EXHIBIT 4.5
EXECUTION COPY
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Land O'Lakes, Inc.
8 3/4% Senior Notes due 2011
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INDENTURE
Dated as of November 14, 2001
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U.S. Bank N.A.,
as Trustee
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TABLE OF CONTENTS
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Definitions........................................................................25
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................26
SECTION 1.04. Rules of Construction....................................................................27
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.................................................27
SECTION 2.02. Form and Dating..........................................................................29
SECTION 2.03. Execution and Authentication.............................................................29
SECTION 2.04. Registrar and Paying Agent...............................................................29
SECTION 2.05. Paying Agent to Hold Money in Trust......................................................30
SECTION 2.06. Holder Lists.............................................................................31
SECTION 2.07. Transfer and Exchange....................................................................31
SECTION 2.08. Replacement Securities...................................................................32
SECTION 2.09. Outstanding Securities...................................................................32
SECTION 2.10. Temporary Securities.....................................................................33
SECTION 2.11. Cancelation..............................................................................33
SECTION 2.12. Defaulted Interest.......................................................................33
SECTION 2.13. CUSIP and ISIN Numbers...................................................................33
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee.......................................................................34
SECTION 3.02. Selection of Securities To Be Redeemed...................................................34
SECTION 3.03. Notice of Redemption.....................................................................34
SECTION 3.04. Effect of Notice of Redemption...........................................................35
SECTION 3.05. Deposit of Redemption Price..............................................................35
SECTION 3.06. Securities Redeemed in Part..............................................................36
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities....................................................................36
SECTION 4.02. SEC Reports..............................................................................36
SECTION 4.03. Limitation on Indebtedness...............................................................37
SECTION 4.04. Limitation on Restricted Payments........................................................39
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries.................42
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.......................................43
SECTION 4.07. Limitation on Transactions with Affiliates...............................................47
SECTION 4.08. Change of Control........................................................................48
SECTION 4.09. Compliance Certificate...................................................................50
SECTION 4.10. Further Instruments and Acts.............................................................50
SECTION 4.11. Cooperative Status.......................................................................50
SECTION 4.12. Future Subsidiary Guarantors.............................................................50
SECTION 4.13. Limitation on Lines of Business..........................................................50
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries...........51
SECTION 4.15. Limitation on Liens......................................................................51
SECTION 4.16. Limitation on Sale/Leaseback Transactions................................................51
SECTION 4.17. Fall-Away of Covenants...................................................................51
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets................................................52
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default........................................................................54
SECTION 6.02. Acceleration.............................................................................56
SECTION 6.03. Other Remedies...........................................................................57
SECTION 6.04. Waiver of Past Defaults..................................................................57
SECTION 6.05. Control by Majority......................................................................57
SECTION 6.06. Limitation on Suits......................................................................58
SECTION 6.07. Rights of Holders to Receive Payment.....................................................58
SECTION 6.08. Collection Suit by Trustee...............................................................58
SECTION 6.09. Trustee May File Proofs of Claim.........................................................58
SECTION 6.10. Priorities...............................................................................59
SECTION 6.11. Undertaking for Costs....................................................................59
SECTION 6.12. Waiver of Stay or Extension Laws.........................................................59
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee........................................................................60
SECTION 7.02. Rights of Trustee........................................................................61
SECTION 7.03. Individual Rights of Trustee.............................................................62
SECTION 7.04. Trustee's Disclaimer.....................................................................62
SECTION 7.05. Notice of Defaults.......................................................................62
SECTION 7.06. Reports by Trustee to Holders............................................................62
SECTION 7.07. Compensation and Indemnity...............................................................63
SECTION 7.08. Replacement of Trustee...................................................................64
SECTION 7.09. Successor Trustee by Merger..............................................................65
SECTION 7.10. Eligibility; Disqualification............................................................65
SECTION 7.11. Preferential Collection of Claims Against Company........................................65
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.........................................65
SECTION 8.02. Conditions to Defeasance.................................................................67
SECTION 8.03. Application of Trust Money...............................................................68
SECTION 8.04. Repayment to Company.....................................................................68
SECTION 8.05. Indemnity for Government Obligations.....................................................68
SECTION 8.06. Reinstatement............................................................................69
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders...............................................................69
SECTION 9.02. With Consent of Holders..................................................................70
SECTION 9.03. Compliance with Trust Indenture Act......................................................71
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................71
SECTION 9.05. Notation on or Exchange of Securities....................................................72
SECTION 9.06. Trustee to Sign Amendments...............................................................72
SECTION 9.07. Payment for Consent......................................................................72
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees...................................................................72
SECTION 10.02. Limitation on Liability.................................................................75
SECTION 10.03. Successors and Assigns..................................................................76
SECTION 10.04. No Waiver...............................................................................76
SECTION 10.05. Modification............................................................................76
SECTION 10.06. Execution of Supplemental Indenture for Future Subsidiary Guarantors....................76
SECTION 10.07. Non-Impairment...........................................................................76
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls............................................................77
SECTION 11.02. Notices.................................................................................77
SECTION 11.03. Communication by Holders with Other Holders.............................................78
SECTION 11.04. Certificate and Opinion as to Conditions Precedent......................................78
SECTION 11.05. Statements Required in Certificate or Opinion...........................................78
SECTION 11.06. When Securities Disregarded.............................................................79
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar............................................79
SECTION 11.08. Legal Holidays..........................................................................79
SECTION 11.09. GOVERNING LAW...........................................................................79
SECTION 11.10. No Recourse Against Others..............................................................79
SECTION 11.11. Successors..............................................................................79
SECTION 11.12. Multiple Originals......................................................................80
SECTION 11.13. Table of Contents; Headings.............................................................80
Appendix A - Provisions Relating to Original Securities, Additional
Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of November 14, 2001,
among Land O'Lakes, Inc., a Minnesota cooperative
corporation (the "Company"), ACS Stores, L.L.C.,
Advanced Business Concepts International, LLC,
Alliance Milk Products, LLC, America's Country Stores
Holdings, LLC, America's Country Stores, LLC, Coastal
Ag-Development, Inc., Dairy Management Services,
L.L.P., Diamond Cross, LLC, Farbest, Inc., FMR, Inc.
