EXHIBIT 4.1
EXECUTION COPY
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S&C HOLDCO 3, INC.
as Issuer
11.00% SENIOR NOTES DUE 2010
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INDENTURE
Dated as of March 11, 2005
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THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................. 1
Section 1.01. Definitions......................................................................... 1
Section 1.02. Other Definitions................................................................... 26
Section 1.03. Incorporation by Reference of Trust Indenture Act................................... 27
Section 1.04. Rules of Construction............................................................... 27
ARTICLE 2. THE NOTES............................................................................................... 28
Section 2.01. Form and Dating..................................................................... 28
Section 2.02. Execution and Authentication........................................................ 29
Section 2.03. Registrar and Paying Agent.......................................................... 29
Section 2.04. Paying Agent to Hold Money in Trust................................................. 30
Section 2.05. Holder Lists........................................................................ 30
Section 2.06. Transfer and Exchange............................................................... 30
Section 2.07. Replacement Notes................................................................... 41
Section 2.08. Outstanding Notes................................................................... 41
Section 2.09. Treasury Notes...................................................................... 42
Section 2.10. Temporary Notes..................................................................... 42
Section 2.11. Cancellation........................................................................ 42
Section 2.12. Payment of Interest; Defaulted Interest............................................. 42
Section 2.13. CUSIP or ISIN Numbers............................................................... 43
Section 2.14. Special Interest.................................................................... 43
Section 2.15. Issuance of PIK Notes............................................................... 43
Section 2.16. Rule 144A Availability Notice....................................................... 43
ARTICLE 3. REDEMPTION AND PREPAYMENT............................................................................... 43
Section 3.01. Notices to Trustee.................................................................. 44
Section 3.02. Selection of Notes to Be Redeemed................................................... 44
Section 3.03. Notice of Redemption................................................................ 44
Section 3.04. Effect of Notice of Redemption...................................................... 45
Section 3.05. Deposit of Redemption Price......................................................... 45
Section 3.06. Notes Redeemed in Part.............................................................. 45
Section 3.07. Optional Redemption................................................................. 45
Section 3.08. Mandatory Redemption or Repurchase.................................................. 46
Section 3.09. Offer To Purchase by Application of Excess Proceeds................................. 46
ARTICLE 4. COVENANTS............................................................................................... 47
Section 4.01. Payment of Notes.................................................................... 47
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.02. Maintenance of Office or Agency........................................ 48
Section 4.03. Reports................................................................ 49
Section 4.04. Compliance Certificate................................................. 49
Section 4.05. Taxes.................................................................. 50
Section 4.06. Stay, Extension and Usury Laws......................................... 50
Section 4.07. Corporate Existence.................................................... 50
Section 4.08. Payments for Consent................................................... 50
Section 4.09. Incurrence of Additional Debt and Issuance of Capital Stock............ 50
Section 4.10. Restricted Payments.................................................... 51
Section 4.11. Liens.................................................................. 55
Section 4.12. Asset Sales............................................................ 55
Section 4.13. Restrictions on Distributions from Subsidiaries........................ 57
Section 4.14. Affiliate Transactions................................................. 59
Section 4.15. Sale and Leaseback Transactions........................................ 60
Section 4.16. Issuance or Sale of Capital Stock of Restricted Subsidiaries........... 60
Section 4.17. Designation of Restricted and Unrestricted Subsidiaries................ 61
Section 4.18. Repurchase at the Option of Holders Upon a Change of Control........... 61
Section 4.19. Repurchase at the Option of Holders upon an Initial Public Offering.... 63
Section 4.20. Business Activities.................................................... 65
Section 4.21. Guarantees of Debt by the Company and Restricted Subsidiaries.......... 65
Section 4.22. Seller Note............................................................ 65
Section 4.23. SFC Covenants.......................................................... 66
Section 4.24. OpCo Ownership ........................................................ 66
ARTICLE 5. SUCCESSORS............................................................................. 66
Section 5.01. Merger, Consolidation and Sale of Assets............................... 66
Section 5.02. Successor Corporation Substituted...................................... 67
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................. 68
Section 6.01. Events of Default...................................................... 68
Section 6.02. Acceleration........................................................... 69
Section 6.03. Other Remedies......................................................... 70
Section 6.04. Waiver of Past Defaults................................................ 70
Section 6.05. Control by Majority.................................................... 70
Section 6.06. Limitation on Suits.................................................... 70
Section 6.07. Rights of Holders to Receive Payment................................... 71
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.08. Collection Suit by Trustee............................................. 71
Section 6.09. Trustee May File Proofs of Claim....................................... 71
Section 6.10. Priorities............................................................. 71
Section 6.11. Undertaking for Costs.................................................. 72
ARTICLE 7. TRUSTEE................................................................................ 72
Section 7.01. Duties of Trustee...................................................... 72
Section 7.02. Rights of Trustee...................................................... 73
Section 7.03. Individual Rights of Trustee........................................... 74
Section 7.04. Trustee's Disclaimer................................................... 74
Section 7.05. Notice of Defaults..................................................... 74
Section 7.06. Reports by Trustee to Holders.......................................... 74
Section 7.07. Compensation and Indemnity............................................. 74
Section 7.08. Replacement of Trustee................................................. 75
Section 7.09. Successor Trustee by Merger, etc....................................... 76
Section 7.10. Eligibility; Disqualification.......................................... 76
Section 7.11. Preferential Collection of Claims Against Company...................... 76
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................... 76
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance............... 76
Section 8.02. Legal Defeasance and Discharge......................................... 77
Section 8.03. Covenant Defeasance.................................................... 77
Section 8.04. Conditions to Legal or Covenant Defeasance............................. 77
Section 8.05. Deposited Cash and U.S. Government Securities to be Held in Trust;
Other Miscellaneous Provisions......................................... 78
Section 8.06. Repayment to Company................................................... 79
Section 8.07. Reinstatement.......................................................... 79
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER....................................................... 79
Section 9.01. Without Consent of Holders of Notes.................................... 79
Section 9.02. With Consent of Holders of Notes....................................... 80
Section 9.03. Compliance with Trust Indenture Act.................................... 81
Section 9.04. Revocation and Effect of Consents...................................... 81
Section 9.05. Notation on or Exchange of Notes....................................... 82
Section 9.06. Trustee to Sign Amendments, etc........................................ 82
ARTICLE 10. GUARANTEES............................................................................ 82
Section 10.01. Guarantee.............................................................. 82
Section 10.02. Limitation on Guarantor Liability...................................... 83
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 10.03. Execution and Delivery of Guarantee.................................... 83
Section 10.04. Guarantors May Consolidate, etc. on Certain Terms...................... 84
Section 10.05. Releases Following Sale of Assets...................................... 85
Section 10.06. Release of SFC Guarantee............................................... 85
ARTICLE 11. SATISFACTION AND DISCHARGE............................................................ 85
Section 11.01. Satisfaction and Discharge............................................. 85
Section 11.02. Deposited Cash and U.S. Government Securities to be Held in Trust;
Other Miscellaneous Provisions......................................... 86
Section 11.03. Repayment to Company................................................... 86
ARTICLE 12. MISCELLANEOUS......................................................................... 86
Section 12.01. Trust Indenture Act Controls........................................... 86
Section 12.02. Notices................................................................ 86
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.......... 87
Section 12.04. Certificate and Opinion as to Conditions Precedent..................... 87
Section 12.05. Statements Required in Certificate or Opinion.......................... 88
Section 12.06. Rules by Trustee and Agents............................................ 88
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders........................................................... 88
Section 12.08. Governing Law.......................................................... 88
Section 12.09. No Adverse Interpretation of Other Agreements.......................... 89
Section 12.10. Successors............................................................. 89
Section 12.11. Severability........................................................... 89
Section 12.12. Counterpart Originals.................................................. 89
Section 12.13. Table of Contents, Headings, etc....................................... 89
Section 12.14. Qualification of this Indenture........................................ 89
EXHIBIT A......................................................................................... A-1
EXHIBIT B......................................................................................... B-1
EXHIBIT C......................................................................................... C-1
EXHIBIT D......................................................................................... D-1
EXHIBIT E......................................................................................... E-1
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE
REFERENCE SECTION
310(a)(1)............................................................................... 7.10
(a)(2).................................................................................. 7.10
(a)(3).................................................................................. N.A.
(a)(4).................................................................................. N.A.
(a)(5).................................................................................. 7.10
(b)..................................................................................... 7.08, 7.10
(c)..................................................................................... N.A.
311(a).................................................................................. 7.11
(b)..................................................................................... 7.11
(c)..................................................................................... N.A.
312(a).................................................................................. 2.05
(b)..................................................................................... 12.03
(c)..................................................................................... 12.03
313(a).................................................................................. 7.06
(b)(1).................................................................................. N.A.
(b)(2).................................................................................. 7.06, 7.07
(c)..................................................................................... 7.06, 12.02
(d)..................................................................................... 7.06
314(a).................................................................................. 4.03, 4.04, 12.02
(b)..................................................................................... N.A.
(c)(1).................................................................................. 12.04
(c)(2).................................................................................. 12.04
(c)(3).................................................................................. N.A.
(d)..................................................................................... N.A.
(e)..................................................................................... 12.05
315(a).................................................................................. 7.01
(b)..................................................................................... 7.05, 12.02
(c)..................................................................................... 7.01
(d)..................................................................................... 7.01
(e)..................................................................................... 6.11
316(a) (last sentence).................................................................. 2.09
(a)(1)(A)............................................................................... 6.05
(a)(1)(B)............................................................................... 6.04
(a)(2).................................................................................. N.A.
(b)..................................................................................... 6.07
317(a)(1)............................................................................... 6.08
(a)(2).................................................................................. 6.09
(b)..................................................................................... 2.04
318(a).................................................................................. 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
This INDENTURE dated as of March 11, 2005, is by and among S&C
Holdco 3, Inc., a Delaware corporation (the "Company"), the Guarantors listed on
the signature pages hereto, and The Bank of New York Trust Company, N.A., as
trustee (the "Trustee").
The Company, Swift Foods Company, a Delaware corporation ("SFC"),
the other Guarantors and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 11.00% Senior
Notes due 2010:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"144A Global Note" means the Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Debt of a Person or any of its Subsidiaries
existing at the time that Person becomes a Restricted Subsidiary of the Company
or at the time it merges or consolidates with the Company or any of its
Restricted Subsidiaries or assumed in connection with the acquisition of assets
from that Person.
"Acquisition Agreement" means the agreement by and among ConAgra
Foods, S&C Holdco, Inc. (subsequently known as Swift Foods Company) and HMTF
Rawhide, L.P., dated as of May 20, 2002, as amended from time to time in
accordance with this Indenture.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, lease (other than operating leases
entered into in the ordinary course of business), transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares), property or
other assets (each referred to for the purposes of this definition as a
"disposition") by the Company or any of its Restricted Subsidiaries (including
any disposition by means of a merger, consolidation or similar transaction)
other than:
(1) a disposition by a Restricted Subsidiary to the Company, by
the Company or a Restricted Subsidiary to a Wholly Owned Restricted
Subsidiary or by a Foreign Restricted Subsidiary to another Foreign
Restricted Subsidiary;
(2) a disposition of inventory in the ordinary course of business;
(3) a disposition of obsolete or worn out equipment or equipment
that is no longer useful in the conduct of the business of the Company and
its Restricted Subsidiaries and that is disposed of in each case in the
ordinary course of business;
(4) dispositions or a series of related dispositions of property
for net proceeds which, when taken collectively with the net proceeds of
any other such dispositions under this clause (4) that were consummated
since the beginning of the calendar year in which such disposition is
consummated, are less than $1.0 million;
(5) transactions permitted under Section 5.01 hereof;
(6) the making of a Permitted Investment or any other transaction
permitted by Section 4.10 hereof;
(7) licenses or similar agreements with respect to intellectual
property or other general intangibles owned or licensed by the Company or
any of its Restricted Subsidiaries in the ordinary course of business;
(8) any transaction that constitutes a Change of Control;
(9) a disposition of Cash Equivalents in the ordinary course of
business;
(10) a Sale and Leaseback Transaction otherwise permitted by
Section 4.15 hereof;
(11) pro rata dispositions of property to joint venture partners in
connection with the dissolution or other termination of a joint venture;
(12) a transfer resulting from a casualty or condemnation of
assets; and
(13) the trade or exchange by the Company or any Restricted
Subsidiaries of any assets used or useful in the Company's business or any
Related Business that are owned or held by the Company or such Restricted
Subsidiary solely for assets used or useful in the Company's business or
any Related Business that are owned or held by another Person that the
Board of Directors of the Company determines in good faith by Board
Resolution to be of approximately equivalent value; provided, however,
that for any trade or exchange or series of trades or exchanges involving
value in excess of $25.0 million the Company must obtain a written opinion
from an Independent Financial Advisor to the effect that the assets
received constitutes an exchange of equivalent value.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at any date of determination;
(1) if such Sale and Leaseback Transaction is a Capitalized Lease
Obligation, the amount of Debt represented thereby according to the
definition of "Capitalized Lease Obligation;" and
(2) in all other instances the present value (discounted at the
cash interest rate borne by the Notes, compounded semi-annually) of the
total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended).
"Available Cash" means:
(1) readily available cash held by the Company;
(2) readily available cash held by OpCo; and
2
(3) any amount available to OpCo under the Revolving Credit
Facility (as that term is defined in the Senior Credit Facilities),
in the case of clauses (2) and (3), (x) that is available to pay cash dividends
or distributions to the Company without violation of state surplus laws and the
terms of the OpCo Senior Indenture, the OpCo Subordinated Indenture and the
Senior Credit Facilities and (y) with respect to determining the amount of
Available Cash to make the interest payment on November 1, 2006, determined by
reference to the financial statements of OpCo for the period ended on the last
Sunday of August 2006.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Beneficial Ownership" and "Beneficial Owner" have the meanings such
terms are given in accordance with Rule 13d-3 promulgated by the Commission
under the Exchange Act.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors of the
corporation;
(2) with respect to a partnership, the Board of Directors or
similar board or committee or Person serving a similar function of the
managing general partner of the partnership; and
(3) with respect to any other Person, the board or committee of
that Person or any Person serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the applicable Person to have been duly
adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP, and for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and all
shares of corporate stock of that Person;
(2) with respect to any Person that is an association or business
entity, any and all shares, interests, participations, rights or other
equivalents, however designated, of capital stock of that Person;
(3) with respect to any Person that is a partnership or limited
liability company, any and all partnership or membership interests,
whether general or limited, of that Person; and
(4) with respect to any other Person, any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of or distributions of assets of, the issuing Person.
"Cash" or "cash" means such coin or currency of the United States as
at any time of payment is legal tender for the payment of public and
private debts.
"Cash Equivalents" means any of the following:
3
(1) 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;
(2) Investments in eurodollar time deposits, time deposit
accounts, certificates of deposit and money market deposits maturing
within 360 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 and whose long-term debt, or whose
parent holding company's 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);
(3) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (1) above
entered into with a bank meeting the qualifications described in clause
(2) above;
(4) Investments in commercial paper, maturing not more than 360
days after the date of acquisition, issued by a corporation (other than an
Affiliate of the 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 or "A-1" (or
higher) according to S & P;
(5) Investments in securities maturing not more than 360 days
after 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 S&P or "A" by Xxxxx'x; and
(6) Investments in mutual funds whose investment guidelines
restrict substantially all of such funds' investments to those satisfying
the provisions of clauses (1) through (5) above.
"Change of Control" means the occurrence of any of the following
events:
(1) any sale, lease, exchange or other transfer, in one
transaction or a series of related transactions, of all or substantially
all of the assets of the Company and its Subsidiaries taken as a whole to
any Person or Group (whether or not otherwise in compliance with the
provisions of this Indenture), other than to one or more of the Permitted
Holders or their Related Parties;
(2) any Person or Group, other than one or more of the Permitted
Holders or of their Related Parties, becomes the Beneficial Owner,
directly or indirectly, of securities constituting more than 50% of the
Company's Voting Stock;
(3) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company
(whether or not otherwise in compliance with the provisions of this
Indenture); or
(4) a majority of the Board of Directors of the Company shall
consist of Persons who are not Continuing Directors.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract,
commodity option or similar agreement or arrangement designed to protect against
fluctuations in the price of commodities used at the time in the ordinary course
of business.
4
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture and, subject to the provisions of Article 5, shall
include its successors and assigns.
"ConAgra Foods" means ConAgra Foods, Inc., a Delaware corporation.
"Consolidated Coverage Ratio" means, with respect to any Person as
of any date of determination, the ratio of:
(1) Consolidated EBITDA for that Person for the period of the most
recent four consecutive fiscal quarters ending prior to the date of such
determination and as to which financial statements are available and have
been filed with the Commission and/or provided to the Trustee, to
(2) Consolidated Interest Expense for that Person for those four
fiscal quarters.
In the event that such Person or any of its Restricted Subsidiaries
Incurs, assumes, guarantees, repurchases, repays or redeems any Debt or issues
any Preferred Stock or Disqualified Capital Stock subsequent to the commencement
of the period for which the Consolidated Coverage Ratio is being calculated but
prior to the event for which the calculation of the Consolidated Coverage Ratio
is made (the "CALCULATION DATE"), then the Consolidated Coverage Ratio shall be
calculated giving pro forma effect to such Incurrence, assumption, guarantee,
repurchase, repayment or redemption of Debt or issuance of Preferred Stock or
Disqualified Capital Stock as if the same had occurred at the beginning of the
applicable four-quarter period. For purposes of making the computation referred
to above, Investments, acquisitions, dispositions, mergers, consolidations,
restructurings, joint ventures and discontinued operations that are made by such
Person or any of its Restricted Subsidiaries during the four-quarter reference
period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date will be calculated on a pro forma basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations, restructurings, joint ventures and discontinued operations (and
the increase or reduction of any associated interest obligations and the change
in Consolidated EBITDA resulting therefrom) had occurred on the first day of the
four-quarter reference period.
If since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary of or was merged with or into any Restricted
Subsidiary since the beginning of such period) shall have made any Investment,
acquisition, disposition, merger, consolidation, restructuring, joint venture or
discontinued operation that would have required adjustment pursuant to this
definition, then the Consolidated Coverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition,
disposition, merger, consolidation, restructuring, joint venture or discontinued
operation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to a transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Person. If any Debt
bears a floating rate of interest and is being given pro forma effect, the
interest on such Debt will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking into
account any Hedging Obligations applicable to that Debt). To the extent that the
historical rate is not available, any pro forma calculation involving interest
on the Notes or the Convertible Notes shall be deemed to be the interest rate
paid on the immediately preceding Interest Payment Date with respect to the
Notes or the immediately preceding interest payment date with respect to the
Convertible Notes, as applicable (which interest rate, if such immediately
preceding interest payment was paid partially in cash and partially in PIK Notes
or Convertible PIK Notes, as applicable, shall be equal to the weighted average
interest rate paid taking into account the amount paid in cash and the amount
paid in PIK Notes or Convertible PIK Notes, as applicable); provided, however,
if for purposes of the pro forma calculation, there is no preceding interest
payment, then such calculation shall be calculated using the cash interest rate.
Interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by a responsible financial or accounting
officer of the Person to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP.
For purposes of making the computation referred to above, interest
on any Debt under a revolving credit facility or similar arrangement computed on
a pro forma basis shall be computed based on the average balance of such Debt
during the applicable period. Interest on Debt that may optionally be determined
at an interest rate
5
based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Person may
designate.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating:
(1) all intercompany items between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries, and
(2) all short-term debt and all current maturities of long-term
Debt.
