of such Existing PMI Senior Subordinated Notes shall be
deemed to constitute an Incurrence of Indebtedness by the Company
under this Indenture); (vi) Indebtedness (including Capitalized
Lease Obligations) of the Company Incurred to finance the
acquisition, construction or improvement of fixed or capital
assets in an aggregate principal amount at any one time
outstanding not to exceed $50.0 million, provided that such
Indebtedness is Incurred within 180 days after the date of such
acquisition, construction or improvement and does not exceed the
fair market value of such acquired, constructed or improved
assets, as determined in good faith by the Board of Directors of
the Company; (vii) Refinancing Indebtedness Incurred in respect
of any Indebtedness Incurred pursuant to paragraph (a) or
pursuant to clauses (ii), (iv), (v) (other than any Existing PMI
Senior Subordinated Notes described in such clause (v)) or this
clause (vii); (viii) Indebtedness (A) in respect of performance
bonds, bankers' acceptances, letters of credit and surety or
appeal bonds provided by the Company in the ordinary course of
its business and which do not secure Indebtedness other than the
Indebtedness and the obligations with respect to which such
instruments were issued and (B) under Currency Agreements and
Interest Rate Agreements Incurred which, at the time of
Incurrence, is in the ordinary course of business; provided,
however, that, in the case of Currency Agreements which relate to
Indebtedness and Interest Rate Agreements, such Currency
Agreements and Interest Rate Agreements are directly related to
Indebtedness permitted to be Incurred by the Company pursuant to
this Indenture; (ix) Indebtedness represented by Guarantees by
the Company of Indebtedness otherwise permitted to be Incurred
pursuant to this covenant or Section 4.4; (x) (A) Permitted
35
Customer Financing and (B) Guarantees permitted to be Incurred
pursuant to clause (xii)(B) of the definition of "Permitted
Investment"; (xi) Indebtedness of the Company arising from the
honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the
ordinary course of business; provided that such Indebtedness is
extinguished within five business days of Incurrence; (xii)
Indebtedness of the Company arising from agreements providing for
indemnification, adjustment of purchase price or similar
obligations Incurred in connection with the acquisition or
disposition of any assets of the Company or a Restricted
Subsidiary (whether evidenced by a note, backed by a letter of
credit or otherwise) in a principal amount not to exceed (in the
case of a disposition) the gross proceeds actually received by
the Company or any Restricted Subsidiary in connection with such
disposition; (xiii) Indebtedness of the Company representing
obligations in respect of self-insured retention amounts, amounts
required in connection with workers' compensation and other
insurance coverage Incurred in the ordinary course of business or
reimbursement obligations in respect of amounts Incurred or paid
by an insurance company under any insurance program in the
ordinary course of business; (xiv) Standard Securitization
Undertakings; and (xv) other Indebtedness in an aggregate
principal amount outstanding at any time not to exceed $25.0
million.
(c) Notwithstanding the foregoing, the Company shall
not Incur any Indebtedness pursuant to the foregoing paragraph
(b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations unless such new
Indebtedness shall be subordinated to the Notes to at least the
same extent as such Subordinated Obligations being Refinanced.
(c) For purposes of determining compliance with the
foregoing covenant, (i) in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness
described above, the Company, in its sole discretion, will
classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the
above clauses and (ii) an item of Indebtedness may be divided and
classified in more than one of the types of Indebtedness
described above.
(d) Notwithstanding paragraphs (a) and (b) above, the
Company shall not Incur (i) any Indebtedness if such Indebtedness
is subordinate or junior in ranking in any respect to any Senior
Indebtedness, unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to
the Senior Subordinated Indebtedness or (ii) any Secured
Indebtedness that is not Senior Indebtedness (other than Secured
Indebtedness secured by a Permitted Lien) unless
contemporaneously therewith effective provision is made to secure
36
the Notes equally and ratably with such Secured Indebtedness for
so long as such Secured Indebtedness is secured by a Lien.
SECTION 4.4. Limitation on Indebtedness and Preferred
Stock of Restricted Subsidiaries. The Company shall not permit
any Restricted Subsidiary to Incur, directly or indirectly, any
Indebtedness or Preferred Stock except: (a) Indebtedness or
Preferred Stock of a Restricted Subsidiary issued to and held by
the Company or a Restricted Subsidiary; provided, however, that
any subsequent issuance or transfer of any Capital Stock which
results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such
Indebtedness or Preferred Stock (other than to the Company or a
Restricted Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Indebtedness or Preferred Stock
by the issuer thereof; (b) Indebtedness or Preferred Stock of a
Restricted Subsidiary Incurred and outstanding on or prior to the
date on which such Restricted Subsidiary was acquired by the
Company (other than Indebtedness or Preferred Stock Incurred in
connection with, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the
Company); provided, however, that on the date of such acquisition
and after giving effect thereto, the Company would have been able
to Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) of the covenant described under Section 4.3; (c)
Indebtedness or Preferred Stock outstanding on the Issue Date
(other than Indebtedness or Preferred Stock described in clauses
(a) and (b) of this paragraph); (d) Refinancing Indebtedness
Incurred in respect of Indebtedness or Preferred Stock referred
to in clauses (b) or (c) of this paragraph or this clause (d);
provided, however, that to the extent such Refinancing
Indebtedness directly or indirectly Refinances Indebtedness or
Preferred Stock of a Subsidiary described in clause (c), such
Refinancing Indebtedness shall be Incurred only by such
Subsidiary; (e) Indebtedness of Restricted Subsidiaries organized
under laws other than the United States of America or any state
thereof in amount not to exceed $25.0 million in the aggregate at
any one time; (f) Indebtedness in respect of performance bonds,
bankers' acceptances, letters of credit and surety or appeal
bonds provided by a Restricted Subsidiary in the ordinary course
of its business and which do not secure Indebtedness other than
the Indebtedness and the obligations with respect to which such
instruments were issued; (g) Indebtedness of a Restricted
Subsidiary arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided
that such Indebtedness is extinguished within five business days
of Incurrence; (h) Guarantees of the Indebtedness specified in
clause (i) and (ii) of Section 4.3; and (i) Indebtedness of a
Special Purpose Vehicle which is Non-Recourse Debt (other than
Standard Securitization Undertakings), including Indebtedness
37
represented by the issuance of participations of interest in such
Special Purpose Vehicle in connection with a Permitted
Securitization.
The Company will not permit any Unrestricted
Subsidiary to Incur any Indebtedness other than Non-Recourse Debt
(except that an Unrestricted Subsidiary may Incur Indebtedness
Guaranteed by the Company to the extent an Investment represented
by such Guarantee is permitted to be made in accordance with
Section 4.5), provided, however, that if any such Indebtedness
ceases to be Non-Recourse Debt, such event shall be deemed to
constitute an Incurrence of Indebtedness by the Company or such
Restricted Subsidiary.
SECTION 4.5. Limitation on Restricted Payments. (a)
The Company will not, and will not permit any Restricted
Subsidiary, directly or indirectly, to make any Restricted
Payment if at the time of such Restricted Payment: (1) a Default
or Event of Default shall have occurred and be continuing (or
would result therefrom); (2) the Company could not Incur at least
$1.00 of additional Indebtedness under paragraph (a) of Section
4.3; or (3) the aggregate amount of such Restricted Payment and
all other Restricted Payments (the amount so expended, if other
than in cash, to be determined in good faith by the Board of
Directors of the Company, whose determination (in the case of
amounts in excess of $5.0 million) will be evidenced by a
resolution of such Board of Directors) declared or made
subsequent to the Issue Date would exceed the sum of: (A) 15% of
the Consolidated NIDA accrued during the period (treated as one
accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Issue
Date occurs to the end of the most recent fiscal quarter ending
at least 45 days prior to the date of such Restricted Payment
(or, in case such Consolidated NIDA will be a deficit, minus 100%
of such deficit) (except that if the Notes have been rated
Investment Grade as of the end of any fiscal quarter, then the
amount to be calculated pursuant to this clause (A) for the
succeeding fiscal quarter and for any other succeeding quarter
where the Notes have been rated Investment Grade on the first day
of such fiscal quarter shall be 25% of Consolidated NIDA,
provided that the Notes are also rated Investment Grade at the
time such Restricted Payment is declared or made, as the case may
be); (B) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of Capital Stock (other than Disqualified
Stock) or other cash contributions from Holdings to the Company's
capital subsequent to the Issue Date (other than an issuance or
sale to a Subsidiary of the Company and other than an issuance or
sale to an employee stock ownership plan or to a trust
established by the Company, or any of its Subsidiaries for the
benefit of their employees to the extent that such plan or trust
Incurs any Indebtedness Guaranteed by the Company or its
Restricted Subsidiaries to finance the acquisition of such
Capital Stock); (C) the amount by which Indebtedness of the
Company is reduced on the Company's balance sheet upon the
38
conversion or exchange (other than by a Subsidiary) subsequent to
the Issue Date of any Indebtedness of the Company convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of
the Company (less the amount of any cash, or the fair market
value of any other property, distributed by the Company upon such
conversion or exchange); (D) an amount equal to the sum of (i)
the net reduction in Investments resulting from repayments of
loans or advances or other transfers of assets, terminations of
Guarantees or proceeds received by the Company or the relevant
Restricted Subsidiary from the sale of all or part of such
Investments in each case to the Company or any Restricted
Subsidiary and (ii) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of
the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary (or
is merged into the Company or a Restricted Subsidiary); provided,
that the foregoing sum shall not exceed the amount of such
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary or in such other
Person, which amount was included in the calculation of the
amount of Restricted Payments; and (E) $5.0 million.
(b) The provisions of the foregoing paragraph (a) will
not prohibit: (i) any purchase, redemption, defeasance or other
acquisition of Capital Stock of the Company or Subordinated
Obligations made by exchange for, or out of the net proceeds of
the substantially concurrent sale of, Capital Stock of the
Company (other than Disqualified Stock and other than Capital
Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or to a trust established by the
Company or any of its Subsidiaries for the benefit of their
employees to the extent that such plan or trust Incurs any
Indebtedness Guaranteed by the Company or its Restricted
Subsidiaries to finance the acquisition of such Capital Stock);
provided, however, that (A) such purchase, redemption, defeasance
or other acquisition will be excluded in the calculation of the
amount of Restricted Payments and (B) the Net Cash Proceeds from
such sale will be excluded from the calculation of amounts under
clause (3)(B) of paragraph (a) above; (ii) any purchase,
redemption, defeasance or other acquisition of Subordinated
Obligations made by exchange for, or out of the net proceeds of
the substantially concurrent sale of, Subordinated Obligations of
the Company which are permitted to be Incurred pursuant to the
covenant described under Section 4.3; provided, however, that (A)
the principal amount of such new Indebtedness does not exceed the
principal amount of the Subordinated Obligations being so
redeemed, repurchased, acquired or retired for value (plus the
amount of any premium required to be paid under the terms of the
instrument governing the Subordinated Obligations being so
redeemed, repurchased, acquired or retired), (B) such new
Indebtedness is subordinated to the Notes at least to the same
extent as such Subordinated Obligations so purchased, exchanged,
redeemed, repurchased, acquired or retired for value, (C) such
new Indebtedness has a final scheduled maturity date later than
39
the earlier of the final scheduled maturity date of the
Subordinated Obligations being so redeemed and the final
scheduled maturity date of the Notes and (D) such new
Indebtedness has an Average Life equal to or greater than the
Average Life of the Notes; provided further, however, that such
purchase, redemption, defeasance or other acquisition will be
excluded in the calculation of the amount of Restricted Payments;
(iii) the repurchase or other acquisition of shares of, or
options to purchase shares of, common stock of the Company or
Holdings from employees, former employees, directors or former
directors of the Company or Holdings (or permitted transferees of
such employees, former employees, directors or former directors),
pursuant to the terms of the agreements (including employment
agreements) or plans (or amendments thereto) approved by the
Board of Directors under which such individuals purchase or sell
or are granted the option to purchase or sell, shares of such
common stock; provided, however, that the aggregate amount of
such repurchases and other acquisitions shall not exceed $2.0
million in any calendar year; provided further, however, that
such repurchases and other acquisitions shall be included in the
calculation of the amount of Restricted Payments; (iv) any
dividend paid to Holdings (or any successor parent corporation
with which the Company is part of a consolidated tax group) in
respect of overhead expenses, tax liabilities and legal,
accounting and other professional fees and expenses that are
directly attributable to the operations of the Company and its
Restricted Subsidiaries, provided that the amount of any such
dividends will be excluded in the calculation of the amount of
Restricted Payments; (v) dividends paid within 60 days after the
date of declaration thereof if at such date of declaration such
dividend would have complied with this covenant; provided,
however, that the amount of such dividend will be included
(without duplication for the declaration thereof) in the
calculation of the amount of Restricted Payments; and (vi) the
Merger and Tender Offer Payments; provided, however, that such
payments will be excluded in the calculation of the amount of
Restricted Payments; and provided further that, at the time of,
and after giving effect to, any Restricted Payment permitted by
clauses (i), (ii), (iii) and (v) no Default or Event of Default
shall have occurred and be continuing.