Forage Genetics, Inc., Golden State Feeds, LLC,
Golden Valley Dairy Products, L.L. Olds Seed Company,
Land O'Lakes Farmland Feed LLC, Land O'Lakes
Holdings, Inc., Land O'Lakes International
Development Corporation, LOL Holdings II, Inc., LOL
Power, LLC, Mapleleaf, L.L.C, Michigan State Seed
Company, Milk Products, LLC, North Coast Fertilizer
II, Inc., Northwest Food Products Company, Inc.,
Northwest Food Products Transportation, LLC,
Nutra-Blend, LLC, PM Nutrition Company, LLC, PMI
Nutrition, LLC, PMI Agriculture, L.L.C., PMI
Nutrition International, LLC, Purina Xxxxx, LLC, QC,
Inc., QC Holdings Inc., QC Industries, Inc., Realty
LOL, Inc., Research Seeds, Inc., Seed Research, Inc.,
Seedbiotics, L.L.C, Xxxxxx Products, LLC
(collectively, the "Subsidiary Guarantors") and U.S.
Bank N.A., a national banking association, as trustee
(the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (a) the
Company's 8 3/4% Senior Notes due 2011 issued on the date hereof (the "Original
Securities"), (b) any Additional Securities (as defined herein) that may be
issued on any Issue Date (all such Securities in clauses (a) and (b) being
referred to collectively as the "Initial Securities"), and (c) if and when
issued as provided in a Registration Agreement (as defined in Appendix A hereto
(the "Appendix")), the Company's 8 3/4% Senior Notes due 2011 issued in a
Registered Exchange Offer in exchange for any Initial Securities (the "Exchange
Securities") (together with the Initial Securities, the "Securities").
$350,000,000 in aggregate principal amount of the Securities will be initially
issued on the date hereof. Subject to the conditions and in compliance with the
covenants set forth herein, the Company may issue an unlimited aggregate
principal amount of Additional Securities.
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accounts" means all Accounts (as defined in the Uniform
Commercial Code) and Account Assets with respect to such Accounts, including
those related to the dairy businesses of the Company and the Restricted
Subsidiaries and payable to such parties, including, but not limited to,
accounts receivable generated from the marketing and sale of milk, butter,
cheese, cream products, dairy and non-dairy spreads, whey, non-fat dry milk,
cocoa, and other dairy or dairy related products sold for consumer use,
licensing fees relating to dairy products and dairy related services, and the
proceeds thereof, but specifically excluding the CoBank Accounts and the Account
Assets with respect to such CoBank Accounts.
"Account Assets" means, collectively, with respect to Accounts
or CoBank Accounts, as the case may be, all such Accounts or CoBank Accounts,
together with (a) all right, title and interest in and to all contracts that
relate to any of such accounts; (b) all security interests or liens and property
subject thereto from time to time purporting to secure payment of any of such
accounts, whether pursuant to the contracts related to such accounts or
otherwise; (c) all UCC financing statements covering any collateral securing
payment of any of such accounts; (d) all guarantees and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of any of such accounts whether pursuant to the contracts related to any
of such accounts or otherwise; (e) all interest in the merchandise, goods,
products or other property (including any that is returned), if any, the sale of
which gave rise to any of such accounts; and (f) all proceeds of the foregoing.
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) any Investments in Permitted Businesses
permitted by Section 4.04; (c) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary; or (d) Capital Stock constituting
a minority interest in any Person that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (c)
or (d) above is primarily engaged in a Permitted Business.
"Additional Securities" means any 8 3/4% Senior Notes due 2011
issued under the terms of this Indenture subsequent to the Closing Date.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with
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such specified Person. For the purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.06 and 4.07 only, "Affiliate" shall also mean any beneficial owner of
shares representing 10% or more of the total voting power of the Voting Stock
(on a fully diluted basis) of the Company or of rights or warrants to purchase
such Voting Stock (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Agriliance" means Agriliance LLC.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Wholly Owned Subsidiary, (ii) for purposes of Section 4.06 only, a disposition
that constitutes a Restricted Payment permitted by Section 4.04, (iii) a
disposition of assets with a Fair Market Value of less than $500,000, (iv) the
disposition of all or substantially all of the assets of the Company in a manner
permitted by Section 5.01, and (v) the sale to one or more Securitization
Vehicles of accounts receivable (including Account Assets) or inventory in
Securitizations, provided that (1) each such Securitization is effected on
market terms, (2) the aggregate amount of Third Party Securities in respect of
all such Securitizations does not exceed $200 million at any time outstanding
and (3) an amount equal to the Net Available Cash from each such Securitization
is applied to the mandatory repayment of Bank Indebtedness (notwithstanding, in
the case of the Amended and Restated Five-Year Credit Agreement referred to in
the definition of Credit Agreement, that the commitment is not required to be
reduced)). For the purposes of the foregoing clause (v), the Company and its
Restricted Subsidiaries shall be deemed at the time of any issuance by the
relevant Securitization Vehicle of Third Party Securities to have received Net
Available Cash in an amount equal to the Net Available Cash to the
Securitization Vehicle from such issuance of Third Party Securities and will not
be deemed to have received Net Available Cash in connection with ongoing sales
of accounts receivable (including Account Assets) or inventory to such
Securitization Vehicle that are purchased by it with the proceeds
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from collections of receivables or from ordinary course sales of inventory, in
each case previously purchased by it pursuant to such Securitization.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof. It is understood and agreed that Refinancing
Indebtedness in respect of the Credit Agreement may be Incurred from time to
time after termination of the Credit Agreement and that such Refinancing
Indebtedness will be deemed to constitute Bank Indebtedness.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of the Board
of Directors of the Company.
"Business Day" means each day which is not a Legal Holiday.
"Capital Securities" means the trust preferred securities in
aggregate face amount of up to $200 million issued pursuant to the Indenture
dated as of March 25, 1998, between the Company and Wilmington Trust Company.
"Capital Stock" of any Person means any and all shares,
membership interests, limited liability company interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any Preferred Stock and
any cooperative membership interests or accounts, but excluding any debt
securities convertible into such equity.
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"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (a) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Company (for the purposes
of this clause (a), any person shall be deemed to beneficially own any
Voting Stock of an entity (the "specified entity") held by any other
entity (the "parent entity") if such other person is the beneficial
owner (as defined in this clause (a)), directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such parent entity;
or
(b) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of directors
of the Company (together with any new directors whose election by such
board of directors of the Company or whose nomination for election was
approved by a vote of 66-2/3% of the directors of the Company then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the board of
directors of the Company then in office;
(c) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(d) the Company fails to maintain cooperative status under
Subchapter T of the Code or Minnesota law; or
(e) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another Person, and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100% of
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the aggregate voting power of the Voting Stock of the Company are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving Person or transferee that represent immediately after
such transaction, at least a majority of the aggregate voting power of
the Voting Stock of the surviving Person or transferee.
"Closing Date" means the date of this Indenture.
"CoBank" means CoBank, ACB, a federally chartered
instrumentality of the United States.