"Consolidated EBITDA" means, with respect to any Person for any
period, the Consolidated Net Income of the Person and its Restricted
Subsidiaries for that period plus, to the extent such amount was deducted in
calculating Consolidated Net Income and as determined in conformance with GAAP:
(1) Consolidated Interest Expense;
(2) income tax expense;
(3) depreciation expense;
(4) amortization expense;
(5) exchange or translation losses on foreign currencies;
(6) upfront expenses resulting from or charges relating to equity
offerings, investments, mergers, recapitalizations, option buyouts,
dispositions, acquisitions and similar transactions to the extent those
expenses reduce net income;
(7) restructuring charges or write-offs;
(8) gains or losses on dispositions;
(9) any costs or charges which would otherwise reduce Consolidated
EBITDA as a result of an increase in value to the pre-acquisition
historical amounts of accounts receivable, inventories or any other
current assets (the "WRITE-UP"), to the extent the write-up is required by
GAAP, and occurs as a result of any acquisition permitted under this
Indenture;
(10) the amount of any minority interest expense;
(11) without duplication, all other non-cash items (excluding any
charge which represents the accrual of, or a reserve for, anticipated cash
charges for any future period), extraordinary items and nonrecurring and
unusual items reducing such Consolidated Net Income; and
(12) any decrease in Consolidated Net Income resulting solely from
the marking to market of open positions on beef and pork contracts
required by the application of Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities" of
the Financial Accounting Standards Board (and any replacement or successor
statement);
less all non-cash items (excluding items which represent the reversal of a
charge referred to in the parenthetical to clause (11) above) and nonrecurring
and unusual items increasing such Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum,
6
without duplication of:
(1) consolidated interest expense of that Person and its
Restricted Subsidiaries for that period, to the extent such expense was
deducted in computing Consolidated Net Income, including:
(a) amortization of debt discount;
(b) the interest component of Capitalized Lease Obligations;
(c) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(d) interest actually paid by that Person or any of its
Restricted Subsidiaries under any guarantee of Debt or other
obligation of any other Person;
(e) net payments (whether positive or negative) pursuant to
Interest Rate Protection Agreements;
(f) 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 Debt Incurred by that plan or trust;
and
(g) cash and Disqualified Capital Stock dividends in respect
of all Preferred Stock of Restricted Subsidiaries and Disqualified
Capital Stock of the Company held by Persons other than the Company
or a Wholly Owned Subsidiary;
(2) consolidated capitalized interest of that Person and its
Restricted Subsidiaries for that period, whether paid or accrued; and
(3) interest expense paid or accrued on Debt Incurred by that
Person, including in the case of the Company any interest paid or accrued
on the Notes in the form of cash or PIK Notes, and any interest paid or
accrued on the Convertible Notes in the form of cash or Convertible PIK
Notes;
less, to the extent included in the consolidated interest expense of that
Person, (A) non-cash interest on any Debt other than non-cash interest accrued
or paid on the Notes in the form of PIK Notes, non-cash interest accrued or paid
on the Convertible Notes in the form of Convertible PIK Notes and any other
non-cash interest accrued or paid as additional Debt other than through the
amortization of original issue discount (provided that such Debt does not
require any repayment of all or any portion of the principal amount thereof
prior to the final maturity of the Notes), (B) debt discount solely to the
extent relating to the issuance and sale of Debt together with any equity
security as part of an investment unit and (C) the amortization of capitalized
debt issuance costs.
Notwithstanding the foregoing, the Consolidated Interest Expense
with respect to any Restricted Subsidiary of the Person that was not a Wholly
Owned Subsidiary will be included only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income.
"Consolidated Net Income" means, with respect to any Person for any
period, (1) the net income (loss) of that Person and its consolidated Restricted
Subsidiaries, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, less (2) in the case of the Company,
interest paid or accrued on the Notes, including any interest paid in the form
of PIK Notes (to the extent any such interest on the Notes was not deducted in
determining Consolidated Net Income under clause (1)), and interest paid or
accrued on the Convertible Notes, including any interest paid in the form of
Convertible PIK Notes; provided, however, that Consolidated Net Income for that
Person for that period will exclude, without duplication:
(1) any net income of any Restricted Subsidiary of the Person if and
to the extent that
7
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 that Person, other than
restrictions in effect on the date the Notes are first issued with respect
to a Restricted Subsidiary of that Person and other than restrictions that
are either created or exist in compliance with the provisions of Section
4.13 or are legally waived;
(2) any net after-tax gain or loss (including all fees and
expenses related thereto) realized upon the sale or other disposition of
any assets of the Person or its consolidated Restricted Subsidiaries,
including pursuant to any Sale and Leaseback Transaction, which are not
sold or otherwise disposed of in the ordinary course of business;
(3) any net after-tax extraordinary gain or loss (including all
fees and expenses related thereto);
(4) the cumulative effect of a change in accounting principles;
(5) any net after-tax income (loss) from discontinued operations
and any net after-tax gains or losses on disposal of discontinued
operations;
(6) the net income of any Person, other than a Restricted
Subsidiary, except to the extent of the lesser of:
(a) dividends or distributions paid to the Company or any of
its Restricted Subsidiaries by that Person: and
(b) the net income of that Person, but in no event less than
zero;
(7) any non-cash expenses attributable to grants or exercises of
employee or independent contractor stock options or equity compensation
arrangements; and
(8) any costs relating to the offering of the Notes or the
Convertible Notes that would be required to be expensed under GAAP.
provided, further, however, that solely when determining Consolidated Net Income
for purposes of paragraph (a)(iii)(A) under Section 4.10, the following items
shall be added back to Consolidated Net Income to the extent such amount was
deducted in calculating Consolidated Net Income and as determined in accordance
with GAAP:
(a) extraordinary items and nonrecurring and unusual items;
(b) the xxxx-to-market impact of open positions accounted
for in accordance with Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging
Activities;" and
(c) the amount of any non-cash items related to the
compensation of employees, officers, directors or consultants and
impairments of intangible assets.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(1) the excess of cost over fair market value of assets or
businesses acquired;
8
(2) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the Company
immediately preceding the date the Notes are first issued as a result of a
change in the method of valuation in accordance with GAAP;
(3) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade
names, copyrights, licenses, organization or developmental expenses and
other intangible items;
(4) minority interests in consolidated Subsidiaries held by
Persons other than the Company or any Restricted Subsidiary;
(5) treasury stock;
(6) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of such
Board of Directors on the date of this Indenture or (b) whose nomination or
election was approved by a vote of at least a majority of individuals who were
Continuing Directors as of the time of such nomination or election.
"Contribution Agreement" means the agreement by and among the
Company, Swift Foods Company, S&C Holdco 2, Inc. and OpCo, dated September 19,
2002, pursuant to which Swift Foods Company, S&C Holdco 2, Inc. and the Company
will contribute or otherwise pay over, or cause any of their Subsidiaries (other
than Swift Cattle Holdco, Inc.) to contribute or otherwise pay over, to OpCo any
amounts they receive from ConAgra Foods or its Affiliates pursuant to
indemnification claims under the Acquisition Agreement and any amounts obtained
from other sources which are applied to offset any indemnification claims that
the Company could otherwise make under the Acquisition Agreement.
"Convertible Notes" means the Initial Convertible Notes, the
Convertible PIK Notes and any other notes issued or deemed issued pursuant to
the Convertible Notes Indenture.
"Convertible Notes Guarantee" means the Company's guarantee of the
Convertible Notes.
"Convertible Notes Indenture" means:
(1) the Indenture, dated as of the date hereof, by and among SFC,
the Company, the other guarantors and The Bank of New York Trust Company,
N.A., as Trustee, governing the Convertible Notes; and
(2) the indenture or other agreement evidencing any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original trustee and holders or another trustee or one
or more other holders and whether provided under the original Convertible
Notes Indenture or one or more other credit or other agreements or
indentures).
"Convertible PIK Notes" means any additional Convertible Notes
issued or deemed issued pursuant to Section 4.01 of the Convertible Notes
Indenture.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to which
the Trustee may give notice to the Company.
9
"Currency Protection Agreement" means any currency protection
agreement entered into with one or more financial institutions in the ordinary
course of business that is designed to protect the person or entity entering
into the agreement against fluctuations in currency exchange rates with respect
to Debt Incurred and not for purposes of speculation.
"Custodian" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
Custodian with respect to the Notes, any and all successors thereto appointed as
custodian hereunder and having become such pursuant to the applicable provisions
of this Indenture.
"Debt" means, with respect to any Person on any date of
determination, without duplication, any indebtedness of that Person:
(1) for borrowed money;
(2) evidenced by bonds, debentures, notes or other similar
instruments;
(3) constituting Capitalized Lease Obligations and all
Attributable Debt in respect of Sale and Leaseback Transactions;
(4) Incurred or assumed as the deferred and unpaid purchase price
of property or services, or pursuant to conditional sale obligations and
title retention agreements (but excluding trade accounts payable and
accrued expenses arising in the ordinary course of business), which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services;
(5) for reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction;
(6) for Debt of other Persons to the extent guaranteed by such
Person;
(7) for Hedging Obligations; and
(8) for Debt of any other Person of the type referred to in
clauses (1) through (7) which is secured by any Lien on any property or
asset of such first referred to Person, the amount of such Debt being
deemed to be the lesser of the value of the property or asset underlying
the Lien or the amount of the Debt so secured.
The amount of Debt of any Person at any date will be:
(a) the sum of (I) the outstanding principal amount of all
unconditional obligations described above, as such amount would be
reflected on a balance sheet prepared in accordance with GAAP and
(II) the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such
date; and
(b) the accreted value of that Debt, in the case of any Debt
issued with original issue discount.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
10
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Designated Preferred Stock" means Preferred Stock of a Person,
other than Preferred Stock that is Disqualified Capital Stock, that is issued to
another Person other than to a Restricted Subsidiary, for cash and is so
designated as "Designated Preferred Stock," pursuant to an Officers' Certificate
executed by the principal executive officer and the principal financial officer
of the Person, on the issuance date of that Preferred Stock, the cash proceeds
of which are excluded from the calculation set forth in clause (a)(iii)(B) of
Section 4.10.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets or Capital Stock.
"Disqualified Capital Stock" means any Capital Stock that, 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,
(1) matures (excluding any maturity as the result of an optional
redemption by the issuer of that Capital Stock);
(2) is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise; or
(3) is redeemable at the sole option of its holder,
in whole or in part, on or prior to the final maturity date of the Notes;
provided, however, that only the portion of Capital Stock that so matures or is
mandatorily redeemable or is so redeemable at the sole option of its holder
prior to the final maturity date of the Notes will be deemed Disqualified
Capital Stock.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
"Equity Interests" means Qualified Capital Stock and all warrants,
options or other rights to acquire Qualified Capital Stock, but excluding any
debt security that is convertible into, or exchangeable for, Qualified Capital
Stock.
"Equity Offering" means any public or private sale of common stock
or Preferred Stock or options, warrants or rights with respect to such common
stock or Preferred Stock of the Company or the Parent, excluding Disqualified
Capital Stock of the Company and public offerings with respect to common stock
registered on Form S-8 or any successor form thereto under the Securities Act.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear systems, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
11
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Excluded Proceeds" means the net cash proceeds received by a Person
from
(1) contributions to its equity capital other than contributions
from the issuance of Disqualified Capital Stock of the Company or any of
its Subsidiaries; and
(2) the sale, other than to a Subsidiary or to any management
equity or stock option plan or employee benefit plan of the Company, of
Qualified Capital Stock of the Person;
in each case designated as Excluded Proceeds pursuant to an Officers'
Certificate on the date the contributions are made or the date those Equity
Interests are sold, as the case may be, the cash proceeds of which are excluded
from the calculation set forth in clause (a)(iii)(B) of Section 4.10.
"Fiscal Year" or "fiscal year" with respect to the Company means a
calendar year ending on the last Sunday in May.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary
which is not organized under the laws of the United States of America or any
State thereof or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary which is not organized
under the laws of the United States of America or any State thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or the Commission or in such other statements by such other
entity as approved by a significant segment of the accounting profession as may
from time to time be in effect. All ratios and computations based on GAAP
contained in this Indenture will be computed in conformity with GAAP.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
"Group" means a group of related Persons for purposes of Section
13(d) of the Exchange Act.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Debt. The term "guarantee" used as a
verb has a corresponding meaning.
"Guarantee" means a Guarantor's guarantee of the Notes.
"Guarantor" means: (1) SFC and (2) each Subsidiary Guarantor;
provided that any Person constituting a Guarantor as described above shall cease
to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
"Hedging Obligations" means, with respect to any specified entity,
the obligations of that entity under:
(1) any Interest Rate Protection Agreement;
12
(2) foreign exchange contracts and Currency Protection Agreements;
(3) any Commodity Agreement; and
(4) other agreements or arrangements entered into in the ordinary
course of business and designed to protect that entity against
fluctuations in interest rates, currency exchange rates or commodity
prices.
"Xxxxx Muse" means Hicks, Muse, Xxxx & Xxxxx Incorporated and each
of its successors.
"HoldCo 2" means S&C Holdco 2, Inc., a Delaware corporation, and any
successors.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, guarantee or become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or obligation on the balance sheet of such Person (and "INCURRENCE"
and "INCURRED" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt, becoming Debt
shall not be deemed an Incurrence of such Debt; provided further, however, that
any Debt or other obligations 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.
"Indenture" means this instrument, as originally executed or as it
may from time to time be supplemented or amended in accordance with Article 9
hereof.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking firm or consultant to Persons engaged in the Company's
business of nationally recognized standing that is, in the judgment of the
Company's Board of Directors, qualified to perform the task for which it has
been engaged.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Convertible Notes" means $75,000,000 in aggregate principal
amount of convertible notes issued under the Convertible Notes Indenture on the
date hereof.
"Initial Notes" means $105,000,000 aggregate principal amount of
Notes issued under this Indenture on the date hereof.
"Initial Public Offering" means the first firm commitment
underwritten offering of common stock by SFC which is registered under the
Securities Act and following which the common stock of SFC is traded on a U.S.
national securities exchange or quoted on the Nasdaq National Market.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Rate Protection 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 agreement
13
or arrangement as to which that Person is a party or beneficiary.
"Interest Restricted Period" means the period commencing on the date
the Notes are first issued and ending on the earlier of (i) November 1, 2006 and
(ii) the Qualified IPO Effective Date.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business) or
other extension of credit (including by way of guarantee or similar arrangement,
but excluding any debt or extension of credit represented by a bank deposit
other than a time deposit) or capital contribution to (by means of any transfer
of cash or other property to other Persons or any payment for property or
services for the account or use of other Persons), or any purchase or
acquisition of Capital Stock, Debt or other similar instruments issued by such
Person.
"IPO Effective Date" means the first closing date on which SFC
issues shares of common stock to the underwriters of the Initial Public
Offering.
"IPO Redemption Amount" means, on the date of any IPO Redemption
Offer, an amount equal to $105,000,000 plus the aggregate principal amount of
all outstanding PIK Notes on the date of the IPO Redemption Offer.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in The City of New York, the city in which the Corporate Trust
Office of the Trustee is located, or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"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).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business of Xxxxx'x Investors Service, Inc.
"Net Available Cash" from an Asset Sale means cash or Cash
Equivalents received, including any payments received by way of deferred payment
of principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Debt or other obligations relating to
the properties or assets subject to that Asset Sale, from that Asset Sale, in
each case net of
(1) all legal, accounting, investment banking, title and recording
tax expenses, commissions and other fees and expenses incurred, and all
U.S. federal, state, foreign and local taxes required to be paid or
accrued as a liability under GAAP in connection with such Asset Sale;
(2) all payments made on any Debt which is secured by any assets
subject to such Asset Sale, other than the Senior Credit Facilities, in
accordance with the terms of any Lien upon such assets, or which must by
its terms, or in order to obtain a necessary consent to the Asset Sale, or
by applicable law, be repaid out of the proceeds from the Asset Sale;
(3) all distributions and other payments required to be made to
any Person owning a beneficial interest in assets subject to sale or
minority interest holders in Subsidiaries or joint ventures as a result of
the Asset Sale;
(4) 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 the Asset Sale and
14
retained by the Company or any Restricted Subsidiary of the Company after
that Asset Sale; and
(5) any portion of the purchase price from an Asset Sale placed in
escrow, whether as a reserve for adjustment of the purchase price, for
satisfaction of indemnities in respect of such Asset Sale or otherwise in
connection with that Asset Sale; provided, however, that upon the
termination of that escrow, Net Available Cash will be increased by any
portion of funds in the escrow that are released to the Company or any
Restricted Subsidiary.
"Net IPO Proceeds" means the Net Offering Proceeds from the Initial
Public Offering.
"Net Offering Proceeds" means the proceeds paid to SFC upon the
issuance of its common stock upon the completion of an underwritten public
offering of its common stock, less (to the extent not deducted from the proceeds
paid to SFC) all expenses paid or payable by SFC or any Subsidiary of SFC in
connection with such issuance and offering including, without limitation,
underwriters' fees, discounts and expenses, blue sky fees and expenses, listing
fees and expenses, legal and accounting fees and expenses, roadshow costs and
printing costs.
"Notes" means the Initial Notes, the PIK Notes, the Exchange Notes
and any Notes issued pursuant to Sections 2.06, 2.07, 2.10, 3.06, 3.09, 4.18,
4.19 and 9.05.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Debt.
"Officer" means the Chief Executive Officer, the President, the
Chief Financial Officer or any Executive Vice President of the Company.
"Officers' Certificate" means a certificate, in form and substance
reasonably satisfactory to the Trustee, signed by two Officers of the Company,
at least one of whom shall be the principal executive officer or principal
financial officer of the Company, and delivered to the Trustee.
"OpCo" means Swift & Company, a Delaware corporation, and its
successors.
"OpCo Senior Notes" means the notes issued by OpCo pursuant to the
OpCo Senior Indenture.
"OpCo Senior Indenture" means:
(1) the Indenture, dated as of September 19, 2002, by and among
OpCo, the guarantors listed on the signature pages thereto, and The Bank
of New York Trust Company of Florida, N.A., as trustee, as the same may be
amended, supplemented or otherwise modified from time to time, including
amendments, supplements or modifications relating to the addition or
elimination of Affiliates of OpCo as borrowers, guarantors or other credit
parties thereunder; and
(2) the indenture or other agreement evidencing any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original Trustee and holders or another trustee or one
or more other holders and whether provided under the original OpCo Senior
Indenture or one or more other credit or other agreements or indentures).
"OpCo Subordinated Notes" means the notes issued by OpCo pursuant to
the OpCo Subordinated Indenture.
"OpCo Subordinated Indenture" means:
(1) the Indenture, dated as of September 19, 2002, by and among
OpCo, the guarantors listed on the signature pages thereto, and The Bank
of New York Trust Company of Florida, N.A., as trustee, as the same may be
amended, supplemented or otherwise modified from time to time, including
amendments,
15
supplements or modifications relating to the addition or elimination of
Affiliates of OpCo as borrowers, guarantors or other credit parties
thereunder; and
(2) the indenture or other agreement evidencing any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original Trustee and holders or another trustee or one
or more other holders and whether provided under the original OpCo
Subordinated Indenture or one or more other credit or other agreements or
indentures).
"Opinion of Counsel" means a written opinion, in form and substance
reasonably satisfactory to the Trustee, from legal counsel who is acceptable to
the Trustee and which meets the requirements of Section 12.05 hereof. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Parent" means SFC and any Subsidiary of SFC of which the Company is
a direct or indirect Subsidiary.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Debt" means, without duplication:
(1) Debt outstanding on the date the Notes are first issued;
(2) Debt of the Company or a Restricted Subsidiary under the
Senior Credit Facilities, including guarantees thereof; provided that the
aggregate principal amount of all such Debt under the Senior Credit
Facilities at any one time outstanding shall not exceed the greater of (a)
$550.0 million, or (b) the sum of (I) 85% of the book value of the
accounts receivable of the Company and its Restricted Subsidiaries, plus
(II) 70% of the book value of the inventory (other than supplies) of the
Company and its Restricted Subsidiaries, (III) 15% of the book value of
the supplies of the Company and its Restricted Subsidiaries, plus (IV)
100% of the book value of the plant, property and equipment of the Company
and its Restricted Subsidiaries (provided that any amount under this
clause (IV) shall not exceed $110.0 million), in each case determined on a
consolidated basis and to the extent eligible to be included in the
Borrowing Base (as defined in the Senior Credit Facilities); less the
amount of all repayments of term Debt with Net Available Cash from Asset
Sales applied pursuant to Section 4.12;
(3) Debt of the Company owing to and held by any Wholly Owned
Restricted Subsidiary or Debt of a Restricted Subsidiary owing to and held
by the Company or any Wholly Owned Restricted Subsidiary; provided,
however, that any Debt of the Company (other than guarantees by the
Company of Debt under the Senior Credit Facilities, the OpCo Senior
Indenture and the OpCo Subordinated Indenture) owing to and held by any
Wholly Owned Restricted Subsidiary that is not a Guarantor is unsecured
and is subordinated in right of payment to the payment and performance of
the Company's obligations under the Notes; provided, further, however,
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Wholly Owned Restricted Subsidiary ceasing
to be a Wholly Owned Restricted Subsidiary or any subsequent transfer of
any such Debt, except to the Company or a Wholly Owned Restricted
Subsidiary, will be deemed, in each case, to constitute the Incurrence of
that Debt by the issuer thereof;
(4) Debt evidenced by or arising under the Notes, this Indenture,
the Guarantees and (b) the Convertible Notes Guarantee;
(5) Hedging Obligations; provided, however, that the agreements
governing those Hedging Obligations are entered into for bona fide hedging
purposes and not for speculative purposes, as determined in good faith by
the Board of Directors or senior management of the Company;
(6) additional Debt of the Company or any of its Restricted
Subsidiaries not otherwise
16
permitted under Section 4.09, in an aggregate principal amount, which when
aggregated with the aggregate principal amount of all other Debt then
outstanding and Incurred pursuant to this clause (6), does not at any one
time outstanding exceed $40.0 million (which amount may, but need not, be
incurred under the Senior Credit Facilities);
(7) Refinancing Debt;
(8) subject to compliance with Section 4.21, guarantees by the
Company or Restricted Subsidiaries of the Company of any Debt permitted by
this Indenture to be Incurred;
(9) Debt in respect of performance bonds, reimbursement
obligations with respect to letters of credit, bankers' acceptances,
completion guarantees and surety or appeal bonds provided by the Company
or any of its Restricted Subsidiaries in the ordinary course of their
business or Debt with respect to reimbursement type obligations regarding
workers' compensation claims;
(10) pledges, deposits or payments made or given in the ordinary
course of business in connection with or to secure statutory, regulatory
or similar obligations, including obligations under health, safety or
environmental obligations, or arising from guarantees to suppliers,
lessors, licensees, contractors, franchisees or customers of obligations,
other than Debt, made in the ordinary course of business;
(11) Debt arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guarantees or
letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant
to those agreements, in each case Incurred in connection with the
disposition of any business assets or Restricted Subsidiaries of the
Company, other than guarantees of Debt or other obligations Incurred by
any Person acquiring all or any portion of those business assets or
Restricted Subsidiaries of the Company for the purpose of financing that
acquisition, in a principal amount not to exceed the gross proceeds,
including non-cash proceeds, actually received by the Company or any of
its Restricted Subsidiaries in connection with that disposition; provided,
however, that such Debt is not reflected on the balance sheet of the
Company or any of its Restricted Subsidiaries, other than as contingent
obligations referred to in a footnote to financial statements and not
otherwise reflected on the balance sheet;
(12) Debt, including but not limited to Capitalized Lease
Obligations, mortgage financings or purchase money obligations, Incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property or assets, whether through
direct purchase of assets or the Capital Stock of any Person owning those
assets, or Incurred to refinance any such purchase price or cost of
construction or improvement in an aggregate amount not to exceed at any
one time outstanding $25.0 million;
(13) Acquired Debt or Disqualified Capital Stock of Persons that
are acquired by the Company or any of its Restricted Subsidiaries or
merged into a Restricted Subsidiary in accordance with the terms of this
Indenture; provided, however, that such Acquired Debt or Disqualified
Capital Stock is not Incurred in contemplation of that acquisition or
merger; and provided, further, that after giving effect to the acquisition
or merger, the Company would be permitted to Incur at least $1.00 of
additional Debt, other than Permitted Debt, under paragraph (a) of Section
4.09 without giving effect to the last sentence thereof; and
(14) Debt arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn inadvertently
against insufficient funds in the ordinary course of business, provided
that such Debt is extinguished within five business days of incurrence of
such Debt.