SECTION 4.6. Limitation on Restrictions on
Distributions from Restricted Subsidiaries. The Company will not,
and will not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock to the Company or a Restricted
Subsidiary or pay any Indebtedness or other obligation owed to
the Company, (ii) make any loans or advances to the Company or
(iii) transfer any of its property or assets to the Company or
any Restricted Subsidiary, except: (1) any encumbrance or
restriction pursuant to an agreement in effect at or entered into
on the Issue Date (including the Credit Agreement); (2) any
40
encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary on or prior to the date on
which such Restricted Subsidiary was acquired by the Company or a
Restricted Subsidiary (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Subsidiary or was acquired by the Company or
a Restricted Subsidiary) and outstanding on such date; (3) any
encumbrance or restriction pursuant to an agreement effecting a
Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (1) or (2) of this covenant or contained in
any amendment to an agreement referred to in clause (1) or (2) of
this covenant; provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained
in any such refinancing agreement or amendment are no less
favorable (taken as a whole) to the Noteholders than the
encumbrances and restrictions with respect to such Restricted
Subsidiary contained in such predecessor agreement, as determined
in good faith by the Company and evidenced by an Officers'
Certificate; (4) any encumbrance or restriction in any agreement
entered into pursuant to clause (e) of Section 4.4; (5) in the
case of clause (iii), any encumbrance or restriction that
restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease,
license or similar contract; (6) in the case of clause (iii),
restrictions contained in security agreements or mortgages
securing Indebtedness of a Restricted Subsidiary to the extent
such encumbrance or restrictions restrict the transfer of the
property subject to such security agreements or mortgages; (7)
any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition
of all or substantially all the Capital Stock or assets of such
Restricted Subsidiary pending the closing of such sale or
disposition; (8) any such restriction imposed by applicable law;
and (9) customary encumbrances or restrictions contained in
agreements of a Special Purpose Vehicle created in connection
with a Permitted Securitization that in the good faith of the
Board of Directors of the Company are necessary to effect such
Permitted Securitization.
SECTION 4.7. Limitation on Sale of Assets and
Subsidiary Stock. (a) The Company will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, consummate
any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value of the shares
and assets subject to such Asset Disposition (including as to the
value of all non cash consideration), as determined in good faith
by the Board of Directors of the Company in the case of values in
excess of $2.5 million or by the Company otherwise, (ii) at least
75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents
41
(except in the case of Asset Dispositions of a Closed Facility)
and (iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company or such
Restricted Subsidiary, as the case may be, (A) first, to the
extent the Company or any Restricted Subsidiary, as the case may
be, elects (or is required by the terms of any Senior
Indebtedness), to prepay, repay, redeem or purchase Senior
Indebtedness of the Company or Indebtedness (other than
Disqualified Stock) of a Wholly Owned Subsidiary (in each case
other than Indebtedness owed to the Company or an Affiliate of
the Company) within 360 days from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; (B)
second, to the extent of the balance of Net Available Cash after
application in accordance with clause (A), to the extent the
Company or such Restricted Subsidiary, as the case may be,
elects, to the investment by the Company or any Wholly Owned
Subsidiary in Additional Assets within 360 days from the later of
the date of such Asset Disposition or the receipt of such Net
Available Cash; (C) third, to the extent of the balance of such
Net Available Cash after application in accordance with clauses
(A) and (B), to make an Offer (as defined below) to Holders of
the Notes (and to holders of other Senior Subordinated
Indebtedness designated by the Company) to purchase Notes and
such other Senior Subordinated Indebtedness pursuant to and
subject to the conditions set forth in paragraph (b) of this
covenant; and (D) fourth, to the extent of the balance of such
Net Available Cash after application in accordance with clauses
(A), (B) and (C) to any other application or use not prohibited
by this Indenture; provided, however that in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to
clause (A) or (C) above, the Company or such Restricted
Subsidiary will permanently retire such Indebtedness and will
cause the related loan commitment or availability (if any) to be
permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased.
Notwithstanding the foregoing provisions, the Company
and its Restricted Subsidiaries shall not be required to apply
any Net Available Cash in accordance herewith except to the
extent that the aggregate Net Available Cash from all Asset
Dispositions which are not applied in accordance with this
covenant exceeds $10.0 million. Pending application of Net
Available Cash pursuant to this covenant, such Net Available Cash
shall be invested in Permitted Investments or to reduce
outstanding loans under any working capital facility.
For the purposes of this covenant, the following are
deemed to be cash: (x) the assumption by the transferee of
Indebtedness of the Company (other than Disqualified Stock of the
Company and other than Indebtedness that is subordinated to the
Notes) or Indebtedness of any Restricted Subsidiary and the
release of the Company or such Restricted Subsidiary from all
liability on such Indebtedness in connection with such Asset
Disposition and (y) securities received by the Company or any
42
Restricted Subsidiary from the transferee that are promptly
converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires
the purchase of Notes (and other Senior Subordinated
Indebtedness) pursuant to clause (a)(iii)(C) of this covenant,
the Company will be required to purchase Notes tendered pursuant
to an offer by the Company for the Notes (and other Senior
Subordinated Indebtedness) (the "Offer") at a purchase price of
100% of their principal amount (without premium) plus accrued
interest to the date of purchase (or, in respect of such other
Senior Subordinated Indebtedness, such lesser price, if any, as
may be provided for by the terms of such Senior Subordinated
Indebtedness) in accordance with the procedures (including
prorating in the event of oversubscription) set forth in this
Indenture. If the aggregate purchase price of Notes tendered
pursuant to the Offer is less than the Net Available Cash
allotted to the purchase thereof, the Company will apply the
remaining Net Available Cash in accordance with clause (iii)(D)
of paragraph (a) above. The Company shall not be required to make
an Offer for Notes (and other Senior Subordinated Indebtedness)
pursuant to this covenant if the Net Available Cash available
therefor (after application of the proceeds as provided in
clauses (A) and (B)) are less than $10.0 million for all Asset
Dispositions (which lesser amount shall be carried forward for
purposes of determining whether an Offer is required with respect
to the Net Available Cash from any subsequent Asset Disposition).
(c)(1) Promptly, and in any event within 30 days after
the Company becomes obligated to make an Offer, the Company shall
be obligated to deliver to the Trustee and send, by first-class
mail to each Holder, at the address appearing in the security
register, a written notice stating that the Holder may elect to
have his Notes purchased by the Company either in whole or in
part (subject to prorationing as hereinafter described in the
event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The
notice shall specify a purchase date not less than 30 days nor
more than 60 days after the date of such notice (the "Purchase
Date") and shall contain all instructions and materials necessary
to tender Notes pursuant to the Offer.
(2) Not later than the date upon which written notice
of an Offer is delivered to the Trustee as provided below,
the Company shall deliver to the Trustee an Officers'
Certificate as to (i) the amount of the Offer (the "Offer
Amount"), (ii) the allocation of the Net Available Cash
from the Asset Dispositions pursuant to which such Offer is
being made and (iii) the compliance of such allocation with
the provisions of Section 4.7(a). Upon the expiration of
the period for which the Offer remains open (the "Offer
Period"), the Company shall deliver to the Trustee for
cancellation the Notes or portions thereof which have been
properly tendered to and are to be accepted by the Company.
43
Not later than 11:00 a.m. (New York City time) on the
Purchase Date, the Company shall irrevocably deposit with
the Trustee or with a paying agent (or, if the Company is
acting as Paying Agent, segregate and hold in trust) an
amount in cash sufficient to pay the Offer Amount for all
Notes properly tendered to and accepted by the Company. The
Trustee shall, on the Purchase Date, mail or deliver
payment to each tendering Holder in the amount of the
purchase price.
(3) Holders electing to have a Note purchased will be
required to surrender the Note, together with all necessary
endorsements and other appropriate materials duly
completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase
Date. Holders will be entitled to withdraw their election
in whole or in part if the Trustee or the Company receives
not later than one Business Day prior to the Purchase Date,
a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note (which
shall be $1,000 or an integral multiple thereof) which was
delivered for purchase by the Holder, the aggregate
principal amount of such Note (if any) that remains subject
to the original notice of the Offer and that has been or
will be delivered for purchase by the Company and a
statement that such Holder is withdrawing his election to
have such Note purchased. If at the expiration of the Offer
Period the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the
Company so that only securities in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders
whose Notes are purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion
of the Notes surrendered.
(4) A Note shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the
surrendering Holder.
(d) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Notes pursuant to this covenant. To the extent that
the provisions of any securities laws or regulations conflict
with provisions of this covenant, the Company will comply with
the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this covenant by
virtue thereof.
SECTION 4.8. Limitation on Transactions With
Affiliates. (a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into or
44
conduct any transaction or series of related transactions
(including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate
Transaction") unless (i) the terms of such transaction are no
less favorable to the Company or such Restricted Subsidiary, as
the case may be, than those that could be obtained at the time of
such transaction in arm's-length dealings with a Person who is
not such an Affiliate; (ii) in the event such Affiliate
Transaction involves an aggregate amount in excess of $2.5
million, the terms of such transaction are set forth in writing
and shall have been approved by a majority of those members of
the Board of Directors having no personal stake in such Affiliate
Transaction (and such majority determines that such Affiliate
Transaction satisfies the criteria in clause (i) above) and (iii)
in the event such Affiliate Transaction involves an aggregate
amount in excess of $10.0 million, the Company has received a
written opinion from a nationally recognized independent
investment banking firm that such Affiliate Transaction is fair
to the Company and its Restricted Subsidiaries from a financial
point of view.
(b) The provisions of the foregoing paragraph (a)
shall not apply to (i) any Restricted Payment or Permitted
Investment permitted to be made pursuant to Section 4.5, (ii) any
issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors, (iii) the grant of stock
options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors,
(iv) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Company or
its Restricted Subsidiaries, but in any event not to exceed $5.0
million in the aggregate outstanding at any one time, (v) the
payment of reasonable fees and indemnities to directors of the
Company and its Restricted Subsidiaries who are not employees of
the Company or its Restricted Subsidiaries, (vi) any transaction
between the Company and a Wholly Owned Subsidiary or between
Wholly Owned Subsidiaries, (vii) the issuance or sale of any
Capital Stock (other than Disqualified Stock) of the Company,
(viii) (A) sales or other transfers or dispositions of customer
loans and related assets customarily transferred to a Special
Purpose Vehicle in connection with a Permitted Securitization and
(B) Investments in a Special Purpose Vehicle customarily made in
connection with a Permitted Securitization which are permitted by
Section 4.5; (ix) the Tax Sharing Agreement and the Commodity
Supply Agreement; and (x) any Jet Pro Sales Transactions with
Xxxx Agriculture or its affiliates which are on terms no less
favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of any
such transaction in arm's-length dealings with a Person who is
not an Affiliate.
45
SECTION 4.9. Change of Control. (a) Upon the
occurrence of a Change of Control, each Holder will have the
right to require the Company to repurchase all or any part of
such Holder's Notes at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest
due on the related interest payment date), in accordance with the
terms contemplated in Section 4.9(b).
(b) (i) Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder at its
registered address with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that
such Holder has the right to require the Company to
purchase any or all of such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the
date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest on
the relevant interest payment date);
(2) the circumstances and relevant facts regarding
such Change of Control (including information with respect
to pro forma historical income, cash flow and
capitalization after giving effect to such Change of
Control);
(3) the repurchase date (which shall be no earlier
than 30 days nor later than 60 days from the date such
notice is mailed); and
(4) the instructions determined by the Company,
consistent with this covenant, that a Holder must follow in
order to have its Notes purchased.
(c) Holders electing to have a Note purchased will be
required to surrender the Note, together with all necessary
endorsements and other appropriate materials duly completed, to
the Company at the address specified in the notice at least three
Business Days prior to the purchase date. Holders will be
entitled to withdraw their election if the Trustee or the Company
receives not later than three Business Days prior to the purchase
date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note which was
delivered for purchase by the Holder as to which such notice of
withdrawal is being submitted and a statement that such Holder is
withdrawing his election to have such Note purchased.