"CoBank Accounts" means (a) accounts related to the feed
businesses of Land O'Lakes Farmland Feed LLC and Purina Xxxxx, LLC, its
subsidiaries and their respective successors, including, but not limited to,
accounts receivable generated from the sale of animal feed and feed ingredients,
soybean meal, premixes, non-grain protein ingredients, grains, vitamins,
minerals, branded feed products, complete feed products, milk replacer products,
feed additives, animal health products, farm supply products, toll milling
services and other feed related services and the proceeds thereof, (b) accounts
related to the seed business of the Company including, but not limited to,
accounts receivable generated from the sale of seed, licensing fees and seed
related services and the proceeds thereof, (c) accounts related to the swine
businesses of the Company, Land O'Lakes Farmland Feed LLC and Purina Xxxxx, LLC,
its subsidiaries and their respective successors, including, but not limited to,
accounts receivable generated from the sale of swine and swine related services
and the proceeds thereof, and (d) all Account Assets related to the foregoing;
provided, however, that "CoBank Accounts" related to the swine businesses of the
Company and Land O'Lakes Farmland Feed LLC shall not include any such right to
payment where payments have been sent to a lockbox or lockbox account other than
those specified in the guarantee and collateral agreement related to the CoBank
Receivables Loan Agreement.
"CoBank Receivables Loan Agreement" means the Credit Agreement
dated as of October 11, 2001 between the Company and CoBank.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four
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consecutive fiscal quarters ending at least 45 days prior to the date of such
determination to (b) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (i) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence
of Indebtedness, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period, (ii) if the Company or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall
be calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted Subsidiary has
not earned the interest income actually earned during such period in respect of
cash or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness, (iii) if since the beginning of such
period the Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that are the
subject of such Asset Disposition for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iv) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness)
as if such Investment or acquisition occurred on the first day of such period
and (v) if since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or
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was merged with or into the Company or any Restricted Subsidiary since the
beginning of such period) shall have made any Asset Disposition or any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (iii) or (iv) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if such
Asset Disposition, Investment or acquisition of assets occurred on the first day
of such period. For purposes of this definition, whenever pro forma effect is to
be given to an acquisition of assets or other Investment, the amount of income
or earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Company and shall comply with the requirements of Rule
11-02 of Regulation S-X promulgated by the SEC. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Consolidated Restricted
Subsidiaries, plus, to the extent Incurred by the Company and its Consolidated
Restricted Subsidiaries in such period but not included in such interest
expense, without duplication (a) interest expense attributable to Capitalized
Lease Obligations and the interest expense attributable to leases constituting
part of a Sale/Leaseback Transaction, (b) amortization of debt discount and debt
issuance costs, (c) capitalized interest, (d) noncash interest expense, (e)
commissions, discounts and other fees and charges attributable to letters of
credit and bankers' acceptance financing, (f) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is Guaranteed
by the Company or any Restricted Subsidiary, (g) net costs associated with
Hedging Obligations of interest rate and foreign currency exposure (including
amortization of fees), (h) dividends in respect of all Disqualified Stock of the
Company and all Preferred Stock of any of the Subsidiaries of the Company, to
the extent held by Persons other than the Company or a Wholly Owned Subsidiary,
(i) interest Incurred in connection with investments in discontinued operations,
(j) the cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay interest
or fees to any Person (other than the Company) in connection with Indebtedness
Incurred by such plan or trust and (k) the amount of dividends paid in respect
of the Capital Securities. Notwithstanding anything to the contrary contained
herein, commissions, discounts, yield and other fees and charges Incurred in
connection with any transaction (including, without limitation, any
Securitization) pursuant to which the Company or any Subsidiary of the Company
may sell, convey or otherwise transfer or grant a security interest in any
accounts receivable or related assets or inventory or related assets of the type
specified in the definition of "Securitization" shall be included in
Consolidated Interest Expense.
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"Consolidated Net Income" means, for any period, the net
income of the Company and its Consolidated Subsidiaries for such period;
provided, however, that there shall not be included in such Consolidated Net
Income:
(a) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary;
(b) any net income (or loss) of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary
(other than a Restricted Subsidiary which is a Subsidiary Guarantor on
the Closing Date) if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (i) subject to the limitations
contained in clause (d) below, the Company's equity in the net income
of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary during such period
to the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
made to another Restricted Subsidiary, to the limitation contained in
this clause) and (ii) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(d) any gain (but not loss) realized upon the sale or other
disposition of any asset of the Company or its Consolidated
Subsidiaries (including pursuant to any Sale/Leaseback Transaction)
that is not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person;
(e) any extraordinary gain or loss;
(f) the cumulative effect of a change in accounting
principles; and
(g) for the year ended December 31, 2001 charges and expenses
resulting from the acquisition of Purina Xxxxx, Inc. consisting of (i)
up to $18.5 million of extraordinary expenses related to early
extinguishment of debt, (ii) up to $21.0 million of non-cash accruals
for plant writedowns and (iii) up to $5.1 million of expenses related
to the cancellation of an interest rate swap of Purina Xxxxx, Inc.
10
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers or distributions of cash or other assets
from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the
extent such dividends, repayments or transfers increase the amount of Restricted
Payments permitted under such Section pursuant to clause (a) (iv)(3)(D) or (E)
thereof.