"Permitted Dividend" means the dividend or distribution, directly or
indirectly and from time to time, to the holders of the common stock of SFC of
an amount equal to the gross proceeds from the offering of the Notes.
17
"Permitted Holders" means Xxxxx Muse, its Affiliates and each of
their respective principals, employees, partners, officers, members and
directors.
"Permitted Investment" means an Investment by the Company or any of
its Restricted Subsidiaries in:
(1) cash or Cash Equivalents;
(2) an Investment existing on the date the Notes are first issued;
(3) receivables owing to the Company or any of its Restricted
Subsidiaries, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms,
including any receivables from livestock suppliers;
(4) 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;
(5) loans and advances to employees or independent contractors
made in the ordinary course of business in an aggregate amount outstanding
at any one time not to exceed $1.0 million;
(6) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company
or any of its Restricted Subsidiaries or in satisfaction of judgments or
claims or pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of a debtor;
(7) Hedging Obligations permitted under clause (5) of the
definition of "Permitted Debt;"
(8) other Investments by the Company or any of its Restricted
Subsidiaries, together with all other Investments made pursuant to this
clause (8), in an aggregate amount at any time outstanding not to exceed
$75.0 million; provided that the value of any such Investment shall be
determined at the time such Investment was made;
(9) Persons to the extent such Investment is received by the
Company or any Restricted Subsidiary as non-cash consideration for Asset
Sales effected in compliance with Section 4.12;
(10) prepayments and other credits to suppliers made in the
ordinary course of business;
(11) Investments in connection with pledges, deposits, payments or
performance bonds made or given in the ordinary course of business in
connection with or to secure statutory, regulatory or similar obligations,
including obligations under health, safety or environmental obligations;
(12) any transaction to the extent it constitutes an Investment
that is permitted by and made in accordance with the provisions of the
second paragraph of Section 4.14;
(13) the Company or a Wholly Owned Restricted Subsidiary; provided,
however, that the primary business of such Wholly Owned Restricted
Subsidiary or of its Wholly Owned Restricted Subsidiaries, as the case may
be, is a Related Business; and
(14) another Person if as a result of such Investment such other
Person becomes a Wholly Owned Restricted Subsidiary or is merged or
consolidated with or into, or transfers or conveys all or substantially
all its assets to, the Company or a Wholly Owned Restricted Subsidiary;
provided, however, that in each case such Person's primary business is a
Related Business.
"Permitted Liens" means:
18
(1) Liens to secure the Senior Credit Facilities;
(2) Liens on the outstanding Capital Stock or assets of Foreign
Subsidiaries to secure any intercompany notes issued by a Foreign
Subsidiary to the Company or any Restricted Subsidiary and any guarantee
of such intercompany notes by a Foreign Subsidiary evidencing a loan by
the Company or any Restricted Subsidiary to such Foreign Subsidiary of
proceeds from the Senior Credit Facilities;
(3) Liens to secure Debt permitted to be Incurred under clause
(12) of the definition of "Permitted Debt;" provided that any such Lien
may not extend to any property of the Company or any Restricted
Subsidiary, other than the property acquired, constructed or leased with
the proceeds of such Debt and such Liens secure Debt in an amount not in
excess of the original purchase price or the original cost of any such
property and any improvements or accessions to such property;
(4) Liens for taxes, assessments or governmental charges or levies
on the property of the Company or any Restricted Subsidiary if the same
shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate
proceedings promptly instituted and diligently concluded;
(5) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens, on the property of the Company
or any Restricted Subsidiary arising in the ordinary course of business
and securing payment of obligations that are not more than 60 days past
due or are being contested in good faith and by appropriate proceedings;
(6) Liens on the property of the Company or any Restricted
Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or other
obligations of a like nature and Incurred in a manner consistent with
industry practice, in each case which are not Incurred in connection with
the borrowing of money, the obtaining of advances or credit or the payment
of the deferred purchase price of property and which do not in the
aggregate impair in any material respect the use of property in the
operation of the business of the Company and the Restricted Subsidiaries
taken as a whole;
(7) Liens on property or assets of, or any shares of stock or
secured debt of, any Person at the time the Company or any Restricted
Subsidiary acquired such property or the Person owning such property,
including any acquisition by means of a merger or consolidation with or
into the Company or any Restricted Subsidiary; provided, however, that any
such Lien may not extend to any other property of the Company or any
Restricted Subsidiary; provided, further, however, that such Liens shall
not have been Incurred in anticipation of or in connection with the
transaction or series of transactions pursuant to which such property was
acquired by the Company or any Restricted Subsidiary;
(8) Liens on the property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien may
not extend to any other property of the Company or any other Restricted
Subsidiary that is not a direct Subsidiary of such Person; provided
further, however, that any such Lien was not Incurred in anticipation of
or in connection with the transaction or series of transactions pursuant
to which such Person became a Restricted Subsidiary;
(9) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Debt) or leases to which
the Company or any Restricted Subsidiary is party, or deposits to secure
public or statutory obligations of the Company, or deposits for the
payment of rent, in each case Incurred in the ordinary course of business;
(10) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character;
(11) Liens securing Hedging Obligations;
19
(12) Liens existing on the date the Notes are first issued not
otherwise described in clauses (1) through (11) above;
(13) Liens on the property of the Company or any Restricted
Subsidiary to secure any refinancing, refunding, extension, renewal or
replacement, in whole or in part, of any Debt secured by Liens referred to
in clause (3), (7), (8) or (12) above; provided, however, that any such
Lien shall be limited to all or part of the same property that secured the
original Lien (together with improvements and accessions to such property)
and the aggregate principal amount of Debt that is secured by such Lien
shall not be increased to an amount greater than the sum of:
(a) the outstanding principal amount, or, if greater, the
committed amount, of the Debt secured by Liens described under
clause (3), (7), (8) or (12) above, as the case may be, at the time
the original Lien became a Permitted Lien under this Indenture; and
(b) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, incurred by the Company or
such Restricted Subsidiary in connection with such refinancing,
refunding, extension, renewal or replacement;
(14) Liens not otherwise permitted by clauses (1) through (13)
above encumbering assets having an aggregate fair market value not in
excess of 5% of Consolidated Net Tangible Assets at the time of the
incurrence of such Lien; and
(15) subject to Section 4.11, a Lien securing Debt of a Restricted
Subsidiary incurred in accordance with Section 4.09.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same Debt as that evidenced by such
particular Note; and for the purposes of this definition, any Note authenticated
and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same Debt as the lost, destroyed or stolen Note.
"Preferred Stock" of any Person means any Capital Stock of that
Person that has preferential rights to any other Capital Stock of that Person
with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except
as otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified IPO" means the Initial Public Offering unless the Net IPO
Proceeds are less than $75 million, in which case, "Qualified IPO" means the
Initial Public Offering and all Subsequent Offerings until the aggregate Net
Offering Proceeds in underwritten public offerings of common stock of SFC are at
least equal to $75 million.
"Qualified IPO Effective Date" means the IPO Effective Date unless
the Initial Public Offering is not a Qualified IPO, in which case "Qualified IPO
Effective Date" means the first closing date for the underwritten public
offering of common stock of SFC on which the aggregate Net Offering Proceeds
from all underwritten public offerings of common stock of SFC are at least equal
to $75 million.
"Refinancing Debt" means any Debt that is Incurred by the Company or
any Restricted
20
Subsidiaries to refund, refinance, replace, renew, repay or extend any Debt of
the Company or its Restricted Subsidiaries outstanding on the date the Notes are
first issued or any Debt Incurred in accordance with Section 4.09 that does not:
(1) result in an increase in the aggregate principal amount of
Debt (such principal amount to include, for purposes of this definition
only, any premiums, fees, penalties or accrued interest paid with the
proceeds of the Refinancing Debt) of the Company or that Restricted
Subsidiary; or
(2) create Debt with:
(a) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Debt being refinanced;
or
(b) a final maturity earlier than the final maturity of the
Debt being refinanced;
provided that in the event the primary obligor on the Debt being refunded,
refinanced, renewed, repaid or extended is the Company or a Subsidiary
Guarantor, the Refinancing Debt may only be incurred by the Company or such
Subsidiary Guarantor, as the case may be.
"Registration Rights Agreement" means the Registration Rights
Agreement relating to the Notes and dated as of the date hereof, among the
Company, SFC and the initial purchasers set forth therein, as such agreement may
be amended, modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified on the face of a Note.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note
in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Note upon expiration of
the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary Global Note
in the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and Regulation S Temporary Global Note Legend and deposited
with and registered in the name of the Depository or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Note Legend" means the legend set
forth in Section 2.06(g)(iii) hereof to be placed on all Regulation S Temporary
Global Notes issued under this Indenture.
"Related Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the Company and
its Restricted Subsidiaries on the date the Notes are first issued, as
reasonably determined by the Company's Board of Directors.
"Related Parties" means any Person controlled by a Permitted Holder,
including any partnership of which a Permitted Holder or its Affiliates is the
general partner.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
21
"Restricted Definitive Note" means one or more Definitive Notes
bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note, the IAI Global
Note and the Regulation S Global Note.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" means:
(1) the declaration or payment of any dividend or the making of
any other distribution (other than dividends or distributions payable
solely in Qualified Capital Stock or in options, rights or warrants to
acquire Qualified Capital Stock) on shares of the Company's Capital Stock;
(2) the declaration or payment of any dividend or the making of
any other distribution on shares of the Capital Stock of a Restricted
Subsidiary to any Person (other than (a) to the Company or any of its
Wholly Owned Restricted Subsidiaries, (b) dividends or distributions made
by a Restricted Subsidiary on a pro rata basis to all stockholders of such
Restricted Subsidiary (or owners of an equivalent interest in the case of
a Restricted Subsidiary that is not a corporation) or (c) dividends or
distributions payable solely in its Qualified Capital Stock or in options,
rights or warrants to acquire Qualified Capital Stock);
(3) the purchase, redemption, retirement or other acquisition for
value of any Capital Stock of the Company held by Persons other than the
Company or a Restricted Subsidiary of the Company or any Capital Stock of
a Restricted Subsidiary held by Persons other than the Company or another
Restricted Subsidiary (in either case, other than in exchange for its
Qualified Capital Stock or options, rights or warrants to acquire
Qualified Capital Stock or to the extent that after giving effect to such
purchase, redemption, retirement or acquisition, such Restricted
Subsidiary would become a Wholly Owned Subsidiary);
(4) 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
Debt of the Company or a Subsidiary Guarantor (other than the purchase,
repurchase or other acquisition of Subordinated Debt purchased (A) in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of purchase, repurchase or acquisition or (B) in compliance with
Section 4.12 to the extent required by the indenture or other agreement or
instrument pursuant to which such Subordinated Debt was issued); or
(5) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Period" means the period commencing on the date the
Notes are first issued and ending on the earlier of (i) September 11, 2006 and
(ii) the Qualified IPO Effective Date.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Availability Notice" means a written notice from SFC to
the Trustee stating that the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act in connection with transfers of the
Notes in reliance on Rule 144A is available for distribution.
"Rule 903" means Rule 903 promulgated under the Securities Act.
22
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such property to another Person and
the Company or a Restricted Subsidiary leases it from such Person, other than
transactions between the Company and its Wholly Owned Restricted Subsidiaries or
between Wholly Owned Restricted Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Note" means the note in the principal amount of $150.0
million issued by Swift Foods Company to ConAgra Foods, and assigned by Swift
Foods Company to S&C Holdco 2, Inc.
"Senior Credit Facilities" means the Debt represented by:
(1) the Credit Agreement, dated September 19, 2002, among the
Company, OpCo, certain of their Subsidiaries, the lenders party thereto,
Citicorp USA, Inc., as Administrative Agent, and XX Xxxxxx Xxxxx Bank, as
Syndication Agent, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), as
amended and supplemented to and including the date hereof, and as the same
may be further amended, supplemented or otherwise modified from time to
time, including amendments, supplements or modifications relating to the
addition or elimination of Subsidiaries of the Company as borrowers,
guarantors or other credit parties thereunder; and
(2) the agreements evidencing any renewal, extension, refunding,
restructuring, replacement or refinancing thereof (whether with the
original Administrative Agent and lenders or another administrative agent
or agents or one or more other lenders and whether provided under the
original Senior Credit Facilities or one or more other credit or other
agreements or indentures).
"Senior Debt" of any Person means Debt (other than Subordinated
Debt) of the type specified in clauses (1), (2), (3) and (4) of the definition
of "Debt."
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SFC" means the corporation named "SFC" in the first paragraph of
this Indenture and, subject to the provisions of Article 5, shall include its
successors and assigns.
"SFC Guarantee" means the Guarantee of the Notes by SFC pursuant to
Article 10 and in the form of the Guarantee attached hereto as Exhibit E.
"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 Commission.
"Special Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Debt (including, without limitation, a scheduled
repayment or a scheduled sinking fund payment), the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Debt, and will not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment hereof.
"Subordinated Debt" means any Debt of the Company or a Subsidiary
Guarantor, whether
23
outstanding on the date the Notes are first issued or thereafter Incurred, which
is subordinate or junior in right of payment to the Notes or the Subsidiary
Guarantee of such Subsidiary Guarantor, as the case may be, pursuant to a
written agreement.
"Subsidiary," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, through one or more
intermediaries, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the time,
directly or indirectly, through one or more intermediaries, owned by such
Person. Notwithstanding anything in this Indenture to the contrary, all
references to the Company and its consolidated Subsidiaries or to financial
information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its Subsidiaries as to which financial
statements are prepared on a combined basis in accordance with GAAP and to
financial information prepared on such a combined basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall not
be deemed to be a Restricted Subsidiary for purposes of this Indenture.
"Subsidiary Guarantee" means any Guarantee of the Notes to be
executed by any Subsidiary of the Company pursuant to Section 4.21.
"Subsidiary Guarantor" means any Subsidiary that becomes a Guarantor
of the Notes pursuant to Section 4.21.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Tax Sharing Agreement" means the agreement, dated September 19,
2002, by and among the Company, on the one hand, and certain of its direct and
indirect parent entities and the entities that acquired and operated the
domestic cattle feeding operations of ConAgra Foods, on the other hand, as
amended.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Transaction Documents" means the Acquisition Agreement, together
with related documents, including the following documents:
(1) Preferred Supplier Agreement, dated September 19, 2002,
between ConAgra Foods and OpCo;
(2) By-Products Marketing Agreement, dated October 8, 2003,
between ConAgra Trade Group, Inc. and OpCo, as amended;
(3) By-Products Marketing Agreement, dated October 8, 2003, among
ConAgra Trade Group, Pty Ltd., ConAgra Trade Group, Inc. and Australia
Meat Holdings Pty Limited, as amended;
(4) Seller Note;
(5) Monitoring and Oversight Agreement, dated September 19, 2002,
among Swift Foods Company, OpCo, Swift Pork Company, Swift Beef Company,
S&C Australia Holdco Pty. Ltd., Australia Meat Holdings Pty. Limited, S&C
Holdco 2, Inc., the Company and Xxxxx Muse & Co. Partners, L.P.,
as amended;
(6) Financial Advisory Agreement, dated September 19, 2002, among
Swift Foods Company, OpCo, Swift Pork Company, Swift Beef Company, S&C
Australia Holdco Pty. Ltd., Australia Meat Holdings Pty. Limited, S&C
Holdco 2, Inc., the Company and Xxxxx Muse & Co. Partners, L.P., as
amended;
(7) Stockholders' Agreement, dated September 19, 2002, among HMTF
Rawhide, L.P.,
24
ConAgra Foods, Hicks, Muse, Xxxx & Xxxxx Incorporated and Swift Foods
Company, as amended;
(8) the employment and severance arrangements with senior
management of OpCo;
(9) Indemnification and Release Agreement, dated September 19,
2002, among ConAgra Foods, Swift Foods Company, S&C Holdco 2, Inc., the
Company, OpCo, S&C Australia Holdco Pty. Ltd., Swift Cattle Holdco, Inc.,
Swift Brands Company, Swift Beef Company, Swift Pork Company, Kabushiki
Kaisha SAC Japan, Swift Refrigerated Foods, S.A. de C.V., Xxxxxxx Finance
Company, Inc., Burcher Pty. Limited, Xxxxxxx, Inc., Australia Meat
Holdings Pty. Limited, Xxxxxx Bros. Co., Inc., Xxxxxxx Food Distribution
Company and Xxxxxxx International Sales Corporation;
(10) Contribution Agreement;
(11) Tax Sharing Agreement;
(12) Indemnity Side Letter, dated September 3, 2002, from ConAgra
Foods and Swift Foods Company to HMTF Rawhide, L.P.;
(13) the lease for the Hyrum, Utah facilities from ConAgra Foods or
its Affiliates to the Company or its Affiliates;
(14) intercompany promissory notes; and
(15) Patent License Agreement, dated September 19, 2002, between
ConAgra Foods and Swift Brands Company;
and, in each case, the schedules, annexes and exhibits thereto and any
amendments thereto entered into after the date the Notes are first issued to the
extent that the terms, taken as a whole, of any such amendment are not otherwise
disadvantageous to the Holders of the Notes in any material respect.
"Treasury Yield" means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury securities with a
constant maturity (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519) that has become publicly available at
least two business days prior to the date fixed for redemption or, if such
statistical release is no longer published, any publicly available source of
similar market data) most nearly equal to the then remaining maturity of that
note. If the remaining maturity of such note is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive Notes
that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes, in the
form of Exhibit A attached hereto, that do not and are not required to bear the
Private Placement Legend and are deposited with and registered in the name of
the Depositary or its nominee.
"Unrestricted Subsidiary" means any direct or indirect Subsidiary of
a Person that is designated by the Board of Directors of that Person as an
Unrestricted Subsidiary and any Subsidiary of that Unrestricted Subsidiary. The
Company and any of its Restricted Subsidiaries will only be permitted to provide
credit support for Debt of an Unrestricted Subsidiary, including by way of
intercompany Debt, guarantee or otherwise, to the extent that the Company is
permitted to Incur such Debt under Section 4.09 (without giving effect to last
sentence thereof)
25
and to make an Investment under Section 4.10 (without giving effect to Section
4.10(c)(i) and, for purposes of this definition only, applying the restrictions
of Section 4.10(c)(ii) to the Company during the Interest Restricted Period).
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution of the Board of Directors of the Company
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was permitted by
Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09 (without
taking into account the last sentence thereof), the Company will be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation will be deemed to be an incurrence of Indebtedness by one
of the Company's Restricted Subsidiaries of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 (without taking into account the
last sentence thereof), calculated on a pro forma basis as if such designation
had occurred at the beginning of the four-quarter reference period; and (2) no
Default or Event of Default would be in existence following such designation.
"U.S. Government Securities" 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.