(d) On the purchase date, all Notes purchased by the
Company under this Section shall be delivered to the Trustee for
cancellation, and the Company shall pay the purchase price,
including premium, if any, plus accrued and unpaid interest, if
any, to the Holders entitled thereto.
46
(e) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Notes pursuant to this Section 4.9. To the extent
that the provisions of any securities laws or regulations
conflict with provisions of this Section 4.9, the Company will
comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this
Section 4.9 by virtue thereof.
(f) Notwithstanding the occurrence of a Change of
Control, the Company shall not be obligated to repurchase the
Notes or otherwise comply with this Section if the Company has
irrevocably elected to redeem all the Notes in accordance with
Article III; provided that the Company does not default in its
redemption obligations pursuant to such election.
SECTION 4.10. Limitation on Sale or Issuance of
Capital Stock of Restricted Subsidiaries. The Company shall not
sell or otherwise dispose of any Capital Stock of a Restricted
Subsidiary, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell or otherwise dispose of
any of its Capital Stock except (i) to the Company or a Wholly
Owned Subsidiary, (ii) if, immediately after giving effect to
such issuance, sale or other disposition, neither the Company nor
any of its Restricted Subsidiaries own any Capital Stock of such
Restricted Subsidiary, (iii) if, immediately after giving effect
to such issuance, sale or other disposition, such Restricted
Subsidiary continues to constitute a Restricted Subsidiary or
(iv) if, immediately after giving effect to such issuance, sale
or other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such
Person remaining after giving effect thereto would have been
permitted to be made under the covenant described under Section
4.5 if made on the date of such issuance, sale or other
disposition.
SECTION 4.11. Compliance with Laws. The Company shall
comply, and shall cause each of its Subsidiaries to comply, with
all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department,
commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of
their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the
aggregate reasonably likely to have a material adverse effect on
the financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole.
SECTION 4.12. Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate signed
by the chief executive officer, the chief financial officer or
47
the chief accounting officer stating that in the course of the
performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any Default or
Event of Default and whether or not the signers know of any
Default or Event of Default that occurred during such period. If
they do, the certificate shall describe the Default or Event of
Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall
comply with TIA ss. 314(a)(4).
SECTION 4.13. Further Instruments and Acts. Upon
reasonable request of the Trustee, the Company will execute and
deliver such further instruments and do such further acts as may
be reasonably necessary or proper to carry out more effectively
the purpose of this Indenture.
SECTION 4.14. Maintenance of Office or Agency. The
Company shall maintain the office or agency required under
Section 2.3. The Company shall give prior 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 11.2.
SECTION 4.15. Corporate Existence. Except as otherwise
permitted by Article V and Section 4.9, the Company shall do or
cause to be done, at its own cost and expense, all things
necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its
Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the material rights
(charter and statutory) and franchises of the Company and each
such Subsidiary; provided, however, that the Company shall not be
required to preserve, with respect to itself, any material right
or franchise and, with respect to any of its Subsidiaries, any
such existence, material right or franchise, if the Board of
Directors of the Company shall determine in good faith (such
determination to be evidenced by a board resolution certified by
the Secretary of the Company and furnished to the Trustee), that
the preservation thereof is no longer desirable in the conduct of
the business of the Company and the Subsidiaries, taken as a
whole.
SECTION 4.16. Payment of Taxes and Other Claims. The
Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes
and any penalties, interest and additions to taxes) levied or
imposed upon it or any of its Subsidiaries or properties of it or
any of its Subsidiaries and (ii) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries;
48
provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for
which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.17. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries
to, maintain its material properties in good working order and
condition (subject to ordinary wear and tear) and make or cause
to be made all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively
conduct and carry on its business, all as in the reasonable
judgment of the Company as is necessary so that the business
carried on by Company and its Subsidiaries may be actively
conducted; provided, however, that nothing in this Section 4.17
shall prevent the Company or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the good faith judgment
of the Board of Directors of the Company or the Subsidiary, as
the case may be (such judgment to be evidenced by a board
resolution certified by the Secretary of the Company and
furnished to the Trustee), desirable in the conduct of their
respective businesses and is not disadvantageous in any material
respect to the Holders.
(b) The Company shall provide or cause to be provided,
for itself and each of its Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds
that, in the good faith judgment of the Board of Directors of the
Company, are adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent
manner, with reputable insurers or with the government of the
United States of America, any state thereof or any agency or
instrumentality of such governments, in such amounts, with such
deductibles, and by such methods as shall be customary, in the
good faith judgment of the Board of Directors of the Company, for
companies similarly situated in the industry.
ARTICLE V
Successor Company
-----------------
SECTION 5.1. When the Company May Merge or Transfer
Assets. The Company will not consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a
series of transactions, all or substantially all its assets to,
any Person, unless:
49
(i) the resulting, surviving or transferee Person (the
"Successor Company") will be a Person organized and
existing under the laws of the United States of America,
any State thereof or the District of Columbia and the
Successor Company (if not the Company) will expressly
assume, by supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Notes and this
Indenture;
(ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an
obligation of the Successor Company or any Subsidiary as a
result of such transaction as having been Incurred by the
Successor Company or such Subsidiary at the time of such
transaction), no Default or Event of Default will have
occurred and be continuing;
(iii) immediately after giving effect to such
transaction, the Successor Company would be able to Incur
an additional $1.00 of Indebtedness under Section 4.3(a);
and
(iv) the Company will have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this
Indenture, as set forth in this Indenture.
The Successor Company will succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture, but the predecessor Company in the
case of a conveyance, transfer or lease of all or substantially
all its assets will not be released from the obligation to pay
the Principal of and interest on the Notes.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.1. Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in any payment of interest on
any Note when the same becomes due and payable, and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of any Note when the same becomes due and payable
at its Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise;
(3) the Company fails to comply with its obligations
under Article V;
50
(4) the Company fails to comply with its obligations
under Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or
4.10 (other than a failure to purchase Notes when required
pursuant to Section 4.7 or 4.9, which failure shall
constitute an Event of Default under Section 6.1(2)) and
such failure continues for 30 days after the notice
specified below;
(5) the Company fails to comply with any of its
agreements in the Notes or this Indenture (other than those
referred to in (1), (2), (3) or (4) above) and such failure
continues for 60 days after the notice specified below;
(6) the Company or any Restricted Subsidiary of the
Company fails to pay any Indebtedness within any applicable
grace period provided in such Indebtedness after final
maturity or the acceleration of any such Indebtedness by
the holders thereof because of a default if the total
amount of such Indebtedness unpaid or accelerated exceeds
$10.0 million or its foreign currency equivalent at the
time;
(7) the Company, Holdings or a Significant Subsidiary
of the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case in which it is the
debtor;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company, Holdings
or any Significant Subsidiary of the Company in an
involuntary case;
(B) appoints a Custodian of the Company, Holdings
or any Significant Subsidiary or for any substantial
part of its property of the Company, Holdings or any
Significant Subsidiary; or
51
(C) orders the winding up or liquidation of the
Company, Holdings or any Significant Subsidiary of the
Company;
(or any similar relief is granted under any foreign laws)
and the order, decree or relief remains unstayed and in
effect for 60 days); or
(9) any final, non-appealable judgment or decree for
the payment of money in excess of $10.0 million (net of any
amounts with respect to which a creditworthy insurance
company has acknowledged full liability in writing) is
rendered against the Company or any Restricted Subsidiary
of the Company remains outstanding for a period of 60 days
after such judgment and is not discharged, waived or stayed
within 10 days after notice.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx
Xxxxxx Code, or any similar Federal or state law for the relief
of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4), (5) and (9) of this
Section 6.1 is not an Event of Default until the Trustee by
notice to the Company or the Holders of at least 25% in aggregate
principal amount of the outstanding Notes by notice to the
Company gives notice of the Default and the Company does not cure
such Default within the time specified in said clause (4), (5) or
(9) after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is
a "Notice of Default".
The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of
an Officers' Certificate of any Event of Default under clause (6)
of this Section 6.1 and any event which with the giving of notice
or the lapse of time would become an Event of Default under
clause (4), (5) or (9) of this Section 6.1 and what action the
Company is taking or proposes to take with respect thereto. In
addition, the Company is required to deliver to the Trustee,
within 120 days after the end of each fiscal year a certificate
indicating whether the signers thereof know of any Default that
occurred during the previous year.
SECTION 6.2. Acceleration. If an Event of Default
(other than an Event of Default specified in Section 6.1(7) or
52
(8) with respect to the Company) occurs and is continuing and has
not been waived pursuant to Section 6.4, the Trustee may or, at
the request of Holders of at least 25% in aggregate principal
amount of the outstanding Notes shall, by notice to the Company
declare the Principal of and accrued but unpaid interest on all
the Notes to be due and payable. Upon such a declaration, such
Principal and interest shall be due and payable immediately;
provided, however, that if upon such declaration there are any
amounts outstanding under the Credit Agreement and the amounts
thereunder have not been accelerated, such principal and interest
shall be due and payable upon the earlier of the time such
amounts under the Credit Agreement are accelerated or five
Business Days after receipt by the Company and the Representative
under the Credit Agreement of such declaration, but only if such
Event of Default is then continuing. If an Event of Default
specified in Section 6.1(7) or (8) with respect to the Company
occurs and is continuing, the Principal of and accrued interest
on all the Notes will ipso facto become immediately due and
payable without any declaration or other act on the part of the
Trustee or any Holders. The Holders of a majority in aggregate
principal amount of the outstanding Notes by notice to the
Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if
all existing Events of Default have been cured or waived except
nonpayment of Principal or interest that has become due solely
because of acceleration and the Trustee has been paid all amounts
due to it pursuant to Section 7.7. No such rescission shall
affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available
remedy 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 accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are, to the extent permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may waive any past or
existing Default and its consequences except (i) a Default in the
payment of the Principal of or interest on a Note or (ii) a
Default in respect of a provision that under Section 9.2 cannot
be amended without the consent of each Noteholder affected. When
a Default is waived, it is deemed cured and ceases and any Event
of Default arising therefrom shall be deemed to have been cured
53
and to have ceased but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5. Control by Majority. Upon provision of
reasonable indemnity to the Trustee satisfactory to the Trustee,
the Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee.
However, the Trustee, which may rely on opinions of counsel, may
refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.1, that the Trustee determines
is unduly prejudicial to the rights of other Noteholders or would
involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder may not
pursue any remedy with respect to this Indenture or the Notes
unless:
(i) the Holder gives to the Trustee previous written
notice stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding make a
written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability
or expense;
(iv) the Trustee does not comply with such request
within 60 days after receipt of the request and the offer
of security or indemnity; and
(v) the Holders of a majority in principal amount of
the outstanding Notes do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Noteholder may not use this Indenture to prejudice
the rights of another Noteholder or to obtain a preference or
priority over another Noteholder.
SECTION 6.7. 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 Notes held by such Holder, on or after the respective due
dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
54
SECTION 6.8. Collection Suit by Trustee. If an Event
of Default specified in Section 6.1(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole
amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in
Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Noteholders allowed in any judicial
proceedings relative to the Company, its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other securities or property payable
or deliverable on any such claims and to distribute the same,
and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article VI, it shall pay out
the money or property in the following order:
FIRST: to the Trustee for amounts due under Section
7.7;
SECOND: to holders of Senior Indebtedness to the
extent required by Article X;
THIRD: to Noteholders for amounts due and unpaid on
the Notes for Principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Notes for Principal and interest,
respectively; and
FOURTH: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee, upon prior notice to the Company, may fix
a record date and payment date for any payment to Noteholders
pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Noteholder and the
Trustee a notice that states the record date, the payment date
and amount to be paid.
55
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 and
expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in aggregate principal
amount of the outstanding Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The
Company (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE VII
Trustee
-------
SECTION 7.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise 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 an Event of
Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and the TIA and no covenants or obligations shall
be implied in this Indenture against the Trustee; 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 furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
56
examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own wilful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(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 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this Section.
(e) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required
by law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds to believe that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section
7.1 and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may
rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
57
(c) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however,
that the Trustee's conduct does not constitute wilful misconduct
or negligence.
(e) The Trustee may consult with counsel of its
selection, and the written advice or opinion of counsel with
respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in reliance on, and accordance
with, the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of
any Default or Event of Default with respect to the Notes unless
either (1) a Trust Officer shall have actual knowledge of such
Default or Event of Default or (2) written notice of such Default
or Event of Default shall have been given to the Trustee by the
Company or any other obligor on the Notes or by any Holder of the
Notes.