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries, determined
on a Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (a) the par or stated value
of all outstanding Capital Stock of the Company plus (b) member equity relating
to such Capital Stock plus (c) any retained earnings or earned surplus less (i)
any accumulated deficit and (ii) any amounts attributable to Disqualified Stock.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance with
GAAP consistently applied; provided, however, that "Consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Company or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Credit Agreement" means, collectively, (a) the Credit
Agreement dated as of October 11, 2001, among the Company, The Chase Manhattan
Bank, as administrative agent, and the lenders party thereto, (b) the Amended
and Restated Five-Year Credit Agreement dated as of October 11, 2001, among the
Company, the lenders party thereto, and The Chase Manhattan Bank, as
administrative agent, and (c) the CoBank Receivables Loan Agreement, each as
amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), refinanced,
restructured or otherwise modified from time to time (except to the extent that
any such amendment, restatement, supplement, waiver, replacement, refinancing,
restructuring or other modification thereto would be prohibited by the terms of
this Indenture, unless otherwise agreed to by the Holders of at least a majority
in aggregate principal amount of Securities at the time outstanding).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Noncash Consideration" means the Fair Market Value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash
11
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified Stock, as applicable) or (c) is
redeemable at the option of the holder thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or prior to 91 days following the Stated
Maturity of the Securities; provided, however, that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to 91 days following the Stated Maturity of the Securities shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions of Sections 4.06 and 4.08.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) depreciation expense of the Company and its Consolidated Restricted
Subsidiaries, (d) amortization expense of the Company and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period), (e) all other noncash
charges of the Company and its Consolidated Restricted Subsidiaries (excluding
any such noncash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period) less all non-cash items of
income of the Company and its Consolidated Restricted Subsidiaries, and (f) up
to $20.0 million of cash severance costs incurred in 2001 and 2002 in connection
with plant closings resulting from the acquisition of Purina Xxxxx, Inc., in
each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and noncash charges of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and, except for Restricted Subsidiaries
which are Subsidiary Guarantors on the Closing Date, only if a corresponding
amount would be
12
permitted at the date of determination to be dividended to the Company by
such Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Exchange Act" means the Securities Exchange Act of 1934.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. For all purposes of this Indenture, Fair Market Value of property
or assets with a value of $10 million or greater will be determined in good
faith by the Board of Directors, whose determination will be conclusive and
evidenced by a resolution of the Board of Directors.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that 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 as in effect as of the Closing Date, including those
set forth in (a) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (b) statements
and pronouncements of the Financial Accounting Standards Board and (c) such
other statements by such other entities as approved by a significant segment of
the accounting profession. All ratios and computations based on GAAP contained
in this Indenture shall be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
13
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (b) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
(d) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
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;
(e) all Capitalized Lease Obligations and all Attributable
Debt of such Person;
(f) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
14
(g) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of (i) the Fair Market Value of such asset
at such date of determination and (ii) the amount of such Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person;
(i) all obligations in respect of Third Party Securities
issued by such Person in Securitizations (regardless of whether
denominated as equity or debt securities); and
(j) all obligations of the type referred to in clauses (a)
through (i) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be
15
deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (i) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time of such
redesignation; and (b) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"Investment Grade" means (a) with respect to S&P, any of the
rating categories from and including AAA to and including BBB-; and (b) with
respect to Moody's, any of the rating categories from and including Aaa to and
including Baa3.
"Issue Date" , with respect to any Initial Securities, means
the date on which such Initial Securities are originally issued.
"Legal Holiday" means a Saturday, Sunday or other day on which
banking institutions are not required by law or regulation to be open in the
State of New York.
"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).
"LOL Finance" means LOL Finance Co., a wholly-owned Subsidiary
of the Company.
"Member" means a holder of the Company's Class A, Class B,
Class C or Class D common stock.
"Minimum Patronage Amount" means, the minimum amount required
to be paid in money or by qualified check under Section 1388 of the Code for the
allocation to be a "qualified written notice of allocation", which currently
means, with respect to a Member, 20% of the Patronage allocated to such Member
in a given year.
"MoArk" means MoArk, LLC.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets
16
that are the subject of such Asset Disposition or received in any other non-cash
form) therefrom, in each case net of (a) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (b) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition, (c)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (d) appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, the Secretary or the Assistant Secretary of the Company. "Officer" of
a Subsidiary Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company, a Subsidiary Guarantor or the Trustee.
"Patronage" means any earnings of the Company and Company's
Subsidiaries returned to Members, either directly or indirectly, based on
business conducted with such Members, including any "Patronage Dividends",
"Per-Unit Retain Allocations", "Qualified Per-Unit Retain Certificates", or
"Non-Qualified Per-Unit Retain Certificates", as such are defined in Sub-chapter
T of the Code, as well as any other redemptions or revolvement payments to
Members.
"Permitted Business" means any business engaged in by the
Company or any Restricted Subsidiary on the Closing Date and any Related
Business.
17
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (a) the Company, a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Permitted Business; (b) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Permitted Business; (c) Temporary Cash Investments; (d) receivables owing to
the Company or any Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (e) 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; (f) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary and not exceeding $5 million in the aggregate outstanding
at any one time; provided that the repayments of such loans or advances shall
not increase the amount of Restricted Payments permitted to be made under
Section 4.04 (a)(iv)(3)(D) or (E); (g) any Person to the extent such Investment
represents the non-cash portion of the consideration received for an Asset
Disposition that was made pursuant to and in compliance with Section 4.06; (h)
Sellers' Retained Interests in Securitizations permitted by Section 4.03 and
Section 4.06; (i) Capital Stock of CoBank required to be made in accordance with
CoBank's bylaws and capital plans applicable to cooperative borrowers generally;
(j) any Persons received in connection with the bankruptcy or reorganization of,
or settlement of delinquent accounts and disputes with, customers and suppliers,
in each case in the ordinary course of business or received in satisfaction of
judgments; (k) loans to Agriliance and MoArk in the ordinary course of business
for cash management purposes in an aggregate principal amount not to exceed $20
million outstanding at any time, which loans shall not be outstanding for more
than 30 days; provided that the repayments of such loans shall not increase the
amount of Restricted Payments permitted to be made under Section
4.04(a)(iv)(3)(D) or (E); (l) loans to LOL Finance in an aggregate principal
amount not to exceed $45 million outstanding at any time, it being understood
that approximately $29.9 million is outstanding on the Closing Date; provided
that the repayments of such loans shall not increase the amount of Restricted
Payments permitted to be made under Section 4.04(a)(iv)(3)(D) or (E); and (m)
any Person in an aggregate amount not to exceed $20 million at any time
outstanding.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker'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
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of
18
cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case Incurred in the ordinary course
of business; (b) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's, repairmen's and other like liens imposed by law and
arising in the ordinary course of business, in each case for sums not overdue by