"Voting Stock" of any Person as of any date means the Capital Stock
of that Person that is at the time entitled to vote in the election of that
Person's Board of Directors.
"Weighted Average Life to Maturity" means, when applied to any Debt
at any date, the number of years obtained by dividing
(1) the then outstanding aggregate principal amount of such Debt
into
(2) the total of the product obtained by multiplying
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof; by
(b) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of
such payment.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
that is a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" means a Subsidiary of any Person, all of
the outstanding Capital Stock of which (other than any director's qualifying
shares or shares owned by foreign nationals to the extent mandated by applicable
law) is owned by such Person or one or more Wholly Owned Subsidiaries of such
Person.
"Wholly Owned Subsidiary Guarantor" means any Subsidiary Guarantor
that is a Wholly Owned Subsidiary.
Section 1.02. OTHER DEFINITIONS.
26
Defined in
Term Section
---- -----------
"Acceleration Notice"....................................................... 6.02
"Affiliate Transaction"..................................................... 4.14
"Asset Sale Offer".......................................................... 3.09(a)
"Authentication Order"...................................................... 2.02
"Benefited Party"...........................................................10.01
"Change of Control Offer"................................................... 4.18(a)
"Change of Control Payment Date"............................................ 4.18(a)
"Change of Control Purchase Price".......................................... 4.18(a)
"Covenant Defeasance"....................................................... 8.03
"Deficiency"................................................................ 4.01(b)
"Defeasance Trust".......................................................... 8.04(a)
"DTC"....................................................................... 2.03
"Event of Default".......................................................... 6.01
"Interest Payment Date"..................................................... 4.01
"IPO Redemption Offer"...................................................... 4.19(a)
"IPO Redemption Payment Date"............................................... 4.19(a)(i)(B)
"IPO Redemption Purchase Price"............................................. 4.19(a)
"Legal Defeasance".......................................................... 8.02
"losses".................................................................... 7.07
"Offer Amount".............................................................. 3.09(a)
"Offer Period".............................................................. 3.09(a)
"Paying Agent".............................................................. 2.03
"Purchase Date"............................................................. 3.09(a)
"PIK Interest Portion"...................................................... 4.01(b)
"PIK Note".................................................................. 4.01(b)
"Registrar"................................................................. 2.03
"Security Register"......................................................... 4.18(a)
"Subsequent Offering"....................................................... 4.19(a)
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company, SFC, each other Guarantor
and any successor obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA and not otherwise defined herein have the meanings so assigned to
them.
Section 1.04 RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
27
(ii) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular;
(v) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and subdivisions of this instrument as originally executed;
(vi) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
(vii) "including" means "including without limitation;"
(viii) provisions apply to successive events and transactions; and
(ix) 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.
ARTICLE 2.
THE NOTES
Section 2.01. FORM AND DATING.
(a) GENERAL. The Notes are general obligations of the Company and
will be unsecured except to the extent provided in Section 4.11. The Notes shall
be in denominations of $1.00 and integral multiples thereof. The Notes that may
be issued hereunder shall be limited to the Initial Notes, the PIK Notes and any
Notes issued pursuant to Sections 2.06, 2.07, 2.10, 3.06, 3.09, 4.18, 4.19 or
9.05, all of which shall constitute a single class of securities for purposes of
this Indenture. The Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto, which is hereby incorporated
in and expressly made part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage in
addition to those set forth on Exhibit A. Each Note shall be dated the date of
its authentication. The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) FORM OF NOTES. The Initial Notes shall be issued as Definitive
Notes and, until delivery by SFC of the Rule 144A Availability Notice to the
Trustee, any other Note issued by the Company or issued upon exchange or
transfer pursuant to the terms hereof shall be issued as a Definitive Note.
Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Notes issued as
Definitive Notes shall be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions
and transfers of interests therein. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
28
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Distribution Compliance Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United States Beneficial
Ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any Beneficial Owners thereof who
acquired an interest therein during the Distribution Compliance Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a Beneficial Ownership interest in a Global Note, bearing a
Private Placement Legend, all as contemplated by Section 2.06(b) hereof), and
(ii) an Officers' Certificate from the Company. Following the termination of the
Distribution Compliance Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in the
Regulation S Permanent Global Note pursuant to the Applicable Procedures.
Simultaneously with the authentication of the Regulation S Permanent Global
Note, the Trustee shall cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global Note and the
Regulation S Permanent 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 the case may be, in connection with transfers of interests as
hereinafter provided.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall only apply to
Global Notes deposited with the Trustee, as custodian for the Depositary.
Participants and Indirect Participants 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 for the Depositary or under such Global Note, and the
Depositary shall 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 Participants or
Indirect Participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Note.
Section 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual or
facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by
an Officer (an "AUTHENTICATION ORDER"), authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company or any of their
respective Subsidiaries.
Section 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The
29
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent with respect to the Notes and to act as Custodian
with respect to the Global Notes, and the Trustee hereby initially agrees so to
act.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest and Special Interest, if any, on the
Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05. HOLDER 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA Section 312(a).
Section 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (1) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or (2)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; or (3) an Event of Default entitling the
Holders to accelerate shall have occurred and be continuing and the Registrar
has received a written request from the Depositary to issue Definitive Notes;
provided that in no event shall the Regulation S Temporary Global Note be
exchanged by the Company for Definitive Notes prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act. Upon the occurrence of any of the preceding events in (1), (2) or (3)
above, Definitive Notes shall be issued in denominations of $1.00 or integral
multiples thereof and in such names as the Depositary shall instruct the Trustee
in writing. Global Notes also may be exchanged or replaced, in whole or in part,
as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
30
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Distribution Compliance Period,
transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than a distributor (as defined in Rule 902(d) of the
Securities Act)). Beneficial interests in any Unrestricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A)(1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (B)(1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act. Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note
to Another Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S
31
Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar and the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred
pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes for Beneficial Interests in Restricted Global Notes
Prohibited. Beneficial interests in an Unrestricted Global Note cannot
32
be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
NOTES.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in clauses (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
mail or deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
33
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and mail
or deliver to the Person designated in the instructions a Definitive Note
in the
34
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note
or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in clauses (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
35
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Unrestricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in
a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such exchange or
transfer from a Definitive Note to a beneficial interest is effected
pursuant to clauses (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more
36
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(vi) This clause (d) is subject to the restrictions set forth in
Section 2.01(b) and Section 2.16.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a broker-dealer pursuant
to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or
37
(2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (B) Unrestricted Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes tendered for acceptance by Persons who made the
foregoing certification and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and mail or deliver to the Persons designated by the Holders of
Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by clause (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER"
38
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE OF THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS
THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE
CODE ("CODE") OR PROVISIONS UNDER APPLICABLE FEDERAL, STATE, LOCAL, NON-U.S. OR
OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE
CODE ("SIMILAR LAWS"), AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO
INCLUDE "PLAN ASSETS" OF SUCH PLANS, ACCOUNTS AND ARRANGEMENTS (EACH A "PLAN")
AND IS NOT PURCHASING THE NOTES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN
OR (B) ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES IS EITHER
NOT A PROHIBITED TRANSACTION UNDER ERISA OR THE CODE AND IS OTHERWISE
PERMISSIBLE UNDER ALL SIMILAR LAWS, OR IS ENTITLED TO EXEMPTIVE RELIEF FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE IN ACCORDANCE WITH ONE
OR MORE OF THE PROHIBITED TRANSACTION CLASS EXEMPTIONS, AND IS OTHERWISE
PERMISSIBLE UNDER ALL APPLICABLE SIMILAR LAWS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to clauses (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
39
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."
(iii) Regulation S Temporary Global Note Legend. Each Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(iv) Definitive Note Legend. Prior to delivery by SFC of the Rule 144A
Availability Notice to the Trustee, each Definitive Note shall bear a
legend in substantially the following form:
"UNTIL SWIFT FOODS COMPANY XXXXXXXX XXX RULE 144A AVAILABILITY
NOTICE (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE), (A) THIS SECURITY MAY
NOT BE TRANSFERRED IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT AND (B)
THIS SECURITY MAY NOT BE EXCHANGED FOR A BENEFICIAL INTEREST IN A GLOBAL NOTE OR
TRANSFERRED TO A PERSON THAT TAKES DELIVERY THEREOF IN THE FORM OF A BENEFICIAL
INTEREST IN A GLOBAL NOTE."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.12, 4.18, 4.19 and 9.05 hereof).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
40
(iv) Neither the Registrar nor the Company shall be required (A) to
issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part
or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or
the Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(vii) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
(viii) The Trustee is hereby authorized to enter into a letter of
representation with the Depositary in the form provided by the Company and
to act in accordance with such letter.
Section 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note had
become or is about to become due and payable, the Company, in its discretion,
may, instead of issuing a new Note, pay such Note, upon satisfaction of the
conditions set forth in the preceding paragraph.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee or deemed outstanding pursuant to Section 4.01
except for those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced note is held by a bona fide purchaser.
41
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, amendment, supplement, waiver or
consent, Notes owned by the Company, or by any Affiliate of the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Notes that the Trustee
knows are so owned shall be so disregarded.
Section 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
upon direction by the Company and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirements of
the Exchange Act). Certification of the destruction of all cancelled Notes shall
be delivered to the Company from time to time upon request. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. PAYMENT OF INTEREST; DEFAULTED INTEREST.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is being registered at
the close of business on the Regular Record Date for such interest payment.
If the Company defaults in a payment of interest or Special
Interest, if any, on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. 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. The
Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
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Section 2.13. CUSIP OR ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" or
"ISIN" numbers in notices of redemption as a convenience to Holders; provided,
however, that 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. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
Section 2.14. SPECIAL INTEREST.
If Special Interest is payable by the Company pursuant to the
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Special Interest that is payable and (ii) the date on which such interest
is payable, which shall not be later than the next Interest Payment Date. Unless
and until a Responsible Officer of the Trustee receives such a certificate or
instruction or direction from the Holders in accordance with the terms of this
Indenture, the Trustee may assume without inquiry that no Special Interest is
payable. The foregoing shall not prejudice the rights of the Holders with
respect to their entitlement to Special Interest as otherwise set forth in this
Indenture or the Notes and pursuing any action against the Company directly or
otherwise directing the Trustee to take any such action in accordance with the
terms of this Indenture and the Notes. If the Company has paid Special Interest
directly to the persons entitled to it, the Company shall deliver to the Trustee
a certificate setting forth the particulars of such payment.
Section 2.15. ISSUANCE OF PIK NOTES
The Company shall be entitled to issue PIK Notes as provided
in Section 4.01 hereof. With respect to such PIK Notes, the Company shall
deliver to the Trustee:
(a) no later than the record date for the relevant Interest
Payment Date, a written notice setting forth the extent to which such interest
will be made in the form of a PIK Note or Notes; and
(b) not later than one Business Day prior to the relevant
Interest Payment Date, an order to authenticate and deliver such PIK Notes.
Any PIK Note shall, after being executed and authenticated
pursuant to Section 2.02, be (i) delivered by the Trustee to the Holders as of
the relevant record date at such Holders' registered address if the Notes are
then held in the form of Definitive Notes, or (ii) deposited with or on behalf
of DTC for the benefit of the Beneficial Owners as of the relevant record date
if the Notes are held in the form of a Global Note.
Section 2.16. RULE 144A AVAILABILITY NOTICE
Until SFC delivers the Rule 144A Availability Notice, (i) no
Note may be transferred in reliance on Rule 144A under the Securities Act and
(ii) no Note may be exchanged for a beneficial interest in a Global Note or
transferred to a Person that takes delivery thereof in the form of a beneficial
interest in a Global Note.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
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Section 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof and paragraph 5 of the Notes, it
shall furnish to the Trustee, at least 30 days (or in the case of a partial
redemption, at least 45 days) but not more than 60 days before a redemption date
unless a shorter notice shall be satisfactory to the Trustee, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall, therefore, be void and of no effect.
Section 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with any applicable depositary and legal requirements and the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, at
random or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption at random, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1.00 or integral multiples
thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1.00, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Special Interest, if any, on Notes called for
redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
44
(h) 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.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in Section 3.01 and this
Section 3.03. If any of the Notes are in the form of a Global Note, then the
Company shall modify such notice to the extent necessary to comply with the
Applicable Procedures that apply to the redemption of Global Notes.
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price, together with accrued and unpaid
interest and Special Interest, if any, thereon. A notice of redemption may not
be conditional.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 11:00 a.m. New York time on any redemption date,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest and
Special Interest, if any, up to, but excluding, the redemption date, on all
Notes (or portions of Notes) to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest and Special Interest, if any,
on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and Special Interest, if
any, shall cease to accrue on the Notes or the portions of Notes called for
redemption, whether or not such Notes are presented for payment. If a Note is
redeemed on or after a Regular Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest and Special
Interest, if any, as of the date of redemption shall be paid to the Person in
whose name such Note was registered at the close of business on such Regular
Record Date and no additional interest shall be payable to Holders whose Notes
are being redeemed. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest and Special Interest, if any, shall be paid on
the unpaid principal from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. OPTIONAL REDEMPTION.
(a) The Company may redeem all or any portion of the Notes, at
once or over time, after giving the required notice under this Indenture. The
Notes may be redeemed at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Special
Interest, if any, on the Notes redeemed, to, but excluding, the applicable
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 periods indicated below:
Redemption Period Percentage
------------------ ----------
March 11, 2005 - September 10, 2006....................... 102.00%
September 11, 2006 - March 10, 2008....................... 105.50%
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March 11, 2008 - March 10, 2009 102.75%
March 11, 2009 and thereafter............................. 100.00%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof. Any Notes
redeemed pursuant to this Section 3.07 shall be delivered to the Trustee for
cancellation in accordance with Section 2.11.
Section 3.08 MANDATORY REDEMPTION OR REPURCHASE.
Except as set forth in Sections 3.09, 4.12, 4.18 and 4.19
hereof, the Company shall not be required to make mandatory redemption payments,
repurchase offers or sinking fund payments with respect to the Notes.
Section 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(a) In the event that, pursuant to Section 4.12 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(an "ASSET SALE OFFER"), it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "OFFER PERIOD"). No
later than five Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.12 hereof (the "OFFER AMOUNT")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after a Regular Record Date but
on or prior to the related Interest Payment Date, then any accrued and unpaid
interest and Special Interest, if any, to, but excluding, the Purchase Date
shall be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of the Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.12 hereof and the length of time the Asset Sale Offer
shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(iv) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest and Special Interest, if any, after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples
of $1.00 only;
(vi) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
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(vii) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(viii) that, if 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 Notes in denominations of $1.00 or
integral multiples thereof shall be purchased); and
(ix) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Purchase Date. Any Notes repurchased pursuant to this Section
3.09 shall be delivered to the Trustee for cancellation in accordance with
Section 2.11.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Section 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. PAYMENT OF NOTES.
(a) Interest on the Notes shall accrue at the rate of 11.00%
per annum if interest is paid in cash and at the rate of 12.00% per annum if
interest is paid in the form of PIK Notes. The Company shall pay interest
semi-annually on May 1 and November 1of each year, or if such day is not a
Business Day, on the next succeeding Business Day (each, an "INTEREST PAYMENT
DATE").
(b) During the Interest Restricted Period, the Company shall
pay cash interest due on the Notes on each Interest Payment Date to the extent
of Available Cash on such Interest Payment Date. To the extent that Available
Cash on an Interest Payment Date is insufficient to pay in full all interest due
on the Notes on any Interest Payment Date in cash, the Company shall pay any
such cash deficiency (the "DEFICIENCY") by issuing, causing the Trustee to
authenticate and delivering to the Holders, on such Interest Payment Date,
additional Notes (each a "PIK NOTE") having an aggregate principal amount equal
to PIK Interest Portion (as defined below) on such Interest Payment Date, having
an issuance date as of such Interest Payment Date and otherwise having
substantially identical terms to the Notes (including, with respect to the
interest rate). PIK Notes shall be issued pursuant to Section 2.15 hereof. The
"PIK INTEREST PORTION" on any Interest Payment Date shall be an amount equal to
the result of multiplying (i) the quotient of (A) the Deficiency with respect to
such Interest Payment Date divided by (B) the accrued and unpaid cash interest
payable on such Interest Payment Date (determined prior to the application of
any Available Cash), by (ii) the aggregate principal amount of Notes outstanding
on the Interest Payment Date
47
(excluding the PIK Notes, if any, to be issued on such Interest Payment Date
under this Section 4.01(b)) and by (iii) 12.00% per annum.
(c) After the Interest Restricted Period, the Company will pay
interest in either cash or in PIK Notes or both at its option.
(d) Interest on each PIK Note shall accrue from the Interest
Payment Date in respect of which such additional PIK Note was issued until
repayment of the principal and payment of all accrued interest in full. If for
any reason one or more PIK Notes shall not be issued, authenticated and
delivered in accordance herewith, such PIK Notes shall be deemed to have been
issued, authenticated and delivered for all purposes of this Indenture and, in
particular, interest shall accrue on the Notes such that the aggregate interest
due and payable at maturity and on each Interest Payment Date would be the same
as if all PIK Notes not issued, authenticated and delivered had been issued,
authenticated and delivered, and the principal amount payable at maturity with
respect to the outstanding Notes shall be an amount equal to the sum of the
principal amount outstanding hereunder and the aggregate principal amount that
would be outstanding if the PIK Notes not issued, authenticated and delivered
had been issued, authenticated and delivered.
(e) During the Interest Restricted Period and to the extent of
Available Cash on an Interest Payment Date, on each Interest Payment Date, the
Company shall cause OpCo to declare and pay a cash dividend or distribute to the
Company the amount of interest due on the Notes on such Interest Payment Date.
(f) The Company shall pay or cause to be paid the principal
of, premium, if any, interest and Special Interest, if any, on, the Notes on the
dates and in the manner provided herein and in the Notes. Principal, premium, if
any, and interest and Special Interest, if any, shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 11:00 a.m. New York time on the due date a duly issued and
authenticated PIK Note or money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest and Special Interest, if any, then due. The Company shall
pay Special Interest, if any, in the same manner as provided herein for
interest, on the dates and in the amounts set forth in the Registration Rights
Agreement.
(g) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.
(h) Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain an office or agency (which may
be an office or drop facility of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be presented or surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
48
(c) The Company hereby designates the Corporate Trust Office
of the Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.03.
Section 4.03. REPORTS.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, prior to the
IPO Effective Date, so long as any Notes are outstanding the Company shall file
with the Commission, to the extent such submissions are accepted for filing with
the Commission, and shall furnish to the Trustee, within 15 days after it is or
would have been required to be filed with the Commission:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms with respect to the
Notes under Section 15(d) of the Exchange Act, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, a report on the annual
financial statements certified by the Company's certified independent
accountants.
(b) Following the IPO Effective Date, notwithstanding that SFC
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, so long as any Notes are outstanding, SFC shall file with the
Commission, to the extent such submissions are accepted for filing with the
Commission, and shall furnish to the Trustee, within 15 days after it is or
would have been required to be filed with the Commission:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if SFC were required to file such Forms with respect to the Notes
under Section 15(d) of the Exchange Act, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
with respect SFC, the Company and any other Guarantors and, with respect
to the annual information only, a report on the annual financial
statements of SFC, including the financial information about the Company
and any other Guarantors required by Regulation S-X under the Exchange
Act, in each case, certified by the certified independent accountants of
SFC; and
(ii) all information that would be required to be filed with the
Commission on Form 8-K if SFC were required to file such reports with
respect to the Notes.
(c) At any time prior to the IPO Effective Date and after
delivery by SFC to the Trustee of the Rule 144A Availability Notice, SFC and any
other Guarantors shall furnish to the Holders, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company and its Subsidiaries
have kept, observed, performed and fulfilled their obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company and its
Subsidiaries have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest
or Special Interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
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(b) The Company shall comply with TIA Section 314(a)(2).
(c) The Company shall deliver to the Trustee, within 5
Business Days after becoming aware of the occurrence thereof, written notice in
the form of an Officers' Certificate of any event that with the giving of notice
and the lapse of time would become an Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.
Section 4.05. TAXES.
The Company shall pay or discharge, and shall cause each of
its Restricted Subsidiaries to pay or discharge, prior to delinquency, all
material taxes, assessments, and governmental levies; provided that neither the
Company nor any such Restricted Subsidiary shall be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP or where the failure to effect such payment
is not adverse in any material respect to the Holders.
Section 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that 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 covenants that it shall not, by resort to any
such law, 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 has been enacted.