SECTION 7.3. 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
respective Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. 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 in any document issued in connection
with the sale of the Notes or in the Notes other than the
Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default occurs
and is continuing and if it is known to the Trustee, the Trustee
must mail to each Noteholder notice of the Default within 30 days
58
after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in
payment of the principal of, premium (if any) or interest on any
Note, the Trustee may withhold notice if and so long as a
committee of its Trust Officers in good faith determines that
withholding the notice is not opposed to the interests of
Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As
promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior
to July 15 in each year, the Trustee shall mail to each
Noteholder a brief report dated as of such May 15 that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall promptly deliver to the Company a copy
of any report it delivers to Holders pursuant to this Section
7.6.
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Trustee with the SEC and each
stock exchange (if any) on which the Notes are listed. The
Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time such compensation for
its services as the Company and the Trustee shall from time to
time agree in writing. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for
all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to such compensation
for its services, except any such expense, disbursement or
advance as may arise from its negligence, wilful misconduct or
bad faith, unless the Trustee shall have complied with the
applicable standard of care required by the TIA. Such expenses
shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Trustee shall provide the Company
reasonable notice of any expenditure not in the ordinary course
of business; provided that prior approval by the Company of any
such expenditure shall not be a requirement for the making of
such expenditure nor for reimbursement by the Company thereof.
The Company shall indemnify each of the Trustee and any
predecessor Trustees against any and all loss, damage, claim,
liability or expense (including attorneys' fees and expenses)
(other than taxes applicable to the Trustee's compensation
hereunder) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. 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. The Trustee may have
59
separate counsel, and the Company will pay the reasonable fees
and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own wilful
misconduct, negligence or bad faith, unless the Trustee shall
have complied with the applicable standard of care required by
the TIA. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on
all money or property held or collected by the Trustee other than
money or property held in trust to pay Principal of and interest
on particular Notes.
The Company's payment obligations pursuant to this
Section 7.7 shall survive the resignation or removal of the
Trustee and discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section
6.1(7) or (8) with respect to the Company, the expenses are
intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may
resign at any time with 30 days notice to the Company. The
Holders of a majority in principal amount of the Notes then
outstanding, may remove the Trustee with 30 days written notice
to the Trustee and the Company and may appoint a successor
Trustee reasonably acceptable to the Company. The Company may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge
of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns, is removed by the Company or
by the Holders of a majority in principal amount of the Notes and
such Holders do not reasonably promptly appoint a successor
Trustee, 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.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
60
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of 10% in principal
amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding the replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under
Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting,
surviving or transferee corporation without any further act shall
be the successor Trustee, provided that such corporation shall be
eligible under this Article VII and TIA Section 3.10(a).
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed
to the trusts created by this Indenture any of the Notes shall
have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and
in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in
the Notes or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA ss.
310(a). The Trustee shall have a combined capital and surplus of
at least $250,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or
participation in other securities of the Company are outstanding
if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
61
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with ss. TIA 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.1. Discharge of Liability on Notes;
Defeasance. (a) When (i) the Company delivers to the Trustee all
outstanding Notes (other than Notes replaced pursuant to Section
2.7) for cancellation or (ii) all outstanding Notes have become
due and payable, whether at maturity or as a result of the
mailing of a notice of redemption pursuant to Article III hereof
or the Notes will become due and payable at their Maturity within
91 days, or the Notes are to be called for redemption within 91
days under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company, and, in each case of this clause
(ii), the Company irrevocably deposits or causes to be deposited
with the Trustee funds sufficient to pay at maturity or upon
redemption all outstanding Notes, including interest thereon to
maturity or such redemption date (other than Notes replaced
pursuant to Section 2.7), and if in either case the Company pays
all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 8.1(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied
by an Officers' Certificate and an Opinion of Counsel from the
Company that all conditions precedent provided herein for
relating to satisfaction and discharge of this Indenture have
been complied with and at the cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at
any time may terminate (i) all of its obligations under the Notes
and this Indenture ("legal defeasance option") or (ii) its
obligations under Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9
and 4.10 and the operation of Sections 6.1(4), 6.1(5), 6.1(6),
6.1(7) (but only with respect to a Significant Subsidiary),
6.1(8) (but only with respect to a Significant Subsidiary),
6.1(9), 5.1(iii) ("covenant defeasance option"). For this
purpose, such covenant defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default
under Section 5.1(iii) or Section 6.1(4) or (5). The Company may
62
exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option,
payment of the Notes may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance
option, payment of the Notes may not be accelerated because of an
Event of Default specified in Section 6.1(4), 6.1(5), 6.1(6),
6.1(7) (but only with respect to a Significant Subsidiary),
6.1(8) (but only with respect to a Significant Subsidiary) or
6.1(9) or because of the failure of the Company to comply with
Section 5.1(iii).
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in
writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding clauses (a) and (b) above, the
Company's obligations in Sections 2.3, 2.4, 2.5, 2.7, 4.1, 4.11,
4.14, 4.15, 4.16, 4.17, 7.7, 7.8, 8.4, 8.5 and 8.6 shall survive
until the Notes have been paid in full. Thereafter, the Company's
obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company
may exercise its legal defeasance option or its covenant
defeasance option only if:
(i) the Company irrevocably deposits or causes to be
deposited in trust with the Trustee money or U.S.
Government Obligations which through the scheduled payment
of Principal and interest in respect thereof in accordance
with their terms will provide cash at such times and in
such amounts as will be sufficient to pay Principal and
interest when due on all outstanding Notes (except Notes
replaced pursuant to Section 2.7) to maturity or
redemption, as the case may be;
(ii) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent
accountants expressing their opinion that the payments of
Principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay
Principal and interest when due on all outstanding Notes
(except Notes replaced pursuant to Section 2.7) to maturity
or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and
during the 91-day period no Default specified in Section
6.1(7) or (8) with respect to the Company occurs which is
continuing at the end of the period;
63
(iv) the deposit does not constitute a default under
any other material agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company
Act of 1940;
(vi) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Noteholders will
not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Noteholders will not
recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amounts
and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not
occurred; and
(viii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance and
discharge of the Notes as contemplated by this Article VIII
have been complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of
Notes at a future date in accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article VIII. It shall apply
the deposited money and the money from U.S. Government
Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to
the payment of Principal of and interest on the Notes.
SECTION 8.4. Repayment to Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request
any excess money or securities held by them at any time.
64
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of
Principal or interest or Additional Interest, if any, that
remains unclaimed for one year after such Principal and interest
and Additional Interest, if any, have become due and payable,
and, thereafter, Noteholders entitled to the money must look to
the Company for payment as general creditors.
SECTION 8.5. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the Principal and interest
received on such U.S. Government Obligations other than any such
tax, fee or other charge which by law is for the account of the
Holders of the defeased Notes; provided that the Trustee shall be
entitled to charge any such tax, fee or other charge to such
Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations
in accordance with this Article VIII by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that, (a) if the
Company has made any payment of interest on or Principal of any
Notes following the reinstatement of their obligations, the
Company shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent and (b) unless
otherwise required by any legal proceeding or any order or
judgment of any court or governmental authority, the Trustee or
Paying Agent shall return all such money and U.S. Government
Obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the
Company's obligations has occurred and continues to be in effect.
ARTICLE IX
Amendments
----------
SECTION 9.1. Without Consent of Holders. The Company
and the Trustee may amend this Indenture or the Notes without
notice to or consent of any Noteholder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
65
(ii) to comply with Article V;
(iii) to provide for uncertificated Notes in addition
to or in place of certificated Notes (provided, that the
uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code or in a manner such
that the uncertificated Notes are as described in Section
163(f)(2)(B) of the Code);
(iv) to add Guarantees with respect to the Notes;
(v) to secure the Notes;
(vi) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(vii) to make any change that does not adversely
affect the rights of any Noteholder (including changes to
effect the issuance of Subsequent Add-on Notes and to
effect the provisions of Section 1.5); and
(viii) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under
the TIA.
An amendment under this Section may not make any change that
adversely affects the rights under Article X of any holder of
Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or their Representative) consent to such
change.
After an amendment under this Section 9.1 becomes
effective, the Company shall mail to Noteholders a notice briefly
describing such amendment. The failure to give such notice to all
Noteholders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Company and
the Trustee may amend this Indenture or the Notes without notice
to any Noteholder but with the written consent of the Holders of
at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a
tender offer or exchange for Notes) and any past default or
compliance with any provision may be waived with the consent of
the Holders of the majority in principal amount of the Notes then
outstanding. However, without the consent of each Noteholder
affected, an amendment may not:
(i) reduce the amount of Notes whose Holders must
consent to an amendment;
(ii) reduce the rate of or extend the time for payment
of interest on any Note;
66
(iii) reduce the principal of or extend the Stated
Maturity of any Note;
(iv) reduce the premium payable upon the redemption of
any Note or change the time at which any Note may be
redeemed in accordance with Article III;
(v) make any Note payable in money other than that
stated in the Note;
(vi) impair the right of any Holder to receive payment
of Principal of and interest on such Holder's Notes on or
after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such
Holder's Notes;
(vii) make any change in the second sentence of this
Section 9.2; or
(viii) make any change to the subordination provisions
of Article X that would adversely affect the Noteholders.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form of
any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
An amendment under this section may not make any
change that adversely affects the rights under Article X of any
holder of Senior Indebtedness then outstanding unless the holders
of such Senior Indebtedness (or their Representatives) consent to
such change.
After an amendment under this Section 9.2 becomes
effective, the Company shall mail to Noteholders a notice briefly
describing such amendment. The failure to give such notice to all
Noteholders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Notes shall comply with
the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and
Waivers. Until an amendment or waiver becomes effective, consent
to it by a Holder of a Note is a continuing consent by the Holder
and every subsequent Holder of that Note or portion of the Note
that evidences the same debt as the consenting Holder's Note,
even if notation of the consent or waiver is not made on the
Note. However, any such Holder or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee or the Company
receives written notice of revocation before the date on which
the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Notes have
67
consented (and not theretofore revoked such consent) to the
amendment or waiver. After an amendment or waiver becomes
effective, it shall bind every Noteholder.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Noteholders
entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were
Noteholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
SECTION 9.5. Notation on or Exchange of Notes. If an
amendment 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 regarding the
changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determine, 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 to issue a new Note shall not affect the
validity of such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article IX
if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee
may but need not sign it. In signing such amendment the Trustee
shall be entitled to receive indemnity reasonably satisfactory to
it and to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, in addition to the documents required
by Section 11.4, an Officers' Certificate and an Opinion of
Counsel stating that such amendment complies with the provisions
of this Article IX.
SECTION 9.7. Payment for Consent. Neither the Company
nor any affiliate of the Company shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for, or as an
inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid to all Holders that so
consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
68
ARTICLE X
Subordination of the Notes
--------------------------
SECTION 10.1. Agreement To Subordinate. The Company
agrees, and each Noteholder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of
payment, to the extent and in the manner provided in this Article
X, to the prior payment in full in cash or cash equivalents of
all Senior Indebtedness of the Company whether outstanding on the
Issue Date or thereafter incurred, including the Company's
obligations under the Credit Agreement, and that the
subordination is for the benefit of and enforceable by the
holders of such Senior Indebtedness. The Notes shall in all
respects rank pari passu with all other Senior Subordinated
Indebtedness of the Company and only (i) Indebtedness of the
Company and (ii) all existing and future Indebtedness of any
Subsidiary of the Company in each case which is Senior
Indebtedness shall rank senior to the Notes in accordance with
the provisions set forth herein. All provisions of this Article X
shall be subject to Section 10.12.
SECTION 10.2. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of the Company to
creditors upon a total or partial liquidation or a total or
partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness of the Company
will be entitled to receive payment in full in
cash or cash equivalents of such Senior
Indebtedness before Noteholders are entitled to
receive any payment of Principal of or interest
on the Notes; and
(2) until such Senior Indebtedness is paid in full in
cash or cash equivalents, any payment or
distribution to which Noteholders would be
entitled but for this Article X will be made to
holders of such Senior Indebtedness as their
interests may appear, except that Noteholders may
receive shares of stock and any debt securities
that are subordinated to such Senior
Indebtedness, and to any debt securities received
by holders of such Senior Indebtedness, in each
case to at least the same extent as the Notes are
subordinated to Senior Indebtedness of the
Company.
SECTION 10.3. Default on Senior Indebtedness of the
Company. The Company may not pay principal of, premium (if any)
or interest on, the Notes or make any deposit pursuant to Section
8.1 and may not repurchase, redeem or otherwise retire any Notes
69
(collectively, "pay the Notes") if (i) any Designated Senior
Indebtedness is not paid in full in cash or cash equivalents when
due or (ii) any other default on Designated Senior Indebtedness
occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms unless, in either case,
(x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Designated Senior
Indebtedness has been paid in full in cash or cash equivalents.