more than 30 days or being contested in good faith by appropriate proceedings or
other Liens arising out of judgments or awards against such Person with respect
to which such Person shall then be proceeding with an appeal or other
proceedings for review; (c) Liens for taxes, assessments or other governmental
charges not yet due or payable or subject to penalties for non-payment or which
are being contested in good faith by appropriate proceedings; (d) deposits to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; (e) easements, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially adversely affect the value of the
property, taken as a whole, or interfere with the ordinary conduct of business
of the Company or any Restricted Subsidiary; (f) Liens securing Indebtedness
Incurred to finance the construction, purchase or lease of, or repairs,
improvements or additions to, property of such Person; provided, however, that
the Lien may not extend to any other property owned by such Person or any of its
Subsidiaries at the time the Lien is Incurred, and the Indebtedness (other than
any interest thereon) secured by the Lien may not be Incurred more than 180 days
after the later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property subject
to the Lien; (g) Liens to secure Bank Indebtedness (i) prior to the Fall-Away
Date, permitted by Section 4.03(b)(i) and (ii) following the Fall-Away Date, in
an aggregate principal amount not to exceed the amount of Bank Indebtedness
permitted by Section 4.03(b)(i) on the Fall-Away Date; (h) Liens existing on the
Closing Date; (i) Liens on property or shares of stock of another Person at the
time such other Person becomes a Subsidiary of such Person; provided, however,
that such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries; (j) Liens on property at the time such
Person or any of its Subsidiaries acquires the property, including any
acquisition by means of a merger or consolidation with or into such Person or
any Subsidiary of such Person; provided, however, that such Liens are not
created, Incurred or assumed in connection with, or in contemplation of, such
acquisition; provided further, however, that the Liens may not extend to any
other property owned by such Person or any of its Subsidiaries; (k) Liens
securing Indebtedness or other obligations of (i) a Subsidiary of such Person
owing to such Person or a wholly owned Subsidiary of such Person or (ii) of such
Person owing to a wholly owned Subsidiary of such Person; (l) Liens securing
obligations under Interest Rate Agreements so long as such obligations relate to
Indebtedness that is, and is permitted under this Indenture to be, secured by a
19
Lien on the same property securing such obligations; (m) Liens on Sellers'
Retained Interests Incurred in connection with Securitizations permitted under
this Indenture (other than Section 4.15 hereof) securing obligations in respect
of Third Party Securities in an aggregate amount at any time outstanding not in
excess of $200 million less the aggregate principal amount of Indebtedness under
the CoBank Receivables Loan Agreement; provided, however, that recourse to such
Sellers' Retained Interests is limited in a manner customary for similar
securitization transactions and the ratio of the amount of such Sellers'
Retained Interests to the amount of such Third Party Securities is not
significantly greater than the ratio of Sellers' Retained Interests to the
financed portion of assets in similar securitization transactions; (n) Liens on
assets of Restricted Subsidiaries that are Securitization Vehicles securing
Indebtedness of such Securitization Vehicles provided that prior to the
Fall-Away Date such Indebtedness is permitted by Section 4.03 (b)(viii); (o)
judgment liens in respect of judgments that do not constitute an Event of
Default; (p) Liens of CoBank on investments by the Company in the stock,
participation certificates, or allocated reserves of CoBank owned by the
Company; (q) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (f), (h), (i) and (j); provided, however, that (i) such new
Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements to or on such property) and (ii) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (1) the outstanding principal amount or, if greater,
committed amount of the Indebtedness secured by Liens described under clauses
(f), (h), (i) or (j) at the time the original Lien became a Permitted Lien under
this Indenture and (2) an amount necessary to pay any fees and expenses,
including premiums, related to such Refinancings; and (r) Liens not expressly
permitted by clauses (a) through (q) above; provided that the aggregate
principal amount of Indebtedness secured by Liens permitted by this clause (r)
(including Attributable Debt permitted by the covenant described under Section
4.16 and Section 4.03 (b)(vii)) does not at any time exceed $75 million.
"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.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
20
"Purchase Money Indebtedness" means Indebtedness (a)
consisting of the deferred purchase price of an asset, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (b) Incurred
to finance the acquisition by the Company or a Restricted Subsidiary of such
asset, including additions and improvements; provided, however, that such
Indebtedness is incurred within 180 days after the acquisition by the Company or
such Restricted Subsidiary of such asset.
"Ratings Agency" shall mean Xxxxx'x or S&P.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture including Indebtedness of the Company that Refinances
Refinancing Indebtedness; provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity either (i) no earlier than the Stated
Maturity of the Indebtedness being Refinanced or (ii) at least 91 days after the
Stated Maturity of the Securities, (b) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is equal
to or greater than the Average Life of the Indebtedness being Refinanced, (c)
such Refinancing Indebtedness is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced and (d) if the Indebtedness being Refinanced is subordinated in
right of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the same extent
as the Indebtedness being Refinanced; provided further, however, that
Refinancing Indebtedness shall not include (i) Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor that Refinances Indebtedness of
the Company or (ii) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
21
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Subsidiary
Guarantor or between Subsidiary Guarantors.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a
correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Securitization" means the transfer and sale by the Company or
a Restricted Subsidiary of accounts receivable (including Account Assets) or
inventory to a Securitization Vehicle, which Securitization Vehicle finances the
acquisition of such assets (a) with proceeds from the issuance of Third Party
Securities, (b) with Sellers' Retained Interests and (c) with proceeds from the
sale or collection of accounts receivable (including Account Assets) or
inventory previously purchased by such Securitization Vehicle.
"Securitization Vehicle" means a special purpose trust,
partnership, limited liability company or similar entity formed at the direction
of the Company for the purpose of effecting one or more Securitizations which,
in connection therewith, issues Third Party Securities.
"Sellers' Retained Interests" means the debt or equity
interests held by the Company or any Restricted Subsidiary in a Securitization
Vehicle to which accounts receivable (including Account Assets) or inventory of
the Company and the Restricted Subsidiaries have been transferred in a
Securitization, including any such debt or equity received in consideration for
the assets transferred.
"Senior Indebtedness" of the Company or any Subsidiary
Guarantor means the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Company or any Subsidiary Guarantor,
regardless of whether or not a claim for post- filing interest is allowed in
such proceedings) and fees and other amounts owing in respect of, Bank
Indebtedness and all other Indebtedness of the Company or any
22
Subsidiary Guarantor, as applicable, whether outstanding on the Closing Date or
thereafter Incurred, unless in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such obligations
are subordinated in right of payment to the Securities or such Subsidiary
Guarantor's Subsidiary Guarantee; provided, however, that Senior Indebtedness of
the Company or any Subsidiary Guarantor shall not include (a) any obligation of
the Company to any Subsidiary of the Company or of such Subsidiary Guarantor to
the Company or any other Subsidiary of the Company, (b) any liability for
Federal, state, local or other taxes owed or owing by the Company or such
Subsidiary Guarantor, as applicable, including any Subordinated Obligations of
the Company or such Subsidiary Guarantor, as applicable, (c) any accounts
payable or other liability to trade creditors arising in the ordinary course of
business (including Guarantees thereof or instruments evidencing such
liabilities), (d) any Indebtedness or obligation of the Company or such
Subsidiary Guarantor (and any accrued and unpaid interest in respect thereof)
that by its terms is subordinate or junior in any respect to any other
Indebtedness or obligation of the Company or such Subsidiary Guarantor, as
applicable, (e) any obligations with respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"S&P" means Standard and Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security upon a sale of assets or at the option of the holder
thereof upon the happening of any contingency beyond the control of the issuer
unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of a Subsidiary Guarantor has a
correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such
23
Person, (b) such Person and one or more Subsidiaries of such Person or (c) one
or more Subsidiaries of such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a Subsidiary of the Company pursuant to
the terms of this Indenture.
"Subsidiary Guarantor" means any Subsidiary that has issued a
Subsidiary Guarantee.