Section 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.08. PAYMENTS FOR CONSENT.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to or for the
benefit of 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 or is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.09. INCURRENCE OF ADDITIONAL DEBT AND ISSUANCE OF CAPITAL STOCK.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including
Acquired Debt), other than Permitted Debt, and the Company shall not issue any
Disqualified Capital Stock and its Restricted Subsidiaries shall not issue any
Preferred Stock, except Preferred Stock issued to the Company or a Restricted
Subsidiary of the Company; provided, however, that the Company and any
Restricted Subsidiary may Incur Debt or issue shares of such Capital Stock, in
either case, if on the date of that Incurrence or issuance, and after giving
effect to the Incurrence of such Debt or the issuance of such Capital Stock
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and the application of the proceeds therefrom, the Consolidated Coverage Ratio
of the Company would be greater than 2.25 to 1.00. Notwithstanding the
foregoing, during the Restricted Period, the Company shall not (A) Incur any
Debt (including Acquired Debt), other than (1) the Notes, (2) the Convertible
Notes Guarantee, (3) any other Debt existing on the date the Notes are first
issued, (4) Refinancing Debt and (5) guarantees of any Debt of Restricted
Subsidiaries permitted by this Indenture to be Incurred, or (B) issue any
Disqualified Capital Stock.
(b) For purposes of determining compliance with paragraph (a)
of this Section 4.09, in the event that an item of proposed Debt meets the
criteria of more than one of the categories of Permitted Debt or is entitled to
be Incurred pursuant to paragraph (a) of this Section 4.09, the Company may, in
its sole discretion, at the time the proposed Debt is Incurred:
(i) classify all or a portion of that item of Debt on the date of
its Incurrence under either paragraph (a) of this Section 4.09 or under
any category of Permitted Debt;
(ii) reclassify at a later date all or a portion of that or any
other item of Debt as being or having been Incurred in any manner that
complies with this Section 4.09 (without taking into account the last
sentence of Section 4.09(a)); and
(iii) elect to comply with this Section 4.09 and the applicable
definitions in any order;
provided, however, that all outstanding Debt under the Senior Credit Facilities
immediately following the date the Notes are first issued shall be deemed to
have been incurred pursuant to clause (2) of the definition of Permitted Debt.
Section 4.10. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not cause or permit any
of its Restricted Subsidiaries to, directly or indirectly, make any Restricted
Payment if at the time of that Restricted Payment and immediately after giving
effect to that Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or would result from that Restricted Payment;
(ii) the Company is not able to Incur an additional $1.00 of Debt
pursuant to paragraph (a) of Section 4.09 (without taking into account the
last sentence thereof); or
(iii) the aggregate amount of the Restricted Payment and all other
Restricted Payments declared or made subsequent to the date the Notes are
first issued would exceed the sum of:
(A) 50% of Consolidated Net Income of the Company
accrued subsequent to February 27, 2005 to the most recent
date for which financial information is available to the
Company, taken as one accounting period (or if the aggregate
amount of Consolidated Net Income for such period shall be a
deficit, minus 100% of such deficit); plus
(B) 100% of the aggregate net proceeds, including the
net fair market value of property other than cash as
determined by the Board of Directors of the Company in good
faith, received subsequent to the date the Notes are first
issued by the Company from any Person, other than a Subsidiary
of the Company, from (x) the issue or sale of Equity Interests
of the Company (other than Disqualified Capital Stock)
(including, without limitation, in a merger, consolidation,
acquisition of property or any other form of transaction where
the consideration involved consists solely of Capital Stock
(other than Disqualified Capital Stock)) or (y) the issue or
sale of Disqualified Capital Stock or debt securities of the
Company or any of its Restricted Subsidiaries that have
51
been converted into or exchanged for Equity Interests of the
Company (other than Disqualified Capital Stock) (including,
without limitation, in a merger, consolidation, acquisition of
property or any other form of transaction where the
consideration involved consists solely of Capital Stock (other
than Disqualified Capital Stock)) subsequent to the date the
Notes are first issued, excluding, in each case, Excluded
Proceeds and excluding
(1) any net proceeds from issuances and sales
financed directly or indirectly using funds borrowed
from the Company or any Restricted Subsidiary, until and
to the extent that borrowing is repaid, but including
the proceeds from the issuance and sale of any
securities convertible into or exchangeable for
Qualified Capital Stock to the extent those securities
are so converted or exchanged and including any
additional proceeds received by the Company upon the
conversion or exchange;
(2) any net proceeds received from issuances and
sales that are used to consummate a transaction
described in paragraph (b)(ii) of this Section 4.10;
(3) any net cash proceeds received from the
issuance and sale of Designated Preferred Stock; plus
(C) an amount equal to the sum, without duplication, of:
(1) the net reduction in Investments (other than
Permitted Investments) made by the Company or any of its
Restricted Subsidiaries in any Person resulting from
repurchases, repayments or redemptions of that
Investment by that Person;
(2) proceeds realized on the sale of that
Investment to an unaffiliated purchaser; and
(3) proceeds representing the return of capital
(excluding dividends and distributions),
in each case, received by the Company or any of its
Restricted Subsidiaries; plus
(D) an amount equal to the sum, without duplication, of
any amounts, including the net fair market value of property
other than cash as determined by the Board of Directors of the
Company in good faith, received by the Company or any of its
Restricted Subsidiaries as a capital contribution (including,
without limitation, in a merger, consolidation, acquisition of
property or any other form of transaction where the
consideration involved consists solely of Capital Stock (other
than Disqualified Capital Stock)) subsequent to the date the
Notes are first issued (including, without limitation, (A) any
contributions to the Company or any of its Restricted
Subsidiaries from SFC or Affiliates of SFC under the
Contribution Agreement or the Tax Sharing Agreement, (B) any
payments or contributions made directly to the Company or any
of its Restricted Subsidiaries by any of the parties to the
Contribution Agreement or the Tax Sharing Agreement or (C) any
indemnification payments made directly to the Company or any
of its Restricted Subsidiaries by any of the parties to the
Acquisition Agreement); plus
(E) if the Company designates any Unrestricted
Subsidiary as a Restricted Subsidiary after the date the Notes
are first issued, an amount equal to
52
the fair market value of the Investment in that Unrestricted
Subsidiary by the Company and its Restricted Subsidiaries at
the time the Unrestricted Subsidiary is designated as a
Restricted Subsidiary.
(b) The provisions of Section 4.10(a) will not prohibit:
(i) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if the dividend or
distribution would have been permitted on the date it is declared;
(ii) the declaration and payment of dividends to holders of any
class or series of Designated Preferred Stock (other than Disqualified
Capital Stock) issued after the date the Notes are first issued; provided,
however, that after giving effect to such issuance or declaration on a pro
forma basis, the Company would be able to Incur an additional $1.00 of
Debt under paragraph (a) of Section 4.09 without taking into account the
last sentence thereof;
(iii) the purchase, redemption or other acquisition or retirement of
any Capital Stock or Subordinated Debt of the Company or any warrants,
options or other rights to acquire shares of any of that Capital Stock
either:
(A) solely in exchange for shares of Qualified Capital Stock
or other warrants, options or rights to acquire Qualified Capital
Stock,
(B) through the application of the net proceeds of a
substantially concurrent sale for cash, other than to a Subsidiary
of the Company, of shares of Qualified Capital Stock or warrants,
options or other rights to acquire Qualified Capital Stock, or
(C) in the case of Disqualified Capital Stock, solely in
exchange for, or through the application of the net proceeds of a
substantially concurrent sale for cash, other than to a Subsidiary
of the Company, of Disqualified Capital Stock;
(iv) repurchases of Capital Stock, warrants, options or rights to
acquire Capital Stock deemed to occur upon exercise of warrants, options
or rights to acquire Capital Stock if such Capital Stock, warrants,
options or rights represent a portion of the exercise price of such
warrants, options or rights;
(v) payments or distributions, directly or indirectly through any
direct or indirect parent of the Company, to dissenting stockholders
pursuant to applicable law or in connection with the settlement or other
satisfaction of legal claims made pursuant to or in connection with a
consolidation, merger or transfer of assets;
(vi) cash payments in lieu of the issuance of fractional shares;
(vii) payments made to the holders of Equity Interests in any Person
that is merged or consolidated with or into the Company or any Restricted
Subsidiary pursuant to any merger, consolidation or sale of assets
effected in accordance with Section 5.01; provided, however, that no such
payment may be made pursuant to this clause (vii) unless, after giving pro
forma effect to such transaction (and the Incurrence of any Debt in
connection with that transaction and the use of the proceeds of that
transaction), the Company would be able to Incur $1.00 of additional Debt
under paragraph (a) of Section 4.09 without taking into account the last
sentence thereof;
(viii) payments made to purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock or Subordinated Debt of the
Company or any Capital Stock or Debt of any of its Restricted Subsidiaries
or any direct or indirect parent of the Company pursuant to provisions
requiring the Company, any of its Restricted Subsidiaries or any direct or
indirect parent of the Company to offer to purchase,
53
redeem, defease or otherwise acquire or retire for value such Capital
Stock, Subordinated Debt or Debt upon the occurrence of a "change of
control," as defined in the charter provisions, agreements or instruments
governing such Capital Stock, Subordinated Debt or Debt; provided,
however, that the Company has made a Change of Control Offer and has
purchased all Notes tendered in connection with that Change of Control
Offer;
(ix) dividends on the Company's Capital Stock (other than
Disqualified Capital Stock) or payments to any direct or indirect parent
of the Company to pay dividends on its Capital Stock after the first
underwritten Equity Offering in an annual amount not to exceed 6.0% of the
gross proceeds (before deducting underwriting discounts and commissions
and other fees and expenses of the offering) received from shares of
Capital Stock (other than Disqualified Capital Stock of the Company) sold
for the account of the issuer of those shares (and not for the account of
any stockholder) in any underwritten Equity Offering; provided that in the
case of any such Equity Offering by any direct or indirect parent of the
Company, the net cash proceeds of such Equity Offering are contributed to
the common or non-redeemable preferred equity capital of the Company or
any Wholly Owned Restricted Subsidiary;
(x) payments of dividends, distributions or other amounts by the
Company to fund the payment by any direct or indirect parent of the
Company of administrative, legal, financial, accounting or other similar
expenses relating to such parent's direct or indirect ownership of the
Company and to pay other corporate overhead expenses relating to such
ownership interest, including directors' fees, indemnifications and
similar arrangements, so long as such payments are fair and reasonable and
are paid as and when needed by any such direct or indirect parent of the
Company;
(xi) payments of dividends, distributions or other amounts to fund
the repurchase, redemption or other acquisition or retirement for value of
any of the Company's or its direct or indirect parent's Equity Interests
or any Equity Interests of any Restricted Subsidiaries held by any
then-existing or former director, officer, employee, independent
contractor or consultant of the Company, its direct or indirect parent or
any Restricted Subsidiary or their respective assigns, estates or heirs;
provided, however, that the price paid for all repurchased, redeemed,
acquired or retired Equity Interests in all cases, other than as a result
of death or disability, does not exceed $1.0 million in the aggregate;
(xii) payments of fees and expenses incurred in connection with the
consummation of the offering of the Notes and the Convertible Notes;
(xiii) the redemption, repurchase or other acquisition or retirement
of Subordinated Debt made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Refinancing Debt; provided that such
Refinancing Debt shall also constitute Subordinated Debt;
(xiv) payments by the Company under the terms of the Transaction
Documents as such documents are in effect on the date the Notes are first
issued or as amended in accordance with Section 4.14;
(xv) Investments in Unrestricted Subsidiaries that are made with
Excluded Proceeds;
(xvi) the redemption, repurchase or other acquisition or retirement
of Debt from Net Available Cash to the extent permitted under Section
4.12;
(xvii) payments of dividends, distributions or other amounts to fund
the payment by SFC of interest on the Convertible Notes;
(xviii) the payment of a dividend or distribution from time to time
to S&C Holdco 2, Inc. to fund the Permitted Dividend; and
(xix) payments of dividends, distributions or other amounts for the
redemption, repurchase or other acquisition or retirement of the
Convertible Notes to the extent permitted by Section 4.12;
54
provided, however, that no Default or Event of Default shall have occurred or be
continuing at the time of the payment or as a result of that payment.
In determining the aggregate amount of Restricted Payments
made subsequent to the date the Notes are first issued, amounts expended
pursuant to clauses (i), (vi), and (ix) shall be included in such calculation.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of such Restricted Payment of the asset(s)
or securities proposed to be paid, transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined
conclusively by the Board of Directors acting in good faith whose Board
Resolution with respect thereto shall be delivered to the Trustee.
(c) Notwithstanding the provisions of Section 4.10(a),
(i) during the Restricted Period, (x) the Company shall not make any
Restricted Payment except as permitted by Section 4.10(b), and (y) the
Company shall not declare or pay any dividend or make any other
distribution for the purpose of paying a dividend or distribution,
directly or indirectly, on shares of common stock of SFC other than the
Permitted Dividend; and
(ii) during the Interest Restricted Period, the Company shall not
permit any of its Restricted Subsidiaries to make any Restricted Payment
except as permitted by Section 4.10(b) (other than the Permitted Dividend
to the extent the gross proceeds from the offering of the Notes are
contributed to OpCo as a capital contribution or used to purchase
additional shares of common stock of OpCo) if such Restricted Payment
would reduce the sum determined under Section 4.10(a)(iii), with such
determination being subject to clause (y) in the definition of Available
Cash, unless, prior to such Restricted Payment, such Restricted Subsidiary
shall have paid to the Company, or reserved for payment to the Company, a
cash dividend or distribution equal to the cash interest payable on both
the Notes on the next Interest Payment Date and the Convertible Notes on
the next interest payment date therefor, and, after such cash interest has
been paid or reserved, any such Restricted Payment (A) must comply with
Section 4.14 if paid to an Affiliate of the Company (excluding dividends
paid by the Company) and (B) may not be used for the payment of any
dividend or distribution, directly or indirectly, on, or the repurchase
of, shares of common stock of SFC.
(d) During the Restricted Period, the Company shall not make
any investment described in clause (8) of the definition of Permitted
Investment.
Section 4.11. LIENS.
The Company shall not, and shall not permit any Subsidiary
Guarantor to, directly or indirectly, Incur or suffer to exist any Lien (other
than Permitted Liens) upon any of its property (including Capital Stock of a
Restricted Subsidiary), whether owned at the date the Notes are first issued or
thereafter acquired, or any interest therein or any income or profits therefrom,
unless it has made or will make effective provision whereby the Notes or any
applicable Subsidiary Guarantee will be secured by such Lien equally and ratably
with (or prior to) all other Debt of the Company or any Subsidiary Guarantor
secured by such Lien for so long as such other Debt is secured by such Lien;
provided, however, that if the Debt is Subordinated Debt, the Lien securing the
Debt will be subordinated and junior to the Lien securing the Notes or the
Subsidiary Guarantees, as the case may be, with the same relative priority as
such Debt has with respect to the Notes or the Subsidiary Guarantees.
Section 4.12. ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make an Asset Sale unless:
(i) the Company or that Restricted Subsidiary receives
consideration, including as to the value of all non-cash consideration, at
the time of the Asset Sale at least equal to the fair market value, as
55
determined in good faith by the Company's senior management or Board of
Directors, of the shares, property or assets being disposed of in the
Asset Sale;
(ii) at least 75% of the consideration received by the Company or
its Restricted Subsidiary, as the case may be, from the Asset Sale is in
the form of cash or Cash Equivalents; and
(iii) an amount equal to 100% of the Net Available Cash from the
Asset Sale is applied by the Company or the Restricted Subsidiary, as the
case may be,
(A) first, within one year from the receipt of that Net
Available Cash and solely at the Company's election or as required
by the terms of the Senior Credit Facilities either:
(1) to
(x) invest in or acquire any one or more Related Businesses,
(y) make capital expenditures or acquisitions of other
assets, in each case, used or useful in a Related
Business, or
(z) invest in or acquire properties or assets that replace
the properties and assets disposed of in the Asset Sale;
or
(2) to prepay, repay or purchase indebtedness under the
Senior Credit Facilities or pari passu Debt of a Wholly Owned
Restricted Subsidiary (other than Debt owed to the Company); and
(B) second, within 45 days after the later of the
application of Net Available Cash in accordance with clause (A) and
the date that is one year following the receipt of the Net Available
Cash, to the extent of the balance of that Net Available Cash after
application in accordance with clause (A), to make an offer to
purchase the Notes and other pari passu Debt, to the extent required
pursuant to the terms of that pari passu Debt, pro rata at 100% of
the tendered principal amount of the other pari passu Debt or 100%
of the accreted value of the pari passu Debt so tendered if that
pari passu Debt was issued at a discount, plus accrued and unpaid
interest, if any, on the Notes and the pari passu Debt to the date
of purchase.
(b) The balance of the Net Available Cash after application in
accordance with clauses (A) and (B) above may be used by the Company or its
Restricted Subsidiaries in any manner not otherwise prohibited by this
Indenture. Notwithstanding the foregoing provisions, the Company and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith until the aggregate Net Available Cash from all Asset Sales
following the date the Notes are first issued exceeds $15.0 million. Thereafter,
once the Company or its Restricted Subsidiaries accumulates an additional
aggregate $15.0 million of Net Available Cash from all Asset Sales, the Company
shall, after application of the additional aggregate $15.0 million of Net
Available Cash as provided in clause (A), make an offer for Notes pursuant to
this Section 4.12 by applying the Net Available Cash in excess of $15.0 million
as required pursuant to clause (a)(iii)(B) above.
(c) Solely for the purposes of clause (a)(ii) above of this
Section 4.12 and the definition of "Net Available Cash," the following will be
deemed to be cash:
(i) the assumption by the transferee in connection with the Asset
Sale pursuant to a customary novation agreement that releases the Company
or any of its Restricted Subsidiaries, as the case may be, from further
liability with respect to Debt of the Company or any Restricted
Subsidiary, other than contingent Debt and Debt that is by its terms
subordinated to the Notes or to any Subsidiary Guarantee, in
56
which case the Company will, without further action, be deemed to have
applied the assumed Debt in accordance with clause (a)(iii)(A) above, and
(ii) securities received by the Company or any Restricted Subsidiary
of the Company from the transferee that are converted within 60 days into
cash or Cash Equivalents.
(d) In the event of an Asset Sale that requires the purchase
of Notes pursuant to clause (a)(iii)(B) above of this Section 4.12, the Company
will be required to purchase Notes tendered pursuant to an offer by the Company
for the Notes in accordance with Section 3.09 hereof. If the aggregate purchase
price of the Notes tendered pursuant to the Asset Sale Offer is less than the
Net Available Cash allotted to the purchase of the Notes, the Company may use
the remaining Net Available Cash for any purpose not prohibited by this
Indenture, including the repurchase of any subordinated notes required upon an
Asset Sale by the indenture pursuant to which such subordinated notes were
issued or as a dividend or distribution for the repurchase of the Convertible
Notes required upon an Asset Sale by the Convertible Indenture. Upon the
consummation of the purchase of Notes properly tendered in response to the Asset
Sale Offer, the amount of Net Available Cash subject to future offers to
purchase will be deemed to be reset to zero.
(e) Notwithstanding anything in this Section 4.12 to the
contrary, to the extent an Asset Sale hereunder also constitutes an Asset Sale
under the OpCo Senior Indenture or the OpCo Subordinated Indenture, an Asset
Sale Offer is only required to be made out of the proceeds which remain after
application of the proceeds in accordance with the OpCo Senior Indenture and the
OpCo Subordinated Indenture and to the extent that such remaining proceeds may
be paid as a dividend or distribution to the Company without violation of state
surplus laws and the terms of the OpCo Senior Indenture, the OpCo Subordinated
Indenture and the Senior Credit Facilities.
(f) The Company shall comply with the requirements of Rule
14e-1 of the Exchange Act and, to the extent applicable, any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Indenture by virtue of complying with
those laws and regulations.