However, the Company may pay the Notes without regard to the
foregoing if the Company and the Trustee receive written notice
approving such payment from the Representative of the Designated
Senior Indebtedness with respect to which either of the events
set forth in clause (i) or (ii) of the immediately preceding
sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (i) or
(ii) of the second preceding sentence) with respect to any
Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods,
the Company may not pay the Notes for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage
Notice") of such default from the Representative of the holders
of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice, (ii) because the default
giving rise to such Blockage Notice is no longer continuing or
(iii) because such Designated Senior Indebtedness has been repaid
in full). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions
described in the first sentence of this Section), unless the
holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may
resume payments on the Notes after the end of such Payment
Blockage Period. Subject to the provisions described in the first
sentence of this Section 10.3, the Notes shall not be subject to
more than one Payment Blockage Period in any consecutive 360-day
period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness during such period. For purposes
of this Section, no default or event of default which existed or
was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or
be made, the basis of the commencement of a subsequent Payment
Blockage Period by the Representative of such Designated Senior
Indebtedness, whether or not within a period of 360 consecutive
days, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive
days.
70
SECTION 10.4. Acceleration of Payment of Notes. If
payment of the Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness or the
Representative of such holders by written notice to the address
specified in writing to the Trustee from time to time.
SECTION 10.5. When Distribution Must Be Paid Over. If
a distribution is made to Noteholders that because of this
Article X should not have been made to them, the Noteholders who
receive the distribution shall hold it in trust for holders of
Senior Indebtedness of the Company and pay it over to them or
their Representative as their interests may appear.
SECTION 10.6. Subrogation. After all Senior
Indebtedness of the Company is paid in full and until the Notes
are paid in full, Noteholders shall be subrogated to the rights
of holders of such Senior Indebtedness to receive distributions
applicable to such Senior Indebtedness to the extent that
distributions otherwise payable to the Holders of the Notes have
been applied to the payment of Senior Indebtedness. A
distribution made under this Article X to holders of such Senior
Indebtedness which otherwise would have been made to Noteholders
is not, as between the Company and Noteholders, a payment by the
Company on such Senior Indebtedness.
SECTION 10.7. Relative Rights. This Article X defines
the relative rights of Noteholders and holders of Senior
Indebtedness of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Noteholders,
the obligation of the Company, which is absolute and
unconditional, to pay principal of premium, if any, and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of the Notes
and creditors of the Company other than their rights in
relation to holders of Senior Indebtedness; or
(3) prevent the Trustee or any Noteholder from
exercising its available remedies upon a Default, subject
to the rights of holders of Senior Indebtedness of the
Company to receive distributions otherwise payable to
Noteholders.
SECTION 10.8. Subordination May Not Be Impaired by
Company. No right of any holder of Senior Indebtedness of the
Company to enforce the subordination of the Indebtedness
evidenced by the Notes shall be impaired by any act or failure to
act by the Company or by its failure to comply with this
Indenture.
SECTION 10.9. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.3, the Trustee or Paying Agent may
continue to make payments on the Notes and shall not be charged
71
with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than two Business
Days prior to the date of such payment, a Trust Officer of the
Trustee receives written notice satisfactory to it that payments
may not be made under this Article X. The Company, the Registrar
or co-registrar, the Paying Agent, a Representative or a holder
of Senior Indebtedness of the Company may give the notice;
provided, however, that, if an issue of Senior Indebtedness of
the Company has a Representative, only the Representative may
give the notice.
The Trustee in its individual or any other capacity
may hold Senior Indebtedness of the Company with the same rights
it would have if it were not Trustee. The Registrar and
co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth
in this Article X with respect to any such Senior Indebtedness
which may at any time be held by it, to the same extent as any
other holder of such Senior Indebtedness; and nothing in Article
VII shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article X shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.
SECTION 10.10. Distribution or Notice to
Representative. Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness of the Company, the
distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article X Not To Prevent Events of
Default or Limit Right To Accelerate. The failure to make a
payment pursuant to the Notes by reason of any provision in this
Article X shall not be construed as preventing the occurrence of
a Default or an Event of Default. Nothing in this Article X shall
have any effect on the right of the Noteholders or the Trustee to
accelerate the maturity of the Notes.
SECTION 10.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government
Obligations held in trust under Article VIII by the Trustee for
the payment of Principal of and interest on the Notes and which
were deposited in accordance with the terms and conditions of
Article VIII and not in violation of Section 10.3 hereof shall
not be subordinated to the prior payment of any Senior
Indebtedness of the Company or subject to the restrictions set
forth in this Article X, and none of the Noteholders shall be
obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any
payment or distribution pursuant to this Article X, the Trustee
and the Noteholders shall be entitled to rely (i) upon any order
72
or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.2 are
pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the
Trustee or to the Noteholders or (iii) upon the Representatives
for the holders of Senior Indebtedness of the Company for the
purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article X. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this
Article X, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights
of such Person under this Article X, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.1 and 7.2
shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article X.
SECTION 10.14. Trustee To Effectuate Subordination.
Each Noteholder by accepting a Note authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination
between the Noteholders and the holders of Senior Indebtedness of
the Company as provided in this Article X and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the
Company and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Noteholders or the Company
or any other Person, money or assets to which any holders of such
Senior Indebtedness shall be entitled by virtue of this Article X
or otherwise.
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination Provisions. Each Noteholder by
accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Notes, to
acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of such Senior Indebtedness shall be
deemed conclusively to have relied on such subordination
73
provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.1. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall
control.
SECTION 11.2. Notices. Any notice or communication
shall be in writing and delivered in person or mailed by
first-class mail, telecopier or overnight air courier
guaranteeing next day delivery addressed as follows:
if to the Company:
Purina Xxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xx.Xxxxx, Xxxxxxxx 00000
Attention: Secretary
with a copy to:
Clearly, Xxxxxxxx, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
if to the Trustee:
The First National Bank of Chicago
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Corporate Trust Administration
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication (other than those sent to
Holders) shall be deemed to have been given or made as of the
date so delivered if personally delivered; when receipt is
confirmed if delivered by overnight air courier; when receipt is
74
acknowledged, if faxed; and five (5) Business Days after mailing
if sent by first class mail.
Any notice or communication mailed to a Noteholder
shall be mailed to the Noteholder at the Noteholder's address as
it appears on the registration books of the Registrar and shall
be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency
with respect to other Noteholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 11.3. Communication by Holders with other
Holders. Noteholders may communicate pursuant to TIA ss. 312(b)
with other Noteholders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA ss. 312(c).
SECTION 11.4. 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:
(i) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent, if
any, provided for in this Indenture relating to the
proposed action have been complied with.
SECTION 11.5. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall
include:
(i) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(ii) 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;
75
(iii) a statement that, in the opinion of such individual,
he has made such examination or investigation as is
reasonably necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been
complied with.
SECTION 11.6. When Notes Disregarded. 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 or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to
be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Trust Officer of
the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Notes outstanding at the time
shall be considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules in accordance
with the Trustee's customary practices for action by or at a
meeting of Noteholders. The Registrar and the Paying Agent may
make reasonable rules in accordance with customary practices for
their functions.
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York. If a payment date
is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period. If a regular record date
is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under
the Notes or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. None of
Xxxx Agriculture, Xxxx Industries, Holdings or any of their
Affiliates (other than the Company) will be parties to this
Indenture or responsible for any payments or other claims in
respect of the Notes or this Indenture. By accepting a Note,
76
each Noteholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 11.11. Successors. All agreements of the
Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.12. Severability. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or
unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.13. Multiple Originals. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 11.14. Variable Provisions. The Company
initially appoints the Trustee as Paying Agent and Registrar and
custodian with respect to any Global Notes.
SECTION 11.15. Qualification of Indenture. The Company
shall qualify this Indenture under the TIA in accordance with the
terms and conditions of the Registration Rights Agreement and
shall pay all reasonable costs and expenses (including attorneys'
fees for the Company, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and
expenses of qualification of this Indenture and the Notes and
printing this Indenture and the Notes. The Trustee shall be
entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it
may reasonably request in connection with any such qualification
of this Indenture under the TIA.
SECTION 11.16. Table of Contents; Headings. The table
of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience
of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
PURINA XXXXX, INC.
By: /s/ August X.Xxxxxxxx
---------------------------
Name: August X. Xxxxxxxx
Title: Vice President,
General Counsel and
Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice
President
RULE 144A APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS
PURSUANT TO RULE 144A
PROVISIONS RELATING TO INITIAL NOTES,
-------------------------------------
PRIVATE EXCHANGE NOTES, EXCHANGE NOTES
--------------------------------------
AND SUBSEQUENT ADD-ON NOTES
---------------------------
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix the following
terms shall have the meanings indicated below:
"Depositary" means The Depository Trust Company, its
nominees and their respective successors and assigns.
"Exchange Notes" means the 9% Senior Subordinated
Notes Due 2010 to be issued pursuant to this Indenture in
connection with a Registered Exchange Offer pursuant to the
Registration Rights Agreement.
"Initial Purchasers" means Credit Suisse First Boston
Corporation and Chase Securities Inc.
"Initial Notes" means the 9% Senior Subordinated Notes
Due 2010, issued under this Indenture on or about the date
hereof.
"Private Exchange" means the offer by the Company,
pursuant to the Registration Rights Agreement, to the Initial
Purchasers to issue and deliver to each Initial Purchaser, in
exchange for the Initial Notes held by the Initial Purchaser as
part of its initial distribution, a like aggregate principal
amount of Private Exchange Notes.
"Private Exchange Notes" means the 9% Senior
Subordinated Notes Due 2010, if any, to be issued pursuant to
this Indenture to the Initial Purchasers in a Private Exchange.
"Purchase Agreement" means the Purchase Agreement
dated March 9, 1998, between the Company and the Initial
Purchasers.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registered Exchange Offer" means the offer by the
Company, pursuant to the Registration Rights Agreement, to
certain Holders of Initial Notes, to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate
2
principal amount of Exchange Notes registered under the
Securities Act.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of March 9, 1998 between the Company
and the Initial Purchasers.
"Rule 144A" means Rule 144A under the Securities Act.
"Notes" means the Initial Notes, the Subsequent Add-on
Notes, the Exchange Notes and the Private Exchange Notes, treated
as a single class.
"Securities Act" means the Securities Act of 1933, as
amended.
"Notes Custodian" means the custodian with respect to
a Global Note or Global Notes (as appointed by the Depositary),
or any successor person thereto and shall initially be the
Trustee.
"Shelf Registration Statement" means the registration
statement issued by the Company, in connection with the offer and
sale of Initial Notes or Private Exchange Notes, pursuant to the
Registration Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or
are required to bear the legend set forth in Section 2.3(d)
hereto.
1.2 Other Definitions
Defined in
----------
Term Section:
---- -------
"Agent Members" .............................................2.1(b)
"Global Note"................................................2.1(a)
"Rule 144A" .................................................2.1(a)
2. The Notes.
2.1 Form and Dating.
The Initial Notes are being offered and sold by
the Company pursuant to the Purchase Agreement.
(a) Global Notes. Initial Notes offered and sold
as provided in the Purchase Agreement shall be issued initially
in the form of one or more permanent global Notes in definitive,
fully registered form without interest coupons with the global
securities legend and restricted securities legend set forth in
Exhibit 1 hereto (each, a "Global Note"), which shall be
deposited on behalf of the purchasers of the Initial Notes
represented thereby with the Trustee as custodian for the
Depositary (or with such other custodian as the Depositary may
3
direct), and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.1(b)
shall apply only to a Global Note deposited with or on behalf of
the Depositary.
The Company shall execute and the Trustee shall,
in accordance with this Section 2.1(b), authenticate and deliver
initially one or more Global Notes that (a) shall be registered
in the name of the Depositary for such Global Note or Global
Notes or the nominee of such Depositary and (b) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as custodian for
the Depositary.
Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depositary
or by the Trustee as the custodian of the Depositary or under
such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in
any Global Note.