"Temporary Cash Investments" means any of the following: (a)
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, (b) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued or guaranteed by a bank or trust company that 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 $250,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act), (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above, (d)
investments in commercial paper, maturing not more than 270 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, (e) investments in money
market funds the investments of which consist solely of investments of the type
described in clause (a) through (d) above, and (f) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Xxxxx'x.
"Third Party Securities" means, with respect to any
Securitization, notes, bonds or other debt instruments, beneficial interests in
a trust, undivided ownership interests or other securities issued for cash
consideration by the relevant Securitization Vehicle to banks, investors or
other financing sources (other than the Company and its Subsidiaries) the
proceeds of which are used to finance, in whole or part, the purchase by such
Securitization Vehicle of accounts receivable (including Account Assets) or
inventory in a Securitization.
24
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx.
77aaa-77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) Xxxxx Products Co., Inc.,
Cheese & Protein International LLC, Conroe ACS Company, LLC, ESSV, LLC, Xxxxxx
Pig Co. LC, Iowa River Feeds, LLC, Lakes Trading Group, Inc., Land O'Lakes
Capital Trust I, Land O'Lakes S.A. (FKA Pozbac S.A.), Land O'Lakes/Animal
Nutrition Specialties Co., LTD., LOLFC, LLC, LOL Finance Co., Xxxxxx Lakes
Nutrition, LLC, New Feeds, LLC, Northern Country Feeds, LLC, Nutri-Tech Feeds,
LLC, River Falls Country Store, LLC, Sery ICC Paslek, Soybean Research
Foundation, Inc., (b) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors in the manner provided below and (c) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that either
(i) the Subsidiary to be so designated has total Consolidated assets of $1,000
or less or (ii) if such Subsidiary has Consolidated assets greater than $1,000,
then such designation would be permitted under Section 4.04. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (a) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (b) no Default shall have occurred and be continuing. Any
such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an
25
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
For the purposes of determining voting power of Voting Stock, the voting rights
of which vary, Voting Stock shall be deemed to have the number of votes equal to
the number of votes such Voting Stock was entitled to at the most recent vote of
shareholders.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ---------------
"Affiliate Transaction".......................................................... 4.07(a)
"Appendix"....................................................................... Preamble
"Bankruptcy Law"................................................................. 6.01
"beneficial ownership"........................................................... 1.01
"Change of Control Offer"........................................................ 4.08(b)
"covenant defeasance option"..................................................... 8.01(b)
"Custodian"...................................................................... 6.01
"Definitive Securities".......................................................... Appendix A
"Event of Default"............................................................... 6.01
"Exchange Securities"............................................................ Preamble
"Fall-Away Date"................................................................. 4.17
"Global Securities".............................................................. Appendix A
"Guaranteed Obligations"......................................................... 10.01
"incorporated provision"......................................................... 11.01
"Initial Securities"............................................................. Preamble
"legal defeasance option"........................................................ 8.01(b)
"Notice of Default".............................................................. 6.01
26
Defined in
Term Section
---- ---------------
"Offer".......................................................................... 4.06(b)
"Offer Amount"................................................................... 4.06(c)(ii)
"Offer Period"................................................................... 4.06(c)(ii)
"Original Securities"............................................................ Preamble
"Paying Agent"................................................................... 2.04
"protected purchaser"............................................................ 2.08
"Purchase Date".................................................................. 4.06(c)(i)
"Registration Agreement"......................................................... Appendix A
"Registered Exchange Offer"...................................................... Appendix A
"Registrar"...................................................................... 2.04
"Restricted Payment"............................................................. 4.04(a)
"Securities Custodian"........................................................... Appendix A
"Successor Company".............................................................. 5.01(a)
"Transfer Restricted Security" Exhibit A
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
27
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall be unlimited. The Securities may be issued
in one or more series. All Securities of any one series shall be substantially
identical except as to denomination.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a resolution of the Board of Directors and
(b) (i) set forth or determined in the manner provided in an Officers'
Certificate or (ii) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such
Additional Securities (which shall
28
distinguish the Additional Securities of the series from Securities of
any other series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which may be in an unlimited aggregate principal amount;
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set
forth in Exhibit A hereto and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of the Appendix in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the depositary for such Global Security or a nominee
thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of Directors,
a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the indenture
supplemental hereto setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The (a) Original Securities and the Trustee's
certificate of authentication and (b) any Additional Securities (if issued as
Transfer Restricted Securities) and the Trustee's certificate of authentication
shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements
29
required by law, stock exchange rule, agreements to which the Company or any
Subsidiary Guarantor is subject, if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Company). Each
Security shall be dated the date of its authentication. The Securities shall be
issuable only in registered form without interest coupons and only in
denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Company. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent, and the term "Registrar" includes any co-registrars. The Company
initially appoints the Trustee as (i) Registrar and Paying Agent in connection
with the Securities and (ii) the Securities Custodian with respect to the Global
Securities.
(b) The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of
30
any such agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Company and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. On or prior
to each due date of the principal of and interest on any Security, the Company
shall deposit with the Paying Agent (or if the Company or a Wholly Owned
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due. 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 Holders or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on the Securities, and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.06. 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 Holders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are
31
presented to the Registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's request. The Company
may require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section. The Company shall not be required to make and the Registrar need
not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or any Securities for a period of 15 days before a selection
of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Subsidiary Guarantors, the Trustee, the Paying
Agent, and the Registrar may deem and treat the Person in whose name a Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Securities)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, any Subsidiary
Guarantor, the Trustee, the Paying Agent, or the Registrar shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
notifies the Company or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (b) gives such
notice prior to the Company or the Trustee having notice that the Security has
been acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a "protected purchaser") and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Trustee to
32
protect the Company, the Trustee, the Paying Agent and the Registrar from any
loss that any of them may suffer if a Security is replaced. The Company and the
Trustee may charge the Holder for their expenses in replacing a Security. In the
event any such mutilated, lost, destroyed or wrongfully taken Security has
become or is about to become due and payable, the Company in its discretion may
pay such Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 11.06, a Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities and deliver them in exchange for temporary Securities upon
surrender of such temporary Securities at the office or agency of the Company,
without charge to the Holder.