Section 4.13. RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any such Restricted
Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary;
(b) make any loans or advances to the Company or any other
Restricted Subsidiary; or
(c) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
The foregoing limitations will not apply to:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date the Notes are first issued, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive than
those contained in such agreements as in effect on the date the Notes are
first issued, as determined in good faith by the senior management or
Board of Directors of the Company;
(ii) any encumbrance or restriction existing under or by reason of
the Senior Credit Facilities, the Convertible Notes Indenture, the
Convertible Notes Guarantee, the OpCo Senior Indenture or the OpCo
Subordinated Indenture and any amendments, modifications, restatements,
renewals, increases,
57
supplements, refundings, replacements or refinancings thereof; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not materially
more restrictive, taken as a whole, with respect to dividend and other
payment restrictions than those contained in the Senior Credit Facilities,
the Convertible Notes Indenture, the Convertible Notes Guarantee, the OpCo
Senior Indenture or the OpCo Subordinated Indenture, as in effect on the
date the Notes are first issued;
(iii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Debt Incurred or
Preferred Stock issued by such Restricted Subsidiary on or prior to the
date on which such Restricted Subsidiary became a Restricted Subsidiary or
was acquired by the Company or any Restricted Subsidiary and outstanding
on such date, other than Debt Incurred or Preferred Stock issued 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
Restricted Subsidiary of the Company or was acquired by the Company or any
Restricted Subsidiary;
(iv) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement evidencing Debt Incurred or Preferred
Stock issued without violation of this Indenture or effecting a
refinancing of Debt Incurred or Preferred Stock issued pursuant to an
agreement referred to in clauses (i), (ii), (iii) or this clause (iv)
contained in any amendment to an agreement referred to in clauses (i),
(ii), (iii) or this clause (iv); provided, however, that the encumbrances
and restrictions with respect to such Restricted Subsidiary contained in
any such agreement, refinancing agreement or amendment, taken as a whole,
are not materially less favorable to the Holders of the Notes, as
determined in good faith by the senior management or Board of Directors of
the Company, than encumbrances and restrictions with respect to that
Restricted Subsidiary contained in agreements in effect at, or entered
into on, the date the Notes are first issued;
(v) in the case of clause (c) of the first paragraph of this Section
4.13, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license, conveyance or contract or similar property or asset
or the assignment of any such lease, license or other contract;
(B) by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets
of the Company or any Restricted Subsidiary not otherwise prohibited
by this Indenture;
(C) that is included in a licensing agreement to the extent
such restrictions limit the transfer of the property subject to such
licensing agreement;
(D) arising or agreed to in the ordinary course of business
and that does not, individually or in the aggregate, detract from
the value of property or assets of the Company or any of its
Subsidiaries in any manner material to the Company or any such
Restricted Subsidiary as determined in good faith by senior
management or the Board of Directors of the Company; or
(E) contained in security agreements, mortgages or similar
documents securing Debt of a Restricted Subsidiary incurred in
accordance with this Indenture to the extent those encumbrances or
restrictions restrict the transfer of the property subject to such
security agreements;
(vi) any restriction with respect to a Restricted Subsidiary or any
of its properties or assets imposed pursuant to an agreement entered into
for the sale or disposition of all or substantially all the
58
Capital Stock or assets of that Restricted Subsidiary (whether by stock
sale, asset sale, merger, consolidation or otherwise) pending the closing
of such sale or disposition or any portion of the purchase price from an
Asset Sale placed in escrow, whether as a reserve for adjustment of the
purchase price, for satisfaction of indemnities in respect of such Asset
Sale;
(vii) encumbrances or restrictions arising or existing by reason of
applicable law, regulation or order;
(viii) any encumbrance or restriction under Capitalized Lease
Obligations and purchase money obligations for property leased or acquired
in the ordinary course of business that impose encumbrances or
restrictions of the nature described in clause (c) of the first paragraph
of this Section 4.13 on the property so leased or acquired;
(ix) customary provisions with respect to the distribution of assets
or property in joint venture agreements; or
(x) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.14. AFFILIATE TRANSACTIONS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions, including, without
limitation, the purchase, sale, lease, contribution or exchange of any property
or the rendering of any service, with any of its or any of its Restricted
Subsidiaries' Affiliates (excluding transactions between the Company and a
Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries) (an "AFFILIATE TRANSACTION"), other than Affiliate Transactions on
terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction on an arm's-length basis from a Person that
is not an Affiliate; provided, however, that for a transaction or series of
related transactions involving value of $10.0 million or more, such
determination will be made in good faith by a majority of members of the Board
of Directors of the Company and by a majority of the disinterested members of
the Board of Directors of the Company, if any; provided, further, however, that
for a transaction or series of related transactions involving value of $25.0
million or more, the Company obtains a written opinion from an Independent
Financial Advisor to the effect that the consideration to be paid or received in
connection with such transaction or series of related transactions is fair, from
a financial point of view, to the Company or such Restricted Subsidiary.
The foregoing restrictions will not apply to:
(a) reasonable and customary directors' fees, indemnification
and similar arrangements and payments thereunder;
(b) any obligations of the Company under any employment,
noncompetition or confidentiality agreement with any officer or employee of the
Company, as in effect on the date the Notes are first issued;
(c) any Restricted Payment permitted to be made pursuant to
Section 4.10 other than Restricted Payments to Affiliates during the Interest
Restricted Period as provided in Section 4.10(c)(ii);
(d) 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 and other fair
and reasonable fees, compensation, benefits and indemnities paid or entered into
by the Company or its Restricted Subsidiaries to or with officers, directors or
employees of the Company and its Restricted Subsidiaries approved by the Board
of Directors of the Company;
59
(e) loans or advances to officers, directors or employees in
the ordinary course of business of the Company or any of its Restricted
Subsidiaries; provided that such loans or advances do not exceed $2.0 million
outstanding at any one time;
(f) payments (including, without limitation, fees payable to
and expenses of Xxxxx Muse and ConAgra Foods) made pursuant to the Transaction
Documents as in effect on the date the Notes are first issued or any amendments
thereto; provided that the terms, taken as a whole, of any such amendment of any
of the foregoing agreements are not otherwise disadvantageous to the Holders of
the Notes in any material respect;
(g) the existence of, or the performance by the Company or any
of its Restricted Subsidiaries of its obligations under the terms of, any
stockholders agreement, including any registration rights agreement or purchase
agreement related thereto, to which it is a party as of the date the Notes are
first issued and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of obligations under, any future amendment to
any such existing agreement or under any similar agreement entered into after
the date the Notes are first issued shall only be permitted by this clause (g)
to the extent that the terms, taken as a whole, of any such amendment or new
agreement are not otherwise disadvantageous to the Holders of the Notes in any
material respect;
(h) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the ordinary course
of business and otherwise in compliance with the terms of this Indenture which
are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the senior management and of the Board of Directors of the
Company, or are on terms, taken as a whole, at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party;
(i) any agreement as in effect as of the date the Notes are
first issued or any amendment thereto, so long as any such amendment, taken as a
whole, is not disadvantageous to the Holders of the Notes in any material
respect, or any transaction contemplated thereby;
(j) any contributions of capital to one or more Wholly Owned
Restricted Subsidiaries of the Company or any purchases of Equity Interests of
the Company by its Affiliates; and
(k) any purchases by the Company's Affiliates of Debt of the
Company or any of its Restricted Subsidiaries offered to Persons who are not
Affiliates; provided that such purchases must be on the same terms and
conditions as offered to Persons who are not Affiliates.
Section 4.15. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Subsidiary
Guarantor to, enter into any Sale and Leaseback Transaction with respect to any
Property unless:
(a) the entity entering into the Sale and Leaseback
Transaction would be entitled to:
(i) Incur Debt in an amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction pursuant to Section 4.09;
and
(ii) create a Lien on such property securing such Attributable Debt
without also securing the Notes or the applicable Subsidiary Guarantee
pursuant to Section 4.11; and
(b) such Sale and Leaseback Transaction is effected in
compliance with Section 4.12.
Section 4.16. ISSUANCE OR SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not, directly or indirectly:
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(a) sell or otherwise dispose of any shares of Capital Stock
of a Restricted Subsidiary (or permit any Restricted Subsidiary to do the same);
or
(b) permit any Restricted Subsidiary to, directly or
indirectly, issue or sell or otherwise dispose of any shares of its Capital
Stock;
other than, in the case of either (a) or (b):
(i) directors' qualifying shares,
(ii) to the Company or a Wholly Owned Restricted Subsidiary, or
(iii) a disposition of 100% of the shares of Capital Stock of such
Restricted Subsidiary; provided, however, that, in the case of this clause
(iii),
(A) such disposition is effected in compliance with Section
4.12; and
(B) upon consummation of such disposition and execution and
delivery of a supplemental indenture, such Restricted Subsidiary
shall be released from any Subsidiary Guarantee previously made by
such Restricted Subsidiary; and
(iv) the issuance by a Restricted Subsidiary of Preferred Stock
permitted under paragraph (a) of Section 4.09.
Section 4.17. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Company's Board of Directors may designate any of its
Subsidiaries, including any newly formed Subsidiary or any Person that will
become a Subsidiary by way of acquisition, to be an Unrestricted Subsidiary if
that designation would not cause a Default. If any of the Company's Restricted
Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the newly designated Unrestricted Subsidiary will be
deemed to be an Investment made as of the time of that designation and will
either reduce the amount available for Restricted Payments under Section 4.10(a)
or 4.10(b) or reduce the amount available for future Investments under one or
more clauses of the definition of "Permitted Investments," as the Company
determines in its sole discretion. The designation of such a Subsidiary or
Person as an "Unrestricted Subsidiary" will only be permitted if, in the case of
a Restricted Subsidiary, the deemed Investment would be permitted at the time
the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in
any case, if that Subsidiary or Person otherwise satisfies the requirements set
forth in the definition of "Unrestricted Subsidiary." The Company's Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that designation would not cause a Default.
Section 4.18. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase all or any part (equal
to $1.00 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "CHANGE OF CONTROL OFFER") at a purchase price, in
cash (the "CHANGE OF CONTROL PURCHASE PRICE"), equal to (x) 102% of the
aggregate principal amount of Notes repurchased if the Change of Control occurs
prior to the earlier to occur of (A) September 11, 2006 and (B) the Company's
satisfaction in full of its obligation to repurchase Notes out of Net Offering
Proceeds pursuant to Section 4.19 or (y) 101% of the aggregate principal amount
of the Notes repurchased if the Change of Control occurs on or after the earlier
to occur of (A) September 11, 2006 and (B) the Company's satisfaction in full of
its obligation to repurchase the Notes out of Net Offering Proceeds pursuant to
Section 4.19, in each case, plus accrued and unpaid interest and Special
Interest, if any, on the Notes repurchased, to, but excluding, the Change of
Control Payment Date (as defined below) (subject
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to the right of Holders on the relevant record date to receive interest to, but
excluding, the Change of Control Payment Date (as defined below)).
Within 90 days following any Change of Control, unless the
Company has mailed a redemption notice with respect to all of the outstanding
Notes in accordance with Section 3.07, the Company shall:
(i) send, by first-class mail, with a copy to the Trustee, to each
Holder, at such Holder's address appearing in the securities register
maintained in respect of the Notes by the Registrar (the "SECURITY
REGISTER"), a notice stating:
(A) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 4.18 and that
all Notes timely tendered will be accepted for payment;
(B) the Change of Control Purchase Price and the purchase
date, which shall be, subject to any contrary requirements of
applicable law, a Business Day no earlier than 30 days and no later
than 60 days from the date such notice is mailed (the "CHANGE OF
CONTROL PAYMENT DATE");
(C) the circumstances and relevant facts regarding the Change
of Control; and
(D) the procedures that Holders must follow in order to tender
their Notes (or portions thereof) for payment, and the procedures
that Holders must follow in order to withdraw an election to tender
Notes (or portions thereof) for payment.
The Company will comply, to the extent applicable, with the
requirements of Rule 14(e)-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of the covenant
described hereunder or other provisions of this Indenture, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the covenant described hereunder
by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes properly
tendered; and
(iii) deliver or cause to be delivered to the Trustee or Paying
Agent, on its behalf, the Notes properly accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions of Notes being tendered and purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new note will be in a
principal amount of $1.00 or an integral multiple thereof.
(c) If the Change of Control Payment Date is on or after a
Regular Record Date and on or before the related Interest Payment Date, any
accrued and unpaid interest as of the Change of Control Payment Date and
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Special Interest, if any, will be paid to the Person in whose name a Note is
registered, at the close of business on such Regular Record Date, and no
additional interest will be payable to Holders who tender pursuant to the Change
of Control Offer.
(d) The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders of the Notes to require that the
Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction that does not involve a Change of
Control.
(e) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes a Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer.
Section 4.19. REPURCHASE AT THE OPTION OF HOLDERS UPON AN INITIAL PUBLIC
OFFERING.
(a) Each Holder shall have the right to require the Company to
repurchase all or any part (equal to $1.00 or an integral multiple thereof) of
such Holder's Notes pursuant to each offer described below (an "IPO REDEMPTION
OFFER") at the purchase price (expressed as percentages of principal amount), in
cash set forth below (the "IPO REDEMPTION PURCHASE PRICE"), plus accrued and
unpaid interest and Special Interest, if any, on the Notes repurchased, to, but
excluding, the IPO Redemption Payment Date (as defined below) (subject to the
right of Holders on the relevant record date to receive interest to, but
excluding, the IPO Redemption Payment Date (as defined below)) upon the
completion of an Initial Public Offering and, if the Net IPO Proceeds are
insufficient to permit the repurchase of the IPO Redemption Amount, then of each
subsequent underwritten public offering of common stock of SFC (each, a
"SUBSEQUENT OFFERING"), during the periods indicated below to the extent of the
Net Offering Proceeds therefrom:
Public Offering Completion Date Percentage
------------------------------ ----------
March 11, 2005 - September 10, 2006....................... 102.00%
September 11, 2006 - March 10, 2008....................... 105.50%
March 11, 2008 - March 10, 2009........................... 102.75%
March 11, 2009 and thereafter............................. 100.00%
If the Net IPO Proceeds are insufficient to permit the
repurchase of the IPO Redemption Amount, the Company shall be required to make
an IPO Redemption Offer with the Net Offering Proceeds of one or more Subsequent
Offerings until the aggregate amount of all IPO Redemption Offers equals the IPO
Redemption Amount. If the Net Offering Proceeds equal or exceed the aggregate
amount of Notes tendered in the IPO Redemption Offer, the Company will purchase
all such Notes tendered. If the aggregate principal amount of Notes surrendered
by Holders in an IPO Redemption Offer exceeds the Net Offering Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis (which such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1.00 or integral multiples thereof shall be purchased).
Within 90 days following an Initial Public Offering and, if
applicable, each Subsequent Offering, unless the Company has mailed a redemption
notice with respect to all of the outstanding Notes in accordance with Section
3.07, the Company shall:
(i) send, by first-class mail, with a copy to the Trustee, to each
Holder, at such Holder's address appearing in the Security Register, a
notice stating:
(A) that an Initial Public Offering or, if applicable,
each Subsequent Offering has been completed, the amount of Net
IPO Proceeds and that an IPO Redemption Offer is being made
pursuant to this Section 4.19;
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(B) the IPO Redemption Purchase Price and the purchase
date, which shall be, subject to any contrary requirements of
applicable law, a Business Day no earlier than 30 days and no
later than 60 days from the date such notice is mailed (the
"IPO REDEMPTION PAYMENT DATE"); and
(C) the procedures that Holders must follow in order to
tender their Notes (or portions thereof) for payment and the
procedures that Holders must follow in order to withdraw an
election to tender Notes (or portions thereof) for payment;
and
(D) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Net Offering Proceeds, the
Company shall select the Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1.00 or
integral multiples thereof shall be purchased).
The Company will comply, to the extent applicable, with the
requirements of Rule 14(e)-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of the
foregoing. To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.19 or other provisions of this
Indenture, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
covenant described hereunder by virtue of such conflict.
(b) On each IPO Redemption Payment Date, the Company shall, to
the extent lawful:
(i) accept for payment, on a pro rata basis to the extent of the Net
Offering Proceeds of the related offering, all Notes or portions of Notes
properly tendered pursuant to the IPO Redemption Offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate
IPO Redemption Purchase Price payable pursuant to this Section 4.19; and
(iii) deliver or cause to be delivered to the Trustee or Paying
Agent, on its behalf, the Notes properly accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions of Notes being tendered and purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered an amount equal to the IPO Redemption Purchase Price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the
Trustee will promptly authenticate and mail (or cause to be transferred by
book-entry) to each Holder a new note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each new
note will be in a principal amount of $1.00 or an integral multiple thereof.
(c) If an IPO Redemption Payment Date is on or after a Regular
Record Date and on or before the related Interest Payment Date, any accrued and
unpaid interest and Special Interest, if any, will be paid to the Person in
whose name a Note is registered, at the close of business on such Regular Record
Date, and no additional interest will be payable to Holders who tender pursuant
to the related IPO Redemption Offer.
(d) The provisions described above that require the Company to
make an IPO Redemption Offer following an Initial Public Offering will be
applicable whether or not any other provisions of this Indenture are applicable.
(e) The Company shall surrender any Notes purchased by the
Company pursuant to Article 3 and this Article 4 to the Trustee for cancellation
in accordance with Section 2.11. Any Notes surrendered to the Trustee for
cancellation may not be reissued or resold by SFC and shall be cancelled
promptly in accordance with Section 2.11. Except during the Restricted Period,
the Company may repurchase Notes in open market and negotiated transactions.
64
Section 4.20. BUSINESS ACTIVITIES.
The Company shall not, directly or indirectly, engage in any
business other than the holding of Capital Stock of OpCo. The Company shall not
permit any Restricted Subsidiary to, directly or indirectly, engage in any
business other than a Related Business.
Section 4.21. GUARANTEES OF DEBT BY THE COMPANY AND RESTRICTED SUBSIDIARIES.
The Company shall not permit any Restricted Subsidiary to
guarantee the payment of any of the Company's Debt or any of the Parent's Debt
unless:
(a) if such guarantee is of the Company's Debt, such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a guarantee of payment of the
Company's obligations under this Indenture and the Notes by such Restricted
Subsidiary as set forth in Article 10; except that if such Debt is by its
express terms subordinated in right of payment to the Notes, any such guarantee
of such Restricted Subsidiary with respect to such Debt will be subordinated in
right of payment to such Subsidiary Guarantee with respect to the Notes
substantially to the same extent as such Debt is subordinated to the Notes;
(b) if such guarantee is of the Parent's Debt, such Restricted
Subsidiary shall simultaneously execute and deliver a supplemental indenture to
this Indenture providing for a guarantee of payment of the Company's obligations
under this Indenture and the Notes by such Restricted Subsidiary as set forth in
Article 10 and such guarantee of the Parent Debt will be subordinated to the
Subsidiary Guarantee of the payment of the Company's obligations under this
Indenture and the Notes to the same extent as the Convertible Notes Guarantee is
subordinated to the Company's obligations under this Indenture and the Notes;
(c) in the case of each of clauses (a) and (b) above, such
Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee of the Notes; and
(d) such Restricted Subsidiary shall deliver to the Trustee an
Opinion of Counsel to the effect that:
(i) such Subsidiary Guarantee of the Notes has been duly executed
and authorized; and
(ii) such Subsidiary Guarantee of the Notes constitutes a valid,
binding and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to
fraudulent transfers) and except insofar as enforcement thereof is subject
to general principles of equity.
(e) The Company shall not guarantee the payment of any
Parent's Debt unless such guarantee is subordinate in right of payment to the
Company's obligations under this Indenture and the Notes.
In addition, any Subsidiary Guarantee by a Restricted
Subsidiary will be automatically and unconditionally released and discharged if
the Company designates such Restricted Subsidiary as an Unrestricted Subsidiary
in accordance with this Indenture.
Section 4.22. SELLER NOTE.
The Company shall not, and shall not permit any Restricted
Subsidiary to, consolidate with or merge with or into the issuer of or other
obligor under (or any guarantor of) the Seller Note or otherwise assume,
directly or indirectly, the Debt represented by the Seller Note, unless
immediately after giving pro forma effect to such consolidation, merger or
assumption:
(a) no Default or Event of Default shall have occurred and be
continuing;
65
(b) if the Company is engaging in such consolidation, merger
or assumption, the Company would be able to Incur an additional $1.00 of Debt
under paragraph (a) of Section 4.09; and
(c) if the Company or a Restricted Subsidiary is engaging in
such consolidation, merger or assumption, the assumption of the Seller Note is
treated as a Restricted Payment in an amount equal to the aggregate principal
amount outstanding of the Seller Note at the time of such assumption; provided,
however, that if such assumption is made by merger or consolidation with the
obligor under the Seller Note, the aggregate principal amount outstanding of the
Seller Note at the time of such assumption shall be excluded from the
calculation of the value of the assets being contributed as part of such merger
or consolidation for purposes of paragraph (a)(iii)(B)(x) or (a)(iii)(D) of
Section 4.10.
Section 4.23. SFC COVENANTS.
(a) SFC shall not permit the underwritten public offering of
common stock of SFC by parties other than SFC until the aggregate amount of all
IPO Redemption Offers at least equals the IPO Redemption Amount.
(b) On the closing date for the Initial Public Offering and,
if applicable, each Subsequent Offering, SFC shall directly or indirectly
contribute to the Company (by way of capital contribution or subscription for
additional common stock of the Company) the Net Offering Proceeds of such public
offering until such time as directly or indirectly the aggregate amount of all
IPO Redemption Offers at least equals the IPO Redemption Amount.
(c) During the Restricted Period, SFC shall cause the Company
to be a Wholly Owned Subsidiary of SFC; provided that the Company may
consolidate or merge with or into SFC or any Wholly Owned Subsidiary of SFC if
such merger or consolidation does not violate any other provision of this
Indenture.
(d) During the Restricted Period, SFC shall not pay any
dividends on its common stock other than, from time to time, the Permitted
Dividend plus an amount equal to the gross proceeds from the offering of the
Initial Convertible Notes plus the amount of cash on hand of SFC at the date of
the issuance of the Initial Notes minus all fees and expenses related to the
offering of the Initial Notes and Initial Convertible Notes.
Section 4.24. OPCO OWNERSHIP .
The Company shall maintain OpCo as a direct Wholly Owned
Restricted Subsidiary and shall directly own all of the Capital Stock of OpCo.
ARTICLE 5.
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS.