(c) Certificated Notes. Except as provided in
this Section 2.1 or Section 2.3 or 2.4, owners of beneficial
interests in Global Notes will not be entitled to receive
physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and
deliver: (1) Initial Notes for original issue in an aggregate
principal amount of U.S. $350 million, (2) Exchange Notes or
Private Exchange Notes for issue only in a Registered Exchange
Offer or a Private Exchange, respectively, pursuant to the
Registration Rights Agreement, for a like principal amount of
Initial Notes and (3) Subsequent Add-on Notes as may be offered
subsequent to the Issue Date in an aggregate principal amount not
to exceed U.S. $150 million (provided, however, that no Note
representing Subsequent Add-on Notes may be authenticated in an
aggregate principal amount of less than U.S. $25 million), in
each case upon a written order of the Company signed by two
4
Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the
amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and whether the
Notes are to be Initial Notes, Exchange Notes, Private Exchange
Notes or Subsequent Add-on Notes. The aggregate principal amount
of all Notes outstanding at any time may not exceed U.S. $500
million except as provided in Section 2.7 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. (i) The transfer and exchange of Global Notes or
beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depositary therefor. A transferor of a
beneficial interest in a Global Note shall deliver to the
Registrar a written order given in accordance with the
Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a
beneficial interest in the Global Note. The Registrar shall, in
accordance with such instructions instruct the Depositary to
credit to the account of the Person specified in such
instructions a beneficial interest in the Global Note and to
debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(ii) Notwithstanding any other provisions of this
Appendix (other than the provisions set forth in Section
2.4), a Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary of another
nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such
successor Depositary.
(iii) In the event that a Global Note is exchanged for
Notes in definitive registered form pursuant to Section 2.4
of this Appendix or Section 2.9 of this Indenture prior to
the consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with
respect to such Notes, such Notes may be exchanged only in
accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the
reverse of the Initial Notes intended to ensure that such
transfers comply with Rule 144A or Regulation S, as the
case may be) and such other procedures as may from time to
time be adopted by the Company.
(b) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Note certificate evidencing the
Global Notes (and all Notes issued in exchange therefor or
5
in substitution thereof) shall bear a legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
ISSUER THAT (A) THIS NOTE MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) OUTSIDE THE UNITED STATES IN A TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(iii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (iv) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE."
(ii) Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note
represented by a Global Note) pursuant to Rule 144 under
the Securities Act, in the case of any Transfer Restricted
Note that is represented by a Global Note, the Registrar
shall permit the Holder thereof to exchange such Transfer
Restricted Note for a certificated Note that does not bear
the legend set forth above and rescind any restriction on
the transfer of such Transfer Restricted Note, if the
Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the
reverse side of the Note).
(iii) After a transfer of any Initial Notes or Private
Exchange Notes during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial
Notes or Private Exchange Notes, as the case may be, all
requirements pertaining to legends on such Initial Notes or
such Private Exchange Notes will cease to apply, but the
requirements requiring such Initial Notes or such Private
6
Exchange Notes issued to certain Holders be issued in
global form will continue to apply, and Initial Notes or
Private Exchange Notes in global form without legends will
be available to the transferee of the Holder of such
Initial Notes or Private Exchange Notes upon exchange of
such transferring Holder's Initial Notes or Private
Exchange Notes or directions to transfer such Holder's
interest in the Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Notes pursuant to which
Holders of such Initial Notes are offered Exchange Notes in
exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued
to certain Holders be issued in global form will continue
to apply and Initial Notes in global form with the
restricted Notes legend set forth in Exhibit 1 hereto will
be available to Holders of such Initial Notes that do not
exchange their Initial Notes, and Exchange Notes in global
form without the restriction securities legend will be
available to Holders that exchange such Initial Notes in
such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Notes pursuant to which Holders of
such Initial Notes are offered Private Exchange Notes in
exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued
to certain Holders be issued in global form will still
apply, and Private Exchange Notes in global form with the
restricted securities legend set forth in Exhibit 1 hereto
will be available to Holders that exchange such Initial
Notes in such Private Exchange.
(c) Cancellation or Adjustment of Global Note. At such
time as all beneficial interests in a Global Note have either
been exchanged for certificated Notes, redeemed, repurchased or
canceled, such Global Note shall be returned to the Depositary
for cancellation or retained and canceled by the Trustee. At any
time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed,
repurchased or canceled, the principal amount of Notes
represented by such Global Note shall be reduced and an
adjustment shall be made on the books and records of the Trustee
(if it is then the Notes Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Notes
Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and
Exchanges of Notes.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
7
authenticate certificated Notes and Global Notes at the
Registrar's or any co-registrar's request.
(ii) No service charge shall be made for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer
tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.6, 4.7, 4.9 and
Section 9.5 of the Indenture.
(iii) The Registrar or any co-registrar shall not be
required to register the transfer of or exchange of (a) any
certificated Note selected for redemption in whole or in
part pursuant to Article III of this Indenture, except the
unredeemed portion of any certificated Note being redeemed
in part, or (b) any Note for a period beginning 15 Business
Days before the mailing of a notice of an offer to
repurchase or redeem Notes or 15 Business Days before an
interest payment date.
(iv) Prior to the due presentation for registration
of transfer of any Note, the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar may deem
and treat the person in whose name a Note is registered as
the absolute owner of such Note for the purpose of
receiving payment of Principal of and interest on such Note
and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the
same debt and shall be entitled to the same benefits under
this Indenture as the Notes surrendered upon such transfer
or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Note, a
member of, or a participant in the Depositary or other
Person with respect to the accuracy of the records of the
Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be
given to the Holders and all payments to be made to Holders
under the Notes shall be given or made only to or upon the
8
order of the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Note).
The rights of beneficial owners in any Global Note shall be
exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or
among Depositary participants, members or beneficial owners
in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine
the same to determine substantial compliance as to form
with the express requirements hereof.
2.4 Certificated Notes.
(a) A Global Note deposited with the Depositary or
with the Trustee as custodian for the Depositary pursuant to
Section 2.1 shall be transferred to the beneficial owners thereof
in the form of certificated Notes in an aggregate principal
amount equal to the principal amount of such Global Note, in
exchange for such Global Note, only if such transfer complies
with Section 2.3 and (i) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for such
Global Note or if at any time such Depositary ceases to be a
"clearing agency" registered under the Exchange Act and a
successor depositary is not appointed by the Company within 90
days of such notice, (ii) an Event of Default has occurred and is
continuing or (iii) the Company, in its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of
certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the
beneficial owners thereof pursuant to this Section shall be
surrendered by the Depositary to the Trustee, to be so
transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate
principal amount of certificated Initial Notes of authorized
denominations. Any portion of a Global Note transferred pursuant
to this Section shall be executed, authenticated and delivered
only in denominations of $1,000 and any integral multiple thereof
and registered in such names as the Depositary shall direct. Any
certificated Initial Note delivered in exchange for an interest
in the Global Note shall, except as otherwise provided by Section
9
2.3(d), bear the restricted securities legend set forth in
Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of either of the
events specified in Section 2.4(a), the Company will promptly
make available to the Trustee a reasonable supply of certificated
Notes in definitive, fully registered form without interest
coupons.
EXHIBIT 1
TO RULE 144A
APPENDIX
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, 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 IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THIS INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i) INSIDE THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) OUTSIDE
THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(i) THROUGH (iv) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
2
PURINA XXXXX, INC.
No. __ Principal Amount $_____________
CUSIP NO. _________
9% Senior Subordinated Notes Due 2010
Purina Xxxxx, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of
________________________ Dollars on March 15, 2010.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on
the other side of this Note.
Dated: Xxxxx 00, 0000 XXXXXX XXXXX, INC.
By___________________________________
By___________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in the Indenture.
The First National Bank of Chicago
as Trustee
By____________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL NOTE]
(Reverse of Note)
9% Senior Subordinated Notes Due 2010
1. Interest
Purina Xxxxx, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"),
promises to pay interest on the principal amount of this Note at
the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this
Note at a rate of 0.50% per annum (increasing by 0.50% per annum
at the end of each 90-day period thereafter) from and including
the date on which any such Registration Default shall occur to
but excluding the date on which all Registration Defaults have
been cured, calculated on the principal amount of this Note as of
the date on which such interest is payable; provided, however,
that in no event shall the aggregate amount of such additional
interest exceed 1.00% per annum. Such interest is payable in
addition to any other interest payable from time to time with
respect to this Note. The Trustee will not be deemed to have
notice of a Registration Default until it shall have received
actual notice of such Registration Default.
The Company will pay interest semiannually on March 15
and September 15 of each year, commencing September 15, 1998.
Interest on the Notes will accrue from the most recent date to
which interest has been paid on the Notes or, if no interest has
been paid, from March 12, 1998. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the
date on which any Principal of or interest on any Note is due and
payable, the Company shall irrevocably deposit with the Trustee
or the Paying Agent money sufficient to pay such Principal and/or
interest. The Company will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at
the close of business on the March 1 or September 1 next
preceding the interest payment date even if Notes are cancelled,
repurchased or redeemed after the record date and on or before
the interest payment date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay
Principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. However, the Company may pay Principal and interest by
2
check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar
Initially, The First National Bank of Chicago, a
national banking association (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice to any
Noteholder. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Company issued the Notes under an Indenture dated
as of March 12, 1998 (as it may be amended or supplemented from
time to time in accordance with the terms thereof, the
"Indenture"), between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of
the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the Act for a
statement of those terms.
The Notes are unsecured senior obligations of the
Company limited to $500,000,000 aggregate principal amount
(subject to Section 2.7 of the Indenture) including (a)
$350,000,000 in aggregate principal amount of Initial Notes being
offered on the Issuance Date and (b) additional "add-on" notes
which may be offered subsequent to the Issue Date (the
"Subsequent Add-on Notes") in an aggregate principal amount not
to exceed $150,000,000; provided, however, that no Subsequent
Add-on Notes may be authenticated and delivered in an aggregate
principal amount of less than $25,000,000. All Notes issued on
the Issue Date and all Subsequent Add-on Notes shall be identical
in all respects other than issuance dates, the date from which
interest accrues and any changes relating thereto, and shall vote
together as one class of securities pursuant to Section 1.5 of
the Indenture.
This Note is one of the Initial Notes referred to in
the Indenture. The Notes include the Initial Notes and any
Private Exchange Notes and Exchange Notes issued in exchange for
the Initial Notes pursuant to the Indenture and the Registration
Rights Agreement and any Subsequent Add-on Notes. The Initial
Notes, the Private Exchange Notes and the Exchange Notes and any
Subsequent Add-on Notes are treated as a single class of
securities under the Indenture.
3
The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Restricted
Subsidiaries, the payment of dividends and other distributions on
the Capital Stock of the Company and its Restricted Subsidiaries,
the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases
or redemptions of Subordinated Obligations, the sale or transfer
of assets and Capital Stock of Restricted Subsidiaries, the
issuance or sale of Capital Stock of Restricted Subsidiaries, the
investments of the Company and its Subsidiaries and transactions
with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the following paragraph, the
Notes will not be redeemable at the option of the Company prior
to March 15, 2003. Thereafter, the Notes will be redeemable, at
the Company's option, in whole or in part, at any time or from
time to time, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued interest, if any,
to the redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month
period commencing on March 15 of the years set forth below:
Redemption
Period Price
------ ----------
2003..................................... 104.500%
2004..................................... 103.000%
2005..................................... 101.500%
2006 and thereafter...................... 100.000%
In addition, at any time and from time to time prior
to March 15, 2001, the Company may redeem in the aggregate up to
35% of the original aggregate principal amount of the Notes with
the net cash proceeds of one or more Public Equity Offerings of
the Company following which there is a Public Market or, in the
case of a Public Equity Offering of Holdings following which
there is a Public Market, with the net cash proceeds thereof that
are contributed to the equity capital of the Company, at a
redemption price (expressed as a percentage of principal amount
thereof) of 109.00% plus accrued interest, if any, to the
redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least $227.5
million principal amount of the Notes must remain outstanding
after each such redemption.
4
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date by
first-class mail to each Holder of Notes to be redeemed at his
registered address. Notes in denominations of principal amount
larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Notes (or
portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will
have the right to cause the Company to repurchase all or any part
of the Notes of such Holder at a repurchase price equal to 101%
of the principal amount thereof, plus accrued and unpaid
interest, to the date of repurchase as provided in, and subject
to the terms of, the Indenture.
8. Registration Rights
The Company is party to a Registration Rights
Agreement, dated as of March 12, 1998, among the Company, Credit
Suisse First Boston Corporation and Chase Securities Inc.
pursuant to which it is obligated to pay Additional Interest (as
defined therein) upon the occurrence of certain Registration
Defaults (as defined therein).
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples
of $1,000. A Holder may register, transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange (i) any Notes selected for
redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) for a period
beginning 15 days before a selection of Notes to be redeemed and
ending on the date of such selection or (ii) any Notes for a
period beginning 15 days before an interest payment date and
ending on such interest payment date.