SECTION 2.11. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered
33
for registration of transfer, exchange, payment or cancelation and shall dispose
of canceled Securities in accordance with its customary procedures or deliver
canceled Securities to the Company pursuant to written direction by an Officer.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation. The Trustee shall not
authenticate Securities in place of canceled Securities other than pursuant to
the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Company in issuing
the Securities may use "CUSIP" and ISIN numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" and 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 Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be
34
redeemed pro rata or by lot or by a method that the Trustee in its sole
discretion shall deem to be fair and appropriate. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but
not more than 60 days before a date for redemption of Securities, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the
Securities being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
35
(b) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date;
provided, however, that if the redemption date is after a regular record date
and on or prior to the interest payment date, the accrued interest shall be
payable to the Holder of the redeemed Securities registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00
a.m., New York City time, on the redemption date, the Company shall deposit with
the Paying Agent (or, if the Company or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest on all Securities or portions thereof to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Company to the Trustee for
cancelation. On and after the redemption date, interest shall cease to accrue on
Securities or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent funds sufficient to pay the principal of, plus
accrued and unpaid interest on the Securities to be redeemed, unless the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture.
36
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC for public availability and
provide the Trustee and Holders and prospective Holders (upon request) within 15
days after it files them with the SEC, copies of its annual report and the
information, documents and other reports that are specified in Sections 13 and
15(d) of the Exchange Act; provided, that with respect to the Company's Form
10-Q for the quarter ended September 30, 2001, (i) the Company will provide such
Form 10-Q to the Trustee and Holders and prospective Holders (upon request)
within 45 days after the Closing Date and will not be required to file it with
the SEC and (ii) such Form 10-Q shall not be required to include separate
financial statements of Land O'Lakes Farmland Feed LLC or any predecessor
thereof. Notwithstanding the foregoing, at any time that (i) the Company is not
subject to the reporting requirements of Sections 13 or 15(d) of the Exchange
Act and (ii) the SEC will not accept filings from companies not subject to such
requirements, the Company may satisfy its obligations under the preceding
sentence by providing the required annual reports, information, documents and
other reports to the Trustee and Holders and prospective Holders (upon request).
The Company also shall comply with the other provisions of Section 314(a) of the
TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto, the Consolidated Coverage Ratio would be
greater than 2.5 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness in an aggregate principal amount not to
exceed $1,200 million less, without duplication, (1) the aggregate
amount of all prepayments of principal applied to permanently reduce
any such Indebtedness and (2) Indebtedness Incurred pursuant to clause
(b)(viii)(1) below;
(ii) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or any other Restricted Subsidiary;
provided, however, that (1) any subsequent issuance or transfer of any
Capital Stock or any other event that results in any Restricted
Subsidiary which is the holder of such Indebtedness ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such
Indebtedness
37
(except to the Company or a Restricted Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Indebtedness by the
issuer thereof and (2) if the Company or a Restricted Subsidiary that
is a Subsidiary Guarantor is the obligor on such Indebtedness and such
Indebtedness is owed to and held by a Restricted Subsidiary that is not
a Subsidiary Guarantor or by the Company, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations of the Company with respect to the Securities or such
Restricted Subsidiary with respect to its Subsidiary Guarantee, as
applicable;
(iii) the Capital Securities in an aggregate amount not in
excess of $200 million outstanding at any time;
(iv) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Subsidiary Guarantees, (2)
outstanding on the Closing Date (other than the Indebtedness described
in clauses (i), (ii) and (iii) above), (3) consisting of Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iv) (including Indebtedness that is Refinancing Indebtedness)
or Section 4.03(a) and (4) consisting of Guarantees by the Company of
Indebtedness of any Restricted Subsidiary and by any Restricted
Subsidiary of Indebtedness of the Company or any other Restricted
Subsidiary;
(v) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred in
contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Subsidiary of or was
otherwise acquired by the Company); provided, however, that on the date
that such Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness pursuant
to Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (v) and (2) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (v);
(vi) Indebtedness (1) in respect of performance bonds,
bankers' acceptances, letters of credit and surety or appeal bonds
provided by the Company and the Restricted Subsidiaries in the ordinary
course of their business, and (2) under Hedging Obligations that are
Incurred in the ordinary course of business (A) for the purpose of
fixing or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be outstanding, (B)
for the purpose of fixing or hedging currency exchange rate risk with
respect
38
to any currency exchanges or (C) for the purpose of fixing or hedging
commodity price risk with respect to any commodity purchases;
(vii) Purchase Money Indebtedness, Capitalized Lease
Obligations and Attributable Debt (in an aggregate principal amount not
in excess of $50 million at any time outstanding);
(viii) (1) Indebtedness of Restricted Subsidiaries that are
Securitization Vehicles in respect of Third Party Securities in an
aggregate amount not to exceed $200 million at any time outstanding and
(2) Indebtedness consisting solely of Liens on Sellers' Retained
Interests in connection with Securitizations permitted by this
Indenture securing obligations in respect of Third Party Securities
permitted to be Incurred under clause (1) above;
(ix) Indebtedness consisting of loans from Agriliance and
MoArk in the ordinary course of business for cash management purposes
in an aggregate principal amount not to exceed $20 million outstanding
at any time, which loans shall not be outstanding for more than 30
days; or
(x) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an aggregate principal amount on the date of
Incurrence that, when added to all other Indebtedness Incurred pursuant
to this clause (x) and then outstanding, shall not exceed $75 million.