The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets determined on a consolidated basis to another Person or adopt a plan of
liquidation unless:
(a) either
(i) the Company is the Surviving Person; or
(ii) the Person, if other than the Company, formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company have been
transferred, will be a corporation, partnership or limited liability
company
66
organized and existing under the laws of the United States or any State of
the United States or the District of Columbia; provided, however, that if
the Person formed by such consolidation or into which the Company is
merged or the Person that acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety is a
partnership or limited liability company, the Company or such Surviving
Person shall cause a Restricted Subsidiary that is a corporation to become
a co-obligor on the Notes;
(b) such Surviving Person, if other than the Company, assumes
all of the obligations of the Company under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee;
(c) immediately after giving effect to that transaction and
the use of the proceeds from that transaction, on a pro forma basis, including
giving effect to any Debt Incurred or anticipated to be Incurred in connection
with that transaction and the use of the proceeds from that transaction,
(i) no Default or Event of Default shall have occurred and be
continuing; and
(ii) except in the case of a consolidation or merger of the Company
with or into a Wholly Owned Subsidiary Guarantor or a sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the Company's assets to a Wholly-Owned Subsidiary Guarantor,
immediately after giving effect to such transaction, either (A) (1) such
Surviving Person would not be obligated on any additional Debt as a result
of such transaction if the transaction occurs during the Restricted Period
or (2) such Surviving Person shall be able to Incur $1.00 of additional
Debt under paragraph (a) of Section 4.09 if the transaction occurs after
the Restricted Period or (B) if the transaction occurs during the
Restricted Period, the Consolidated Coverage Ratio of the Surviving Person
would not be less than the Consolidated Coverage Ratio of the Company
immediately prior to the transaction; and
(d) the Company delivers to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer complies
with this Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties and assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties or assets of the Company, will be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clauses (b) and (c),
(A) any Restricted Subsidiary may consolidate with,
merge into or transfer all or part of its properties and
assets to the Company, and
(B) the Company may merge with one of its Affiliates
that is organized solely for the purpose of reorganizing the
Company in another jurisdiction in the United States to
realize tax or other benefits.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
The Surviving Person shall 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) a sale, transfer, assignment, conveyance or other
disposition (unless such sale, transfer, assignment, conveyance or other
disposition is of all the assets of the Company as an entirety or virtually as
an entirety), or
(b) a lease,
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shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
Each of the following is an "EVENT OF DEFAULT:"
(i) the failure to pay interest including Special Interest, if any,
on the Notes when that interest or Special Interest becomes due and
payable and the Default continues for 30 days;
(ii) the failure to pay principal of or premium, if any, on the
Notes when that principal or premium, if any, becomes due and payable, at
maturity, upon redemption or otherwise;
(iii) the failure to observe or perform any other covenant or
agreement contained in the Notes, the Guarantees or this Indenture, which
failure continues for a period of 60 days after the Company receives a
written notice specifying the default from the Trustee or Holders of at
least 25% in aggregate principal amount of outstanding Notes;
(iv) the failure by the Company or any Restricted Subsidiary to pay
Debt at the final stated maturity, after giving effect to any extensions,
or upon the acceleration of the final stated maturity of that Debt, if the
aggregate principal amount of that Debt, together with the aggregate
principal amount of any other such Debt in default for failure to pay
principal at the final stated maturity, after giving effect to any
extensions, or upon the acceleration of the final stated maturity of that
Debt, aggregates $20.0 million or more at any time and such default shall
not have been cured or such acceleration shall not have been rescinded
after a 10-day period;
(v) one or more judgments in an aggregate amount in excess of $20.0
million, which judgments are not covered by insurance, or if covered by
insurance, as to which the insurer has disclaimed coverage, being rendered
against SFC, the Company or any of its Restricted Subsidiaries and such
judgment or judgments remain undischarged, unwaived or unstayed for a
period of 60 days after such judgment or judgments become final and
nonappealable;
(vi) SFC, the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against
it in an involuntary case;
(C) consents to the appointment of a custodian of it or
for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability to pay its debts as
they become due;
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(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against SFC, the Company or any of its
Significant Subsidiaries in an involuntary case; or
(B) appoints a custodian of SFC, the Company or any of
its Significant Subsidiaries or for all or substantially all
of the property of the Company or any of its Significant
Subsidiaries; or
(C) orders the liquidation of SFC, the Company or any of
its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; and
(viii) any Guarantee of SFC or the Guarantee of a Significant
Subsidiary (i) ceases to be in full force and effect, (ii) is declared to
be null and void and unenforceable by a judicial determination or (iii) is
found to be invalid by a judicial determination, or any Guarantor denies
its obligations under its Guarantee (in each case, other than by reason of
release of a Guarantor in accordance with the terms of this Indenture).
Section 6.02. ACCELERATION.
If any Event of Default (other than those of the type
described in Section 6.01(vi) or (vii)) occurs and is continuing, the Trustee
may, and the Trustee upon the request of Holders of 25% in principal amount of
the outstanding Notes will, or the Holders of at least 25% in principal amount
of outstanding Notes shall, declare the principal of all the Notes, together
with all accrued and unpaid interest, premium, if any, and Special Interest, if
any, to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that such notice is a notice of
acceleration (the "ACCELERATION NOTICE"), and the same shall become immediately
due and payable.
In the case of an Event of Default specified in Section (vi)
or (vii) of Section 6.01 hereof, such amount with respect to all the Notes will
become due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of the Notes. Holders may not enforce this
Indenture or the Notes except as provided in this Indenture.
At any time after a declaration of acceleration with respect
to the Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel that declaration
and its consequences if:
(a) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction;
(b) all existing Defaults and Events of Default have been
cured or waived except nonpayment of principal of or interest on the Notes that
has become due solely by such declaration of acceleration;
(c) to the extent the payment of such interest is lawful,
interest (at the same rate specified in the Notes) on overdue installments of
interest and overdue payments of principal which has become due otherwise than
by such declaration of acceleration has been paid;
(d) the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances; and
(e) in the event of the cure or waiver of an Event of Default
of the type described in Section 6.01(vi) or (vii), the Trustee has received an
Officers' Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.
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In the case of an Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Company or on the Company's
behalf with the intention of avoiding payment of the premium that the Company
would have been required to pay if the Company had then elected to redeem the
Notes pursuant to Section 3.07 hereof, an equivalent premium will also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
Section 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Special Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Notes may
waive by consent (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Notes) any then
existing or potential Default, and its consequences, except a default in the
payment of the principal of or interest on any Notes. In the event of any Event
of Default specified in clause (iv) of the first paragraph of Section 6.01, such
Event of Default and all consequences of that Event of Default, including
without limitation any acceleration or resulting payment default, will be
annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders of the Notes, if within 60 days after the Event of
Default arose:
(a) the Debt that is the basis for the Event of Default has
been discharged;
(b) the holders of that Debt have rescinded or waived the
acceleration, notice or action, as the case may be, giving rise to the Event of
Default; or
(c) if the default that is the basis for such Event of Default
has been cured.
When a Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
Section 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01, Section 7.02(f) (including the
Trustee's receipt of the security or indemnification described therein) and
Section 7.07, in case an Event of Default shall occur and be continuing, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes.
Section 6.06. LIMITATION ON SUITS.
No Holder will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default,
(b) Holders of at least 25% in aggregate principal amount of
the Notes then outstanding have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as trustee, and
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(c) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days.
A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
Section 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture
(including, without limitation, Section 6.06), the right of any Holder to
receive payment of principal, premium, if any, and interest and Special
Interest, if any, on the Notes held by such Holder, on or after the respective
due dates expressed in the Notes (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01 (i) or (ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest and Special Interest, if
any, then due and owing (together with interest on overdue principal and, to the
extent lawful, interest) and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that any such compensation, expenses and
advances of the Trustee and its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, moneys, securities and
any other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or any plan of reorganization or arrangement
or otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
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Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest and Special Interest, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest and Special
Interest, if any, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
the Company, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default which the Trustee has, or is deemed
to have, notice hereunder has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in its exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee
need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein or otherwise verify the contents thereof).
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts;
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(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05
hereof; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any
liability.
(d) Whether or not therein expressly so provided, 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) Except for information provided by the Trustee concerning
the Trustee, the Trustee shall have no responsibility for any information in any
prospectus or other disclosure material distributed with respect to the Notes.
Section 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon 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 any such
document. Any facsimile signature of any Person on a document required or
permitted in this Indenture to be delivered to the Trustee shall constitute a
legal, valid and binding execution thereof by such Person.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and 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 that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(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 unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee from the Company or the
Holders of 25% in aggregate principal amount of the outstanding Notes, and such
notice references the specific Default or Event of Default, the Notes and this
Indenture and, in the absence of any such notice, the Trustee may conclusively
assume that no such Default or Event of Default exists.
(h) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
(i) The Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder.
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(j) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
(k) The Trustee's immunities and protections from liability
and its right to indemnification in connection with the performance of its
duties under this Indenture shall extend to the Trustee's officers, directors,
agents, attorneys and employees. Such immunities and protections and right to
indemnification, together with the Trustee's right to compensation, shall
survive the Trustee's resignation or removal, the defeasance or discharge of
this Indenture and final payment of the Notes.
(l) The right of the Trustee to take the actions permitted by
this Indenture shall not be construed as an obligation or duty to do so.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs unless such Default
or Event of Default has since been cured. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, or interest or
Special Interest, if any, on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange and any delisting thereof.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall agree in writing. The
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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 promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee (in its capacity as
Trustee) or any predecessor Trustee (in its capacity as Trustee) against any and
all losses, claims, damages, penalties, fines, liabilities or expenses,
including incidental and out-of-pocket expenses and reasonable attorneys fees
("LOSSES") incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or 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 separate counsel if the Trustee
has been reasonably advised by counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it is
advisable for the Trustee to engage separate counsel, and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss incurred by the Trustee through the Trustee's own willful misconduct, gross
negligence or bad faith.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture, the resignation or
removal of the Trustee and payment in full of the Notes.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal,
premium, if any, and interest and Special Interest, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(vi) or (vii) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time upon 30 days
prior notice to the Company and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in principal amount of the
then outstanding Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
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successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
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 at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of 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 the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking association, the successor corporation or banking
association without any further act shall, if such successor corporation or
banking association is otherwise eligible hereunder, be the successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
Person organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 (or a wholly-owned subsidiary of a bank or trust company, or
of a bank holding company, the principal subsidiary of which is a bank or trust
company having a combined capital and surplus of at least $50,000,000) as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
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Section 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE") and each Guarantor shall be released from all of its obligations
under its Guarantee. For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a), (b), (c) and (d) below, and to have satisfied all its other
obligations under the Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, or interest and Special Interest, if any, on
such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Sections 4.01 and 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this Article 8. If the
Company exercises under Section 8.01 hereof the option applicable to this
Section 8.02, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, payment of the Notes may not be accelerated because of an Event of
Default. Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.08 through 4.22
hereof, and the operation of Section 5.01(c) hereof, with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "COVENANT DEFEASANCE") and each Guarantor shall be
released from all of its obligations under its Guarantee with respect to such
covenants in connection with such outstanding Notes and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, 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 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. If the Company exercises under Section 8.01 hereof the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, payment of the Notes may not be
accelerated because of an Event of Default specified in clause (iii) (with
respect to the covenants contained in Sections 4.08 through 4.22 hereof), (iv),
(v), (vi), (vii) and (viii) of Section 6.01 (but in the case of Sections (vi) or
(vii), with respect to Significant Subsidiaries only) or because of the
Company's failure to comply with clause (c) of Section 5.01.
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes.
The Legal Defeasance or Covenant Defeasance may be exercised
only if:
(a) the Company irrevocably deposits with the Trustee, in
trust (the "DEFEASANCE TRUST"), for the benefit of the Holders of the Notes,
cash in U.S. dollars, non-callable U.S. Government Securities, or a combination
of cash in U.S. dollars and non-callable U.S. Government Securities, sufficient,
in the opinion of a firm of
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independent public accountants of recognized international standing, to pay the
principal, premium, if any, and interest and Special Interest, if any, on the
outstanding Notes on the Stated Maturity or on the next available redemption
date, as the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to that particular redemption date;
(b) in the case of Legal Defeasance, the Company delivers to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel will confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of Covenant Defeasance, the Company delivers
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Event of Default under Sections 6.01(vi) or (vii) shall
have occurred at any time in the period ending on the 91st day after the cash
and/or non-callable U.S. Government Securities have been deposited in the
defeasance trust;
(e) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company delivers to the Trustee an Opinion of Counsel,
subject to customary exceptions, to the effect that on the 91st day following
the deposit, the defeasance trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws generally
affecting creditors' rights;
(g) the Company delivers to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Notes over the Company's other creditors with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
(i) Notwithstanding the foregoing, the Opinion of Counsel
required by clause (b) above with respect to a Legal Defeasance need not be
delivered if all Notes not theretofore delivered to the Trustee for cancellation
(A) have become due and payable, (B) will become due and payable on the maturity
date within one year or (C) as to which a redemption notice has been given
calling the Notes for redemption within one year, under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Section 8.05. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all cash and non-callable U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of all sums due and
to become due thereon in respect of principal, premium, if any, and
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interest and Special Interest, if any, but such cash and securities need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any cash or non-callable U.S. Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent certified public accountants of recognized
international standing expressed in a written certification thereof delivered to
the Trustee (which may be the certification delivered under Section 8.04(a)
hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. REPAYMENT TO COMPANY.
Any cash or non-callable U.S. Government Securities deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal, premium, if any, or interest or Special Interest,
if any, on any Note and remaining unclaimed for two years after such principal,
premium, if any, or interest or Special Interest, if any, has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.
Section 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or
non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such cash and securities in accordance with Section 8.02
or 8.03 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest or Special
Interest, if any, on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders to receive such
payment from the cash and securities held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency;
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(b) provide for the assumption by a successor corporation,
partnership or limited liability company of the obligations of the Company under
this Indenture;
(c) 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 described in Section 163(f)(2)(B) of the
Code);
(d) add additional Guarantees or additional obligors with
respect to the Notes;
(e) secure the Notes;
(f) add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Company;
(g) make any other change that does not adversely affect the
legal rights hereunder of any such Holder; or
(h) make any change to comply with any requirement of the
Commission in order to effect or maintain the qualification of this Indenture
under the TIA.
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture and the Notes with the
consent of the Holders of a majority in principal amount of the Notes then
outstanding voting as a single class (including consents obtained in connection
with a purchase of or tender offer or exchange offer for the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (except a continuing Default or Event of Default in the payment of
principal, premium, if any, or interest or Special Interest, if any, on the
Notes) or compliance with any provision of this Indenture or the Notes (except
for certain covenants and provisions of this Indenture which cannot be amended
without the consent of each Holder) may be waived with the consent of the
Holders of a majority in principal amount of the Notes then outstanding voting
as a single class (including consents obtained in connection with a purchase of
or tender offer or exchange offer for the Notes).
Without the consent of each Holder, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Notes;
(c) reduce the principal of or change the fixed maturity of
any Notes, or change the date on which any Notes may be subject to redemption or
repurchase, or reduce the redemption or repurchase price for those Notes
(except, in the case of repurchases, as would otherwise be permitted under
clauses (g) and (j) hereof);
(d) make any Note payable in money other than that stated in
the Note and this Indenture;
(e) impair the right of any Holder to receive payment of
principal, premium, interest and Special Interest, if any, on that Holder's
Notes on or after the due dates for those payments, or to bring suit to enforce
that payment on or with respect to such Holder's Notes or any Guarantee;
(f) modify Section 6.04 hereof;
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(g) after the Company's obligation to purchase the notes
arises under Section 4.18 hereof, amend, modify or change the obligation of the
Company to make or consummate a Change of Control Offer or waive any default in
the performance of that Change of Control Offer or modify any of the provisions
or definitions with respect to any such offer;
(h) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture;
(i) subordinate the Notes or any Guarantee to any other
obligation of the Company or the applicable Guarantor;
(j) at any time after the Company is obligated to make an
Asset Sale Offer pursuant to Section 4.12 hereof, change the time at which such
offer to purchase must be made or at which the Notes must be repurchased
pursuant thereto; or
(k) make any change in any Guarantee that would adversely
affect the Holders of the Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
supplemental indenture. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holder of each Note
affected thereby to such Holder's address appearing in the Security Register a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion thereof that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note or portion thereof if the Trustee receives written notice
of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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Section 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it, which approval shall be evidenced by the delivery to
the Trustee of a Board Resolution from the Company. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon an Officer's
Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture and that
such amended or supplemental indenture is the legal, valid and binding
obligations of the Company and the Guarantors enforceable against each of them
it in accordance with its terms, subject to customary exceptions and that such
amended or supplemental indenture complies with the provisions hereof (including
Section 9.03).
ARTICLE 10.
GUARANTEES
Section 10.01. GUARANTEE.
Subject to this Article 10, each of the Guarantors hereby
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns that: (a) the
principal of, premium, if any, and interest and Special Interest, if any, on the
Notes shall be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, and interest and Special Interest, if any,
on the Notes, if lawful, and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration pursuant to Section 6.02 hereof, redemption or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard
to this Guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company under
this Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require any of the Trustee, the Holders or the Company (each a
"BENEFITED PARTY"), as a condition of payment or performance by such Guarantor,
to (1) proceed against the Company, any other guarantor (including any other
Guarantor) of the obligations under the Guarantees or any other Person, (2)
proceed against or exhaust any security held from the Company, any such other
guarantor or any other Person, (3) proceed against or have resort to any balance
of any deposit account or credit on the books of any Benefited Party in favor of
the Company or any other Person, or (4) pursue any other remedy in the power of
any Benefited Party whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or
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other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the obligations under the
Guarantees or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than payment in
full of the obligations under the Guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome that that of the
principal; (d) any defense based upon any Benefited Party's errors or omissions
in the administration of the obligations under the Guarantees, except behavior
which amounts to bad faith; (e) (1) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of the
Guarantees and any legal or equitable discharge of such Guarantor's liability
hereunder or the enforcement hereof, (2) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (3) any rights to set offs, recoupments and counterclaims and (4)
promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or lien or any property subject
thereto; (f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of the Guarantees, notices of default under the Notes or any agreement or
instrument related thereto, notices of any renewal, extension of credit to the
Company and any right to consent to any thereof; (g) to the extent permitted
under applicable law, the benefits of any "One Action" rule and (h) any defenses
or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms of the Guarantees. Except to the extent expressly provided herein,
including Sections 8.02, 8.03, 10.05 and 10.06, each Guarantor hereby covenants
that its Guarantee shall not be discharged except by complete performance of the
obligations contained in its Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
Section 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
under this Article 10 shall be limited to the maximum amount as shall, after
giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, including, if
applicable, its guarantee of all obligations under the Senior Credit Facilities,
and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance.
Section 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of such Guarantee in substantially the
form included in Exhibit E shall be endorsed by an Officer of such
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Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its President or one
of its Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section
10.01 hereof shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
Section 10.04. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
Each Guarantor shall not, and the Company shall not cause or permit
any Guarantor to, consolidate with or merge with or into any Person other than
the Company or any other Guarantor unless:
(a) the entity formed by or surviving any such consolidation or
merger (if other than the Guarantor) is a corporation, partnership or limited
liability company organized and existing under the laws of the United States or
any State of the United States or the District of Columbia;
(b) such entity surviving any such consolidation or merger (if other
than the Guarantor) assumes by supplemental indenture all of the obligations of
the Guarantor on the Guarantee;
(c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(d) in the case of such consolidation or merger by a Subsidiary
Guarantor, immediately after giving effect to such transaction and the use of
any net proceeds therefrom on a pro forma basis, the Company could incur $1.00
of additional Debt under paragraph (a) of Section 4.09 without taking into
account the last sentence thereof.
In connection with any merger or consolidation of a Guarantor with
and into the Company (with the Company being the surviving entity) or another
Guarantor that is a Wholly Owned Restricted Subsidiary, the Company must deliver
to the Trustee prior to the consummation of the proposed transaction an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation or merger complies with this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
In case of any such consolidation or merger and upon the assumption
by the successor Person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Guarantees theretofore and thereafter issued in accordance with the terms
of this Indenture as though all of such Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) through (d) above, nothing contained in this Indenture or in any of
the Notes shall prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
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Section 10.05. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary Guarantor of the Company, then such Guarantor (in the event of a sale
or other disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and relieved of any obligations
under its Guarantee; provided that the net proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation Section 4.12 hereof. Upon delivery by
the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Section 4.12 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its
Guarantee.
Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
Section 10.06. RELEASE OF SFC GUARANTEE.
Unless earlier released pursuant to this Indenture, the SFC
Guarantee shall terminate upon expiration of the Restricted Period and SFC shall
be released and relieved of any obligations under the SFC Guarantee. Upon
delivery by the Company to the Trustee of an Officers' Certificate to the effect
that the expiration of the Restricted Period has occurred, the Trustee shall
execute any documents reasonably required in order to evidence the release of
SFC from its obligations under the SFC Guarantee.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01. SATISFACTION AND DISCHARGE.