5
10. Persons Deemed Owners
The registered holder of this Note may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of Principal or interest or
Additional Interest, if any, remains unclaimed for one year after
the date of payment of Principal and interest and Additional
Interest, if any, the Trustee or Paying Agent shall pay the money
back to the Company at its request. After any such payment,
Holders entitled to the money must look only to the Company and
not to the Trustee for payment.
12. Defeasance
Subject to certain conditions set forth in the
Indenture, the Company at any time may terminate some or all of
its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal of and interest on the Notes to
redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Notes may be amended with the
written consent of the Holders of at least a majority in
principal amount of the outstanding Notes and (ii) any default or
noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company and
the Trustee may amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with
Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add
guarantees with respect to the Notes or to secure the Notes, or
to add additional covenants of or surrender rights and powers
conferred on the Company, or to make any change that does not
adversely affect the rights of any Noteholder (including changes
to effect the issuance of Subsequent Add-on Notes and to effect
the provisions of Section 1.5), or to comply with any request of
the SEC in connection with the qualification of the Indenture
under the Act. However, no amendment may be made to the
subordination provisions of the Indenture that adversely affects
the rights of any holder of Senior Indebtedness then outstanding
unless the holders of such Senior Indebtedness (or their
Representative) consent to such change.
6
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a
default in any payment of interest on any Note when due,
continued for 30 days, (ii) a default in the payment of principal
of any Note when due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or
otherwise, (iii) the failure by the Company to comply with its
obligations under Article V of the Indenture, (iv) the failure by
the Company to comply for 30 days after notice with any of its
obligations under the covenants described under Section 4.2, 4.3,
4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 of the Indenture (in each
case, other than a failure to purchase Notes), (v) the failure by
the Company to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the
Company or any Restricted Subsidiary of the Company to pay any
Indebtedness within any applicable grace period after final
maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $10.0 million or its
foreign currency equivalent, (vii) certain events of bankruptcy,
insolvency or reorganization of Holdings, the Company or any
Significant Subsidiary of the Company or (viii) any final,
non-appealable judgment or decree for the payment of money in
excess of $10.0 million (net of any amounts with respect to which
a creditworthy insurance company has acknowledged full liability
in writing) is rendered against the Company or any Restricted
Subsidiary of the Company remains outstanding for a period of 60
days after such judgment and is not discharged, waived or stayed
within 10 days after notice. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes
to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the
Notes being due and payable immediately upon the occurrence of
such Events of Default.
Noteholders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Notes unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of
a majority in principal amount of the Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or
Event of Default (except a Default or Event of Default in payment
of Principal or interest) if it determines that withholding
notice is not opposed to their interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the
Indenture, the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Notes and
7
may otherwise deal with and collect obligations owed to it by the
Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations
of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. None of Koch Agriculture, Xxxx Industries, Holdings or
any of their Affiliates (other than the Company) will be parties
to this Indenture or responsible for any payments or other claims
in respect of the Notes or this Indenture. By accepting a Note,
each Noteholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of
the Notes.
17. Authentication
This Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent acting on
its behalf) manually signs the certificate of authentication on
the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST
(=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures the
Company has caused CUSIP numbers to be printed on the Notes 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.
8
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the
Indenture which has in it the text of this Note in larger type.
Requests may be made to: Purina Xxxxx, Inc., 0000 Xxxxx Xxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may
substitute another to act for him.
_____________________________________________________________________
Date: __________________ Your Signature: ________________________
Sign exactly as your
name appears on the
other side of this Note.
Signature Guarantee: ______________________________
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
In connection with any transfer or exchange of any of the Notes
evidenced by this certificate occurring prior to the date that is
two years after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were
owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW:
__
(1) __ to the Company; or
__
(2) __ pursuant to an effective registration statement
under the Securities Act of 1933; or
__
(3) __ inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
2
__
(4) __ outside the United States in an offshore
transaction within the meaning of Regulation S
under the Securities Act in compliance with Rule
904 under the Securities Act of 1933; or
__
(5) __ pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the
name of any Person other than the registered holder thereof;
provided, however, that if box (4) or (5) is checked, the Trustee
may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act
of 1933, such as the exemption provided by Rule 144 under such
Act.
Date: __________ Your Signature _________________________________
Sign exactly as your name appears
on the other side of this Note.
Signature Guarantee: __________________________________________
(Signature must be guaranteed by a participant in a recognized
Signature Guarantee Medallion Program or other signature guarantor
program reasonably acceptable to the Trustee)
____________________________________________________________
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933,
and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.7 or 4.9 of the Indenture,
check the appropriate box:
__
Section 4.7 __
__
Section 4.9 __
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.7 or 4.9 of the
Indenture, state the amount you elect to have purchased (must be
integral multiple of $1,000): $
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global
Note have been made:
Amount of decrease Amount of increase
Date of in Principal Amount in Principal Amount
Exchange of this Global Note of this Global Note
Principal Amount of Signature of
this Global Note authorized officer
following such of Trustee or Notes
decrease or increase Custodian
EXHIBIT A
[FORM OF FACE OF EXCHANGE NOTE [OR PRIVATE
EXCHANGE NOTE]]
*/
**/
PURINA XXXXX, INC.
No. __ Principal Amount $_____________
CUSIP NO. _________
9% Senior Subordinated Notes Due 2010
Purina Xxxxx Inc., a Delaware corporation, promises to
pay to __________, or registered assigns, the principal sum of
___________________________ Dollars on March 15, 2010.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on
the other side of this Note.
Dated: __________ PURINA XXXXX, INC.
by_________________________________
by_________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in this Indenture.
The First National Bank of Chicago
as Trustee
by________________________
Authorized Signatory
__________________________
*/ [If the Note is to be issued in global form add the Global
Notes Legend from Exhibit 1 to Appendix A and the
attachment from such Exhibit 1 captioned "[TO BE ATTACHED
TO GLOBAL NOTES] - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL NOTE".]
**/ [If the Note is a Private Exchange Note issued in a Private
Exchange to an Initial Purchaser holding an unsold portion
of its initial allotment, add the Restricted Notes Legend
from Exhibit 1 to Appendix A and replace the Assignment
Form included in such Exhibit 1.]
[FORM OF REVERSE SIDE OF EXCHANGE NOTE [OR
PRIVATE EXCHANGE NOTE]]
9% Senior Subordinated Notes Due 2010
1. Interest
Purina Xxxxx, Inc., a Delaware corporation (such
corporation, and its successors and assigns under this Indenture
hereinafter referred to, being herein called the "Company"),
promises to pay interest on the principal amount of this Note at
the rate per annum shown above[; provided, however, that if a
Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this
Note at a rate of 0.50% per annum (increasing by 0.5% per annum
at the end of each 90-day period thereafter) from and including
the date on which any such Registration Default shall occur to
but excluding the date on which all Registration Defaults have
been cured, calculated on the principal amount of this Note as of
the date on which such interest is payable; provided, however,
that in no event shall the aggregate amount of such additional
interest exceed 1.00% per annum. Such interest is payable in
addition to any other interest payable from time to time with
respect to this Note. The Trustee will not be deemed to have
notice of a Registration Default until it shall have received
actual notice of such Registration Default].***
The Company will pay interest semiannually on March 15
and September 15 of each year, commencing September 15, 1998.
Interest on the Notes will accrue from the most recent date to
which interest has been paid on the Notes or, if no interest has
been paid, from March 12, 1998. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the
date on which any Principal of or interest on any Note is due and
payable, the Company shall irrevocably deposit with the Trustee
or the Paying Agent money sufficient to pay such Principal and/or
interest. The Company will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at
the close of business on the March 1 or September 1 next
preceding the interest payment date even if Notes are cancelled,
repurchased or redeemed after the record date and on or before
_______________
*** Insert if at the time of issuance of the Exchange Note or
Private Exchange Note (as the case may be) neither the
Registered Exchange Offer has been consummated nor a Shelf
Registration Statement has been declared effective in
accordance with the Registration Rights Agreement.
2
the interest payment date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay
Principal and interest in money of the United States that at the
time of payment is legal tender for payment of public and private
debts. However, the Company may pay Principal and interest by
check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar
Initially, The First National Bank of Chicago, a
national banking association (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice to any
Noteholder. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Company issued the Notes under an Indenture dated
as of March 12, 1998 (as it may be amended or supplemented from
time to time in accordance with the terms thereof, the
"Indenture"), between the Company and the Trustee. The terms of
the Notes include those stated in this Indenture and those made
part of this Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of
this Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in this
Indenture. The Notes are subject to all such terms, and
Noteholders are referred to this Indenture and the Act for a
statement of those terms.
The Notes are unsecured senior subordinated
obligations of the Company limited to $500,000,000 aggregate
principal amount (subject to Section 2.7 of the Indenture)
including (a) $350,000,000 in aggregate principal amount of
Initial Notes being offered on the Issuance Date and (b)
additional "add-on" notes which may be offered subsequent to the
Issue Date (the "Subsequent Add-on Notes") in an aggregate
principal amount not to exceed $150,000,000; provided, however,
that no Subsequent Add-on Notes may be authenticated and
delivered in an aggregate principal amount of less than
$25,000,000. All Notes issued on the Issue Date and all
Subsequent Add-on Notes shall be identical in all respects other
than issuance dates, the date from which interest accrues and any
changes relating thereto, and shall vote together as one class of
securities pursuant to Section 1.5 of the Indenture.
The Note is one of the Exchange Notes referred to in
the Indenture. The Notes include the Initial Notes and any
Private Exchange Notes and Exchange Notes issued in exchange for
the Initial Notes pursuant to the Indenture and the Registration
3
Rights Agreement and any Subsequent Add-on Notes. The Initial
Notes, the Private Exchange Notes and the Exchange Notes and any
Subsequent Add-on Notes are treated as a single class of
securities under the Indenture.
The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Restricted
Subsidiaries, the payment of dividends and other distributions on
the Capital Stock of the Company and its Restricted Subsidiaries,
the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases
or redemptions of Subordinated Obligations, the sale or transfer
of assets and Capital Stock of Restricted Subsidiaries, the
issuance or sale of Capital Stock of Restricted Subsidiaries, the
investments of the Company and its Subsidiaries and transactions
with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the following paragraph, the
Notes will not be redeemable at the option of the Company prior
to March 15, 2003. Thereafter, the Notes will be redeemable, at
the Company's option, in whole or in part, at any time or from
time to time, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued interest, if any,
to the redemption date (subject to the right of Holders of record
on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month
period commencing on March 15 of the years set forth below:
Redemption
Period Price
------ ----------
2003..................................... 104.500%
2004..................................... 103.000%
2005..................................... 101.500%
2006 and thereafter...................... 100.000%
In addition, at any time and from time to time prior
to March 15, 2001, the Company may redeem in the aggregate up to
35% of the original aggregate principal amount of the Notes with
the net cash proceeds of one or more Public Equity Offerings of
the Company following which there is a Public Market or, in the
case of a Public Equity Offering of Holdings following which
there is a Public Market, with the net cash proceeds thereof that
are contributed to the equity capital of the Company, at a
redemption price (expressed as a percentage of principal amount
thereof) of
4
109.00% plus accrued interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment
date); provided, however, that at least $227.5 million principal
amount of the Notes must remain outstanding after each such
redemption.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date by
first-class mail to each Holder of Notes to be redeemed at his
registered address. Notes in denominations of principal amount
larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Notes (or
portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date
and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will
have the right to cause the Company to repurchase all or any part
of the Notes of such Holder at a repurchase price equal to 101%
of the principal amount thereof, plus accrued and unpaid
interest, to the date of repurchase as provided in, and subject
to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples
of $1,000. A Holder may register transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange (i) any Notes selected for
redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) for a period
beginning 15 days before a selection of Notes to be redeemed and
ending on the date of such selection or (ii) any Notes for a
period beginning 15 days before an interest payment date and
ending on such interest payment date.
5
9. Persons Deemed Owners
The registered holder of this Note may be treated as
the owner of it for all purposes.
10. Unclaimed Money
If money for the payment of Principal or interest or
Additional Interest, if any, remains unclaimed for one year after
the date of payment of Principal and interest and Additional
Interest, if any, the Trustee or Paying Agent shall pay the money
back to the Company at its request. After any such payment,
Holders entitled to the money must look only to the Company and
not to the Trustee for payment.
11. Defeasance
Subject to certain conditions set forth in the
Indenture, the Company at any time may terminate some or all of
its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal of and interest on the Notes to
redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Notes may be amended with the
written consent of the Holders of at least a majority in
principal amount of the outstanding Notes and (ii) any default or
noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company and
the Trustee may amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with
Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add
guarantees with respect to the Notes or to secure the Notes, or
to add additional covenants of or surrender rights and powers
conferred on the Company, or to make any change that does not
adversely affect the rights of any Noteholder (including changes
to effect the issuance of Subsequent Add-on Notes and to effect
the provisions of Section 1.5), or to comply with any request of
the SEC in connection with the qualification of the Indenture
under the Act. However, no amendment may be made to the
subordination provisions of the Indenture that adversely affects
the rights of any holder of Senior Indebtedness then outstanding
unless the holders of such Senior Indebtedness (or their
Representative) consent to such change
6
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) a
default in any payment of interest on any Note when due,
continued for 30 days, (ii) a default in the payment of principal
of any Note when due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or
otherwise, (iii) the failure by the Company to comply with its
obligations under Article V of the Indenture, (iv) the failure by
the Company to comply for 30 days after notice with any of its
obligations under the covenants described under Section 4.2, 4.3,
4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 of the Indenture (in each
case, other than a failure to purchase Notes), (v) the failure by
the Company to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the
Company or any Restricted Subsidiary of the Company to pay any
Indebtedness within any applicable grace period after final
maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $10.0 million or its
foreign currency equivalent, (vii) certain events of bankruptcy,
insolvency or reorganization of Holdings, the Company or any
Significant Subsidiary of the Company or (viii) any final,
non-appealable judgment or decree for the payment of money in
excess of $10.0 million (net of any amounts with respect to which
a creditworthy insurance company has acknowledged full liability
in writing) is rendered against the Company or any Restricted
Subsidiary of the Company remains outstanding for a period of 60
days after such judgment and is not discharged, waived or stayed
within 10 days after notice. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes
to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the
Notes being due and payable immediately upon the occurrence of
such Events of Default.
Noteholders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Notes unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of
a majority in principal amount of the Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or
Event of Default (except a Default or Event of Default in payment
of Principal or interest) if it determines that withholding
notice is not opposed to their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in this
Indenture, the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Notes and
7
may otherwise deal with and collect obligations owed to it by the
Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations
of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. None of Koch Agriculture, Xxxx Industries, Holdings or
any of their Affiliates (other than the Company) will be parties
to this Indenture or responsible for any payments or other claims
in respect of the Notes or this Indenture. By accepting a Note,
each Noteholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of
the Notes.
16. Authentication
This Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent acting on
its behalf) manually signs the certificate of authentication on
the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST
(=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures the
Company has caused CUSIP numbers to be printed on the Notes 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.
8
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the
Indenture which has in it the text of this Note in larger type.
Requests may be made to: Purina Xxxxx, Inc., 0000 Xxxxx Xxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may
substitute another to act for him.
___________________________________________________________________
Date: ______________ Your Signature: __________________________
Sign exactly as your name
appears on the other side
of this Note.
Signature Guarantee: _____________________________________________
(Signature must be guaranteed by a participant in a recognized
Signature Guarantee Medallion Program or other signature guarantor
program reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.7 or 4.9 of the Indenture,
check the appropriate box:
__
Section 4.7 __
__
Section 4.9 __
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.7 or 4.9 of the
Indenture, state the amount you elect to have purchased (must be
integral multiple of $1,000): $
Date: __________ Your Signature ___________________________________
Sign exactly as your name appears
on the other side of this Note.
Signature Guarantee: ______________________________________________
(Signature must be guaranteed by a participant in a recognized
Signature Guarantee Medallion Program or other signature guarantor
program reasonably acceptable to the Trustee)
EXECUTION COPY
====================================================================
PURINA XXXXX, INC.,
Issuer
9% Senior Subordinated Notes Due 2010
==================
INDENTURE
Dated as of March 12, 1998
==================
The First National Bank of Chicago,
Trustee
====================================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) .............................. 7.10
(a)(2) .............................. 7.10
(a)(3) .............................. N.A.
(a)(4) .............................. N.A.
(b) .............................. 7.8; 7.10
(c) .............................. N.A.
311(a) .............................. 7.11
(b) .............................. 7.11
(c) .............................. N.A.
312(a) .............................. 2.5
(b) .............................. 11.3
(c) .............................. 11.3
313(a) .............................. 7.6
(b)(1) .............................. N.A.
(b)(2) .............................. 7.6
(c) .............................. 7.6
(d) .............................. 7.6
314(a) .............................. 4.2
4.15; 11.2
(b) .............................. N.A.
(c)(1) .............................. 11.4
(c)(2) .............................. 11.4
(c)(3) .............................. N.A.
(d) .............................. N.A.
(e) .............................. 11.5
(f) .............................. 4.13
315(a) .............................. 7.1
(b) .............................. 7.5; 11.2
(c) .............................. 7.1
(d) .............................. 7.1
(e) .............................. 6.11
316(a)(last sentence)........................ 11.6
(a)(1)(A) .............................. 6.5
(a)(1)(B) .............................. 6.4
(a)(2) .............................. N.A.
(b) .............................. 6.7
317(a)(1) .............................. 6.8
(a)(2) .............................. 6.9
(b) .............................. 2.4
318(a) .............................. 11.1
N.A. means Not Applicable.
_________________________
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
Definitions and Incorporation by Reference.......... 1
SECTION 1.1. Definitions................................. 1
SECTION 1.2. Other Definitions........................... 24
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act........................................ 24
SECTION 1.4. Rules of Construction....................... 25
SECTION 1.5. One Class of Notes.......................... 25
ARTICLE II
The Notes.......................... 26
SECTION 2.1. Form and Dating............................. 26
SECTION 2.2. Execution and Authentication................ 26
SECTION 2.3. Registrar and Paying Agent.................. 27
SECTION 2.4. Paying Agent To Hold Money in Trust......... 27
SECTION 2.5. Noteholder Lists............................ 27
SECTION 2.6. [Intentionally Omitted]..................... 28
SECTION 2.7. Replacement Notes........................... 28
SECTION 2.8. Outstanding Notes........................... 28
SECTION 2.9. Temporary Notes............................. 28
SECTION 2.10. Cancellation............................... 29
SECTION 2.11. Defaulted Interest......................... 29
SECTION 2.12. CUSIP Numbers.............................. 29
ARTICLE III
Redemption.......................... 30
SECTION 3.1. Notices to Trustee.......................... 30
SECTION 3.2. Selection of Notes To Be Redeemed........... 30
SECTION 3.3. Notice of Redemption........................ 31
SECTION 3.4. Effect of Notice of Redemption.............. 31
SECTION 3.5. Deposit of Redemption Price................. 32
SECTION 3.6. Notes Redeemed in Part...................... 32
ARTICLE IV
Covenants.......................... 32
SECTION 4.1. Payment of Notes............................ 32
SECTION 4.2. SEC Reports................................. 33
SECTION 4.3. Limitation on Indebtedness.................. 33
SECTION 4.4. Limitation on Indebtedness and Preferred
Stock of Restricted Subsidiaries..................... 36
SECTION 4.5. Limitation on Restricted Payments........... 37
SECTION 4.6. Limitation on Restrictions on
Distributions from Restricted Subsidiaries........... 39
SECTION 4.7. Limitation on Sale of Assets and
Subsidiary Stock..................................... 40
-i-
Page
----
SECTION 4.8. Limitation on Transactions With
Affiliates........................................... 43
SECTION 4.9. Change of Control........................... 45
SECTION 4.10. Limitation on Sale or Issuance of
Capital Stock of Restricted Subsidiaries............. 46
SECTION 4.11. Compliance with Laws....................... 46
SECTION 4.12. Compliance Certificate..................... 46
SECTION 4.13. Further Instruments and Acts............... 47
SECTION 4.14. Maintenance of Office or Agency............ 47
SECTION 4.15. Corporate Existence........................ 47
SECTION 4.16. Payment of Taxes and Other Claims.......... 47
SECTION 4.17. Maintenance of Properties and Insurance.... 48
ARTICLE V
Successor Company...................... 48
SECTION 5.1. When the Company May Merge or Transfer
Assets............................................... 48
ARTICLE VI
Defaults and Remedies.................... 49
SECTION 6.1. Events of Default........................... 49
SECTION 6.2. Acceleration................................ 51
SECTION 6.3. Other Remedies.............................. 52
SECTION 6.4. Waiver of Past Defaults..................... 52
SECTION 6.5. Control by Majority......................... 53
SECTION 6.6. Limitation on Suits......................... 53
SECTION 6.7. Rights of Holders To Receive Payment........ 53
SECTION 6.8. Collection Suit by Trustee.................. 54
SECTION 6.9. Trustee May File Proofs of Claim............ 54
SECTION 6.10. Priorities................................. 54
SECTION 6.11. Undertaking for Costs...................... 55
SECTION 6.12. Waiver of Stay or Extension Laws........... 55
ARTICLE VII
Trustee........................... 55
SECTION 7.1. Duties of Trustee........................... 55
SECTION 7.2. Rights of Trustee........................... 56
SECTION 7.3. Individual Rights of Trustee................ 57
SECTION 7.4. Trustee's Disclaimer........................ 57
SECTION 7.5. Notice of Defaults.......................... 57
SECTION 7.6. Reports by Trustee to Holders............... 58
SECTION 7.7. Compensation and Indemnity.................. 58
SECTION 7.8. Replacement of Trustee...................... 59
SECTION 7.9. Successor Trustee by Merger................. 60
SECTION 7.10. Eligibility; Disqualification.............. 60
SECTION 7.11. Preferential Collection of Claims
Against Company...................................... 61
ARTICLE VIII
-ii-
Page
----
Discharge of Indenture; Defeasance.............. 61
SECTION 8.1. Discharge of Liability on Notes;
Defeasance........................................... 61
SECTION 8.2. Conditions to Defeasance.................... 62
SECTION 8.3. Application of Trust Money.................. 63
SECTION 8.4. Repayment to Company........................ 63
SECTION 8.5. Indemnity for Government Obligations........ 64
SECTION 8.6. Reinstatement............................... 64
ARTICLE IX
Amendments.......................... 64
SECTION 9.1. Without Consent of Holders.................. 64
SECTION 9.2. With Consent of Holders..................... 65
SECTION 9.3. Compliance with Trust Indenture Act......... 66
SECTION 9.4. Revocation and Effect of Consents and
Waivers.............................................. 66
SECTION 9.5. Notation on or Exchange of Notes............ 67
SECTION 9.6. Trustee To Sign Amendments.................. 67
SECTION 9.7. Payment for Consent......................... 67
ARTICLE X
Subordination of the Notes.................. 68
SECTION 10.1. Agreement To Subordinate................... 68
SECTION 10.2. Liquidation, Dissolution, Bankruptcy. .... 68
SECTION 10.3. Default on Senior Indebtedness of the
Company.............................................. 68
SECTION 10.4. Acceleration of Payment of Notes........... 70
SECTION 10.5. When Distribution Must Be Paid Over........ 70
SECTION 10.6. Subrogation................................ 70
SECTION 10.7. Relative Rights............................ 70
SECTION 10.8. Subordination May Not Be Impaired
by Company. ......................................... 70
SECTION 10.9. Rights of Trustee and Paying Agent......... 70
SECTION 10.10. Distribution or Notice to Repre-
sentative............................................ 71
SECTION 10.11. Article X Not To Prevent Events of
Default or Limit Right To Accelerate................. 71
SECTION 10.12. Trust Moneys Not Subordinated............. 71
SECTION 10.13. Trustee Entitled To Rely.................. 71
SECTION 10.14. Trustee To Effectuate Subordination....... 72
SECTION 10.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness.................................. 72
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination Provisions............. 72
ARTICLE XI
Miscellaneous........................ 73
SECTION 11.1. Trust Indenture Act Controls............... 73
SECTION 11.2. Notices.................................... 73
-iii-
Page
----
SECTION 11.3. Communication by Holders with other
Holders.............................................. 74
SECTION 11.4. Certificate and Opinion as to Conditions
Precedent............................................ 74
SECTION 11.5. Statements Required in Certificate or
Opinion.............................................. 74
SECTION 11.6. When Notes Disregarded..................... 75
SECTION 11.7. Rules by Trustee, Paying Agent and
Registrar............................................ 75
SECTION 11.8. Legal Holidays............................. 75
SECTION 11.9. GOVERNING LAW.............................. 75
SECTION 11.10. No Recourse Against Others................ 75
SECTION 11.11. Successors................................ 75
SECTION 11.12. Severability.............................. 76
SECTION 11.13. Multiple Originals........................ 76
SECTION 11.14. Variable Provisions....................... 76
SECTION 11.15. Qualification of Indenture................ 76
SECTION 11.16. Table of Contents; Headings............... 76
Rule 144A Appendix
Exhibit 1 to Rule 144A Appendix - Form of Initial Note
Exhibit A - Form of Exchange Note or Private Exchange Note
-iv-