This Indenture will be discharged and will cease to be of further
effect, except as to surviving rights of registration of transfer or exchange of
the Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been previously authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has previously been deposited in trust or segregated
and held in trust by the Company and is thereafter repaid to the Company
or discharged from the trust) have been delivered to the Trustee for
cancellation; or
(ii) all Notes that have not been previously delivered to the Trustee
for cancellation (A) have become due and payable or (B) will become due
and payable at their maturity within one year or (C) are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of a notice of redemption by the Trustee, and the Company
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash, in the
opinion of a firm of independent public accountants of recognized
international standing, in U.S. dollars, non-callable U.S. Government
Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest, to pay
and discharge the entire Debt on the Notes not previously delivered to the
Trustee for cancellation for principal, premium, if any, and interest and
Special Interest, if any, on the Notes to the date of deposit, in the case
of Notes that have become due and payable, or to the Stated Maturity or
redemption date, as the case may be;
85
(b) the Company has paid or caused to be paid all other sums payable
by it under this Indenture; and
(c) the Company delivers to the Trustee an Officers' Certificate and
Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been
satisfied.
Section 11.02. DEPOSITED CASH AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 11.03 hereof, all cash and non-callable U.S.
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
11.02, the "TRUSTEE") pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest and Special Interest, if any, but such cash and securities need not be
segregated from other funds except to the extent required by law.
Section 11.03. REPAYMENT TO COMPANY.
Any cash or non-callable U.S. Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest or Special Interest,
if any, on, any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest or Special Interest, if any, has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining will be repaid to the Company.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the provision required by the TIA shall control.
Section 12.02. NOTICES.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next-day delivery, to the other's address:
86
If to the Company:
S&C Holdco 3, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to the Trustee:
The Bank of New York Trust Company, N.A.
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the
Trustee) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery. All notices and communications to the
Trustee shall be deemed duly given and effective only upon receipt.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders 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 section 312(c).
Section 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee:
87
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
Section 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
With respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or of the Guarantor under the
Notes, this Indenture, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
Section 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE AND THE NOTES 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.
88
Section 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.10. SUCCESSORS.
All covenants and agreements of the Company in this Indenture and
the Notes shall bind its successors. All covenants and agreements of the Trustee
in this Indenture shall bind its successors.
Section 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 12.14. QUALIFICATION OF THIS 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 and expenses 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.
[Signatures on following page]
89
SIGNATURES
Dated as of March 11, 2005
ISSUER:
S&C HOLDCO 3, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Vice President
and Chief Financial Officer
GUARANTOR:
SWIFT FOODS COMPANY
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
TRUSTEE:
THE BANK OF NEW YORK TRUST COMPANY,
N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
(Face of Note)
11.00% SENIOR NOTES DUE 2010
CUSIP _____________
NO._________ $_____________
S&C HOLDCO 3, INC.
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on March 11, 2010.
Interest Payment Dates: May 1 and November 1 , commencing November 1, 2005.
Record Dates: April 15 and October 15 .
Dated: March 11, 2005.
FOR PURPOSES XX XXXXXXXX 0000, 0000 XXX 0000 XX XXX XXXXXX XXXXXX INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE UNITED STATES TREASURY REGULATIONS
PROMULGATED THEREUNDER, THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT. A
HOLDER OF THIS NOTE MAY OBTAIN INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF
ORIGINAL ISSUE DISCOUNT, AND YIELD TO MATURITY OF THIS NOTE BY SUBMITTING A
WRITTEN REQUEST FOR SUCH INFORMATION TO: SWIFT FOODS COMPANY, CHIEF FINANCIAL
OFFICER, 0000 XXXXXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000, SUCH INFORMATION TO BE
MADE AVAILABLE NO LATER THAN 10 DAYS AFTER THE ISSUE DATE, PROMPLTY UPON
REQUEST.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
S&C HOLDCO 3, INC.
By:______________________________
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By:_________________________________
Authorized Signatory
Dated March 11, 2005
A-2
(Back of Note)
11.00% Senior Notes due 2010
[Insert the Global Note Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the terms of the
Indenture]
[Insert the Regulation S Temporary Global Note Placement Legend, if applicable
pursuant to the terms of the Indenture]
[Insert the Definitive Note Legend, if applicable pursuant to the terms of the
Indenture]
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. S&C Holdco 3, Inc., a Delaware corporation (the "ISSUER"
or the "COMPANY"), promises to pay interest until maturity on the principal
amount of this Note at the rate of 11.00% per annum if interest is paid in cash
and at the rate of 12.00% per annum if interest is paid in the form of PIK Notes
as provided in Section 4.01 of the Indenture and shall pay Special Interest, if
any, as provided in the Registration Rights Agreement. The Issuer shall pay
interest semi-annually on May 1 and November 1 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "INTEREST
PAYMENT DATE"); provided, that the first Interest Payment Date shall be the
first of May 1 or November 1, 2005 to occur after the date of issuance, unless
such May 1 or November 1 occurs within two calendar months of such date of
issuance, in which case the first Interest Payment Date shall be the second of
May 1 and November 1 to occur after the date of issuance. Interest on the Notes
(other than PIK Notes) shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance.
Interest on each PIK Note shall accrue from the Interest Payment Date in respect
of which such PIK Note was issued or deemed issued under the Indenture. The
Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time at a rate that is 1% per annum in excess of the interest rate then in
effect under the Indenture and this Note; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful. If the Issuer elects to issue PIK Notes in lieu of cash interest
for an Interest Payment Date in accordance with Section 4.01 of the Indenture,
and if for any reason one or more PIK Notes shall not be issued, authenticated
and delivered in accordance with the Indenture, such PIK Notes shall be deemed
to have been issued, authenticated and delivered for all purposes of the
Indenture and, in particular, interest shall accrue on this Note such that the
aggregate interest due and payable at maturity and on each Interest Payment Date
would be the same as if all PIK Notes with respect to this Note not issued,
authenticated and delivered had been issued, authenticated and delivered and the
principal payable at maturity with respect to this Note shall be an amount equal
to the sum of the principal outstanding hereunder and the aggregate principal
that would be outstanding if the PIK Notes not issued, authenticated and
delivered had been issued, authenticated and delivered. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
[Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.](1)
2. METHOD OF PAYMENT. The Issuer shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the April 15
or October 15 next preceding the Interest Payment Date ("REGULAR RECORD DATE"),
even if such Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Notes shall be payable as to principal,
premium, if any, and
----------
(1) To be used for Temporary Regulation S Global Note only.
A-3
interest and Special Interest, if any, at the office or agency of the Issuer
maintained for such purpose, or, at the option of the Issuer, payment of cash
interest may be made by check mailed to the Holders at their addresses set forth
in the Security Register; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
cash interest and cash Special Interest, if any, and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Issuer or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Trust
Company, N.A., the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice to
any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture dated as
of March 11, 2005 ("INDENTURE") among the Issuer, Swift Foods Company, as
Guarantor, 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, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are general obligations
of the Issuer and will be unsecured except to the extent provided in Section
4.11 of the Indenture. The Notes that may be issued under the Indenture shall be
limited to the Initial Notes, the PIK Notes and any Notes issued pursuant to
Section 2.06, 2.07, 2.10, 3.06, 3.09, 4.18, 4.19, or 9.05 of the Indenture all
of which shall constitute a single class of securities for purposes of the
Indenture.
5. OPTIONAL REDEMPTION.
(a) The Issuer may redeem all or any portion of the Notes, at once
or over time, after giving the required notice under the Indenture. The Notes
may be redeemed at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Special Interest,
if any, to, but excluding, the applicable 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 periods indicated below:
Redemption Period Percentage
------------------------------------------- ----------
March 11, 2005 - September 10, 2006........ 102.00%
September 11, 2006 - March 10, 2008........ 105.50%
March 11, 2008 - March 10, 2009............ 102.75%
March 11, 2009 and thereafter.............. 100.00%
(b) Any redemption pursuant to this paragraph shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION OR REPURCHASE. Except as set forth in Sections
3.09, 4.12, 4.18 and 4.19 of the Indenture, the Issuer shall not be required to
make mandatory redemption payments, repurchase offers or sinking fund payments
with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder shall have the
right to require the Issuer to repurchase all or any part (equal to $1.00 or an
integral multiple thereof) of such Holder's Notes (a "CHANGE OF CONTROL OFFER")
at a purchase price, in cash, equal to (x) 102% of the aggregate principal
amount of the Notes repurchased if the Change of Control occurs prior to the
earlier to occur of (A) September 11, 2006 and (B) the Issuer's satisfaction in
full of its obligation to repurchase Notes out of Net Offering Proceeds pursuant
to Section 4.19 of the Indenture or (y) 101% of the aggregate principal amount
of the Notes repurchased if the Change of Control occurs on or after the earlier
to occur of (A) September 11, 2006 and (B) the Issuer's satisfaction in full of
its obligation to repurchase Notes out of the Net Offering Proceeds pursuant to
Section 4.19 of the Indenture, in each
A-4
case, plus accrued and unpaid interest and Special Interest, if any, on the
Notes repurchased to, but excluding, the Change of Control Payment Date (subject
to the right of Holders of record on the relevant record date to receive
interest to, but excluding, the Change of Control Payment Date). Holders of
Notes that are the subject of an offer to purchase will receive a Change of
Control Offer from the Issuer prior to any related purchase date and may elect
to have such Notes purchased by completing the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Notes.
(b) If the Issuer or one of its Restricted Subsidiaries consummates any
Asset Sales, they shall not be required to apply any Net Available Cash in
accordance with the Indenture until the aggregate Net Available Cash from all
Asset Sales following the date the Notes are first issued exceeds $15.0 million.
Thereafter, once the Issuer or its Restricted Subsidiaries accumulates an
additional aggregate $15.0 million of Net Available Cash from all Asset Sales,
the Issuer shall, after application of the additional aggregate $15.0 million of
Net Available Cash as provided in clause (a)(iii)(A) of Section 4.12 of the
Indenture, commence an offer for Notes pursuant to the Indenture by applying the
Net Available Cash in excess of $15.0 million (an "ASSET SALE OFFER") pursuant
to Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes that may be purchased out of the Net Available Cash at an offer price in
cash equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, to the date fixed for the closing of such
offer in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Net Available Cash, the Issuer (or such Restricted
Subsidiary) may use such excess Net Available Cash for any purpose not
prohibited by the Indenture, including the repurchase of any subordinated notes
required upon an Asset Sale by the indenture pursuant to which such subordinated
notes were issued or as a dividend or distribution for the repurchase of the
Convertible Notes required upon an Asset Sale by the Convertible Notes
Indenture. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Net Available Cash, the Issuer shall select the
Notes to be purchased in accordance with Section 3.09 of the Indenture. Holders
of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Issuer prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes. To the extent an Asset Sale hereunder
also constitutes an Asset Sale under the OpCo Senior Indenture or the OpCo
Subordinated Indenture, an Asset Sale Offer is only required to be made out of
the proceeds which remain after application of the proceeds in accordance with
the OpCo Senior Indenture and the OpCo Subordinated Indenture and to the extent
that such remaining proceeds may be paid as a dividend or distribution to the
Issuer without violation of state surplus laws and the terms of the OpCo Senior
Indenture, the OpCo Subordinated Indenture and the Senior Credit Facilities.
(c) Each Holder shall have the right to require the Issuer to repurchase
all or any part (equal to $1.00 or an integral multiple thereof) of such
Holder's Notes pursuant to each offer described below (an "IPO REDEMPTION
OFFER") at the purchase price (expressed as percentages of principal amount), in
cash set forth below (the "IPO REDEMPTION PURCHASE PRICE"), plus accrued and
unpaid interest and Special Interest, if any, on the Notes repurchased, to, but
excluding, the IPO Redemption Date (subject to the right of Holders on the
relevant record date to receive interest to, but excluding, the IPO Redemption
Payment Date (as defined below)) upon the completion of an Initial Public
Offering and, if the Net IPO Proceeds are insufficient to permit the repurchase
of the IPO Redemption Amount, of each subsequent underwritten public offering of
common stock of SFC (each a "SUBSEQUENT OFFERING") during the periods indicated
below to the extent of the Net Offering Proceeds therefrom:
Public Offering Completion Date Percentage
------------------------------------------- ----------
March 11, 2005 - September 10, 2006........ 102.00%
September 11, 2006 - March 10, 2008........ 105.50%
March 11, 2008 - March 10, 2009............ 102.75%
March 11, 2009 and thereafter.............. 100.00%
If the Net IPO Proceeds are insufficient to permit the repurchase of the
IPO Redemption Amount, the Issuer shall be required to make an IPO Redemption
Offer with the Net Offering Proceeds of one or more Subsequent Offerings until
the aggregate amount of all IPO Redemption Offers equals the IPO Redemption
Amount. If the Net Offering Proceeds equal or exceed the aggregate amount of
Notes tendered in the IPO Redemption Offer, the Issuer will purchase all such
Notes tendered. If the aggregate principal amount of Notes surrendered by
Holders in an IPO Redemption Offer exceeds the Net Offering Proceeds, the Issuer
shall select the
A-5
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Issuer so that only Notes in denominations of $1.00 or
integral multiples thereof shall be purchased). Holders of Notes that are the
subject of an offer to purchase will receive an IPO Redemption Offer from the
Issuer prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days (or in the case of a partial redemption, at least 45 days) but not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1.00 may
be redeemed in part but only in integral multiples thereof, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1.00 and integral multiples thereof. This
Note shall represent the aggregate principal amount of outstanding Notes from
time to time endorsed hereon and the aggregate principal amount of Notes
represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Issuer need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Issuer need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
[This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Global Notes only (i) on or after the termination of the
Distribution Compliance Period and (ii) upon presentation of certificates
(accompanied by an Opinion of Counsel, if applicable) required by Article 2 of
the Indenture. Upon exchange of this Regulation S Temporary Global Note for one
or more Global Notes, the Trustee shall cancel this Regulation S Temporary
Global Note.](2)
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions
described in Section 9.02 of the Indenture, the Issuer and the Trustee may amend
or supplement the Indenture or the Notes with the consent of the Holders of a
majority in principal amount of the then outstanding Notes voting as a single
class (including consents obtained in connection with a purchase of or tender
offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07
of the Indenture, any existing Default or Event of Default (except a continuing
Default or Event of Default in the payment of principal, premium, if any,
interest or Special Interest, if any, on the Notes) or compliance with any
provision of the Indenture or the Notes (except for certain covenants and
provisions of the Indenture which cannot be amended without the consent of each
Holder) may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes then outstanding voting as a single class
(including consents obtained in connection with a purchase of or tender offer or
exchange offer for the Notes). Without the consent of any Holder, the Issuer and
the Trustee may amend or supplement the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, to provide for the assumption by a
successor corporation, partnership or limited liability company of the
obligations of the Issuer under the Indenture, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to add additional
Guarantees or additional obligors with respect to the Notes, to secure the
Notes, to add to the covenants of the Issuer for the benefit of the Holders of
the Notes or to surrender any right or power conferred upon the Issuer, to make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder or to make any change to comply with any requirement of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
----------
(2) To be used for Temporary Regulation S Global Note only.
A-6
12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default
under the Indenture: the failure to pay interest, including Special Interest, if
any, on the Notes when that interest or Special Interest becomes due and payable
and the Default continues for 30 days; the failure to pay principal of or
premium, if any, on the Notes when that principal or premium, if any, becomes
due and payable, at maturity, upon redemption or otherwise; the failure to
observe or perform any other covenant or agreement contained in the Notes, the
Guarantees or the Indenture, which failure continues for a period of 60 days
after the Issuer receives a written notice specifying the default from the
Trustee or Holders of at least 25% in aggregate principal amount of outstanding
Notes; the failure by the Issuer or any Restricted Subsidiary to pay Debt at the
final stated maturity, after giving effect to any extensions, or upon the
acceleration of the final stated maturity of that Debt, if the aggregate
principal amount of that Debt, together with the aggregate principal amount of
any other such Debt in default for failure to pay principal at the final stated
maturity, after giving effect to any extensions, or upon the acceleration of the
final stated maturity of that Debt, aggregates $20.0 million or more at any time
and such default shall not have been cured or such acceleration shall not have
been rescinded after a 10-day period; one or more judgments in an aggregate
amount in excess of $20.0 million, which judgments are not covered by insurance,
or if covered by insurance, as to which the insurer has disclaimed coverage,
being rendered against SFC, the Issuer or any of its Restricted Subsidiaries and
such judgment or judgments remain undischarged, unwaived or unstayed for a
period of 60 days after such judgment or judgments become final and
nonappealable; certain events of bankruptcy, insolvency or reorganization
described in the Indenture affecting SFC, the Issuer or any of its Significant
Subsidiaries; and the Guarantee of SFC or any Subsidiary Guarantee of a
Significant Subsidiary (i) ceases to be in full force and effect, (ii) is
declared to be null and void and unenforceable by a judicial determination or
(iii) is found to be invalid by a judicial determination, or any Guarantor
denies its obligations under its Guarantee (in each case, other than by reason
of release of a Guarantor in accordance with the terms of the Indenture).
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency described in the Indenture, all outstanding Notes shall become due
and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Special Interest) if it determines in accordance with
the Indenture that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest or
Special Interest on, or the principal of, the Notes. The Issuer is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Issuer is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUER. Subject to certain limitations, the
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer
with the same rights it would have if it were not Trustee.
14. DESIGNATED SENIOR DEBT. The Company hereby designates the Notes and
the Guarantees as "Designated Senior Debt" as that term is defined in the
Convertible Notes Indenture.
15. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Issuer or of any
Guarantor, as such, shall have any liability for any obligations of the Issuer
or any Guarantor under the Indenture, the Notes, the Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with
A-7
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement, dated as of March 11, 2005, between the Issuer and the parties named
on the signature pages thereto.
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. 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.
The Issuer shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
S&C Holdco 3, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
20. GOVERNING LAW. The internal law of the State of New York shall
govern and be used to construe this Note without giving effect to applicable
principals of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
A-8
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.12, 4.18 or 4.19 of the Indenture, check the box below:
[ ] Section 4.12
[ ] Section 4.18
[ ] Section 4.19
If you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 4.12, 4.18 or Section 4.19 of the Indenture, state the
amount you elect to have purchased: $_____________________
Date:________________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.: ________________________
SIGNATURE GUARANTEE:
_________________________
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Registrar
in addition to, or in
substitution for, STAMP,
all in accordance with the
Securities Exchange Act of
1934, as amended.
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or other tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Issuer. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ______________
Your Signature:__________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:_______________________________________
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
S&C Holdco 3, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
Re: 11.00% Senior Notes due 2010
Reference is hereby made to the Indenture, dated as of March 11, 2005 (the
"Indenture"), among S&C Holdco 3, Inc., as issuer (the "Issuer"), the Guarantors
party thereto and The Bank of New York Trust Company, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on
B-1
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Temporary Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged in
any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the IAI Global Note and/or the Definitive Notes and in the Indenture and
the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not
B-2
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer.
___________________________________________
[Insert Name of Transferor]
By:________________________________________
Name:
Title:
Dated: ______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
S&C Holdco 3, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
Re: 11.00% Senior Notes due 2010
Reference is hereby made to the Indenture, dated as of March 11,
2005 (the "Indenture"), among S&C Holdco 3, Inc., as issuer (the "Issuer"), the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Note and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without
C-1
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CIRCLE ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer.
____________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated: ______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
S&C Holdco 3, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
The Bank of New York Trust Company, N.A.
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
Re: 11.00% Senior Notes due 2010
Reference is hereby made to the Indenture, dated as of March 11,
2005 (the "Indenture"), among S&C Holdco 3, Inc., as issuer (the "Issuer"), the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Issuer or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Issuer a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Issuer to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuer such certifications, legal opinions and other information as you and the
Issuer may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment. We have had access to such
D-1
financial and other information and have been afforded the opportunity to ask
such questions of representatives of the Issuer and receive answers thereto, as
we deem necessary in connection with our decision to purchase the Notes.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion and are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the Securities Act of
the securities laws of any state of the United States or any other applicable
jurisdiction.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. This letter shall be governed by, and
construed in accordance with, the laws of the State of New York.
_________________________________________
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in, and subject to the provisions of, the
Indenture, dated as of March 11, 2005 (the "INDENTURE"), among S&C Holdco 3,
Inc., as issuer (the "ISSUER"), the Guarantors listed on the signature pages
thereto and The Bank of New York Trust Company, N.A., as trustee (the
"TRUSTEE"), (a) the due and punctual payment of the principal of, premium, if
any, and interest and Special Interest, if any, on the Notes, whether at
maturity, by acceleration, redemption, repurchase or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, and, to
the extent permitted by law, interest and Special Interest, if any, and the due
and punctual performance of all other obligations of the Issuer to the Holders
or the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture
are expressly set forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. This Guarantee is
subject to release as and to the extent set forth in Sections 8.02, 8.03, 10.05
and 10.06 of the Indenture. Each Holder of a Note, by accepting the same agrees
to and shall be bound by such provisions.
SWIFT FOODS COMPANY
By:____________________________________
Name:
Title:
E-1