(c) Notwithstanding the foregoing, the Company shall not Incur
any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are
used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund
or refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may Incur pursuant to this Section shall not be deemed to be exceeded solely as
a result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the Closing Date shall be treated as
Incurred pursuant to Section 4.03(b)(i), (ii) Indebtedness permitted by this
Section 4.03 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section 4.03 permitting such
Indebtedness and (iii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section, the Company, in
its sole discretion,
39
shall classify such Indebtedness and only be required to include the amount of
such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend, make any distribution on or in
respect of its Capital Stock or make any similar payment (including any payment
of Patronage or any payment in connection with any merger or consolidation
involving the Company or any Subsidiary of the Company) to the direct or
indirect holders of its Capital Stock, except (1) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock or Preferred
Stock), (2) dividends or distributions payable to the Company or a Restricted
Subsidiary (and, if such Restricted Subsidiary has shareholders other than the
Company or other Restricted Subsidiaries, to its other shareholders on a pro
rata basis) and (3) dividends paid in respect of the Capital Securities, (ii)
purchase, repurchase, redeem, retire, make any revolvement payment or otherwise
acquire for value any Capital Stock of the Company or any Restricted Subsidiary
held by Persons other than the Company or a Restricted Subsidiary (it being
understood that amounts owed from Members that can be offset against Patronage
payable to such Members shall be deemed not to be covered by this clause (ii)),
(iii) purchase, repurchase, redeem, retire, defease or otherwise acquire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment any Subordinated Obligations or any Indebtedness owed to the trust
entity that has issued the Capital Securities (other than the purchase,
repurchase, redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition) or (iv) make any Investment (other than a
Permitted Investment) in any Person (any dividend, distribution, payment,
purchase, redemption, repurchase, defeasance, retirement, other acquisition or
Investment described in the foregoing items (i), (ii), (iii) and (iv) being
herein referred to as a "Restricted Payment") if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the
Board of Directors) declared or
40
made subsequent to the Closing Date would exceed the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from January 1,
2001 to the end of the most recent fiscal quarter for which
consolidated financial statements of the Company are publicly
available prior to the date of such Restricted Payment (or, in
case such Consolidated Net Income shall be a deficit, minus
100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Closing Date (other
than an issuance or sale to (x) a Subsidiary of the Company or
(y) an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries);
(C) the amount by which Indebtedness of the Company
or its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Closing Date of
any Indebtedness of the Company or its Restricted Subsidiaries
issued after the Closing Date which is convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash or the Fair Market
Value of other property distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange);
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans or
advances or other transfers of assets to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries or (y)
the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments; and
(E) an amount equal to the cash distributions
received by the Company or any of its Restricted Subsidiaries
from any other Person (other than the Company or a Restricted
Subsidiary of the Company) during the period (treated as one
accounting period) from the beginning of the fiscal quarter
during which the Closing Date occurs to the end of the most
recent fiscal quarter for which consolidated financial
statements of
41
the Company are publicly available prior to the date of such
Restricted Payment.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or other trust established by the Company
or any of its Subsidiaries); provided, however, that (1) such purchase,
repurchase, redemption, retirement or other acquisition for value shall
be excluded in the calculation of the amount of Restricted Payments and
(2) the Net Cash Proceeds from such sale applied in the manner set
forth in this clause (i) shall be excluded from the calculation of
amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations of the Company made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Indebtedness of
the Company that is permitted to be Incurred pursuant to Section
4.03(b); provided, however, that such prepayment, repayment, purchase,
repurchase, redemption, retirement, defeasance or other acquisition for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations from Net Available Cash to the extent
permitted by Section 4.06; provided, however, that such prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or
other acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividends would
have complied with Section 4.04(a); provided, however, that such
dividends shall be included in the calculation of the amount of
Restricted Payments;
(v) (1) the distribution or payment of Patronage in an
aggregate amount not to exceed $30 million or (2) the distribution or
payment of the Minimum Patronage Amount; provided, however, that such
distributions or payments will be included in the calculation of the
amount of Restricted Payments; or
42
(vi) dividends paid by the Company in an aggregate amount not
to exceed $100,000 per annum with respect to its Preferred Stock issued
and outstanding as of the Closing Date in accordance with the terms
thereof on the Closing Date; provided, however, that such dividends
will be included in the calculation of the amount of Restricted
Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (b) make any loans or advances to the Company or (c) transfer any of
its property or assets to the Company, except in each case described in the
foregoing (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the date
on which such Restricted Subsidiary was acquired by the Company (other
than Indebtedness Incurred as consideration in, in contemplation of, or
to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Company) and outstanding on
such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this Section 4.05 or
this clause (iii) or contained in any amendment to an agreement
referred to in clause (i) or (ii) of this Section 4.05 or this clause
(iii); provided, however, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment are no less
favorable to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
(iv) in the case of clause (c) of this Section 4.05, any
encumbrance or restriction (1) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract or (2) contained in
security agreements securing Indebtedness of a Restricted Subsidiary to
the extent such encumbrance or restriction restricts the transfer of
the property subject to such security agreements;
43
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition; and
(vi) customary provisions in joint venture and similar
agreements entered into in the ordinary course of business.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition, (ii) at
least 80% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash and (iii) an amount equal to 100%
of the Net Available Cash from such Asset Disposition is applied by the Company
(or such Restricted Subsidiary, as the case may be) (1) first, to the extent the
Company elects (or is required by the terms of any Indebtedness), to prepay,
repay, purchase, repurchase, redeem, retire, defease, or otherwise acquire for
value Bank Indebtedness of the Company or Indebtedness (other than obligations
in respect of Preferred Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company and other
than obligations in respect of Disqualified Stock) within 270 days after the
later of the date of such Asset Disposition or the receipt of such Net Available
Cash; (2) second, to the extent of the balance of Net Available Cash after
application in accordance with clause (1), to the extent the Company or such
Restricted Subsidiary elects, to reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary) within
270 days from the later of such Asset Disposition or the receipt of such Net
Available Cash; (3) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (1) and (2), to make an Offer
(as defined in Section 4.06(b)) to purchase Securities pursuant to and subject
to the conditions of Section 4.06(b); provided, however, that if the Company
elects (or is required by the terms of any other Senior Indebtedness), such
Offer may be made ratably to purchase the Securities and other Senior
Indebtedness of the Company, and (4) fourth, to the extent of the balance of
such Net Available Cash after application in accordance with clauses (1), (2)
and (3),for any general corporate purpose permitted by the terms of this
Indenture; provided, however, that in connection with any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Indebtedness pursuant to clause (1), (3) or (4) above, the Company
or such Restricted Subsidiary shall retire such Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid, purchased, repurchased, redeemed,
retired, defeased or
44
otherwise acquired for value. Notwithstanding the foregoing provisions of this
Section 4.06(a), the Company and the Restricted Subsidiaries shall not be
required to apply any Net Available Cash in accordance with this Section 4.06(a)
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this Section 4.06(a) exceeds
$10 million.
For the purposes of Section 4.06(a)(ii), the following are
deemed to be cash: (A) the assumption of Indebtedness of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted
Subsidiary (other than obligations in respect of Disqualified Stock and
Preferred Stock of a Restricted Subsidiary that is Subsidiary Guarantor) and the
release of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition, (B) securities received
by the Company or any Restricted Subsidiary from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into cash and
(C) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (C), not to exceed a cumulative amount of $50.0 million
(with the Fair Market Value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value).
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 4.06(a)(iii)(3), the Company shall be
required (i) to purchase Securities tendered pursuant to an offer by the Company
for the Securities (the "Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest thereon, if any, to the date of purchase
(subject to the right of Holders of record on the relevant date to receive
interest due on the relevant interest payment date) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
Section 4.06(c) and (ii) to purchase other Senior Indebtedness of the Company on
the terms and to the extent contemplated thereby (provided that in no event
shall the Company offer to purchase such other Senior Indebtedness of the
Company at a purchase price in excess of 100% of its principal amount (without
premium), plus accrued and unpaid interest thereon. If the aggregate purchase
price of Securities (and other Senior Indebtedness) tendered pursuant to the
Offer is less than the Net Available Cash allotted to the purchase of the
Securities (and other Senior Indebtedness), the Company shall apply the
remaining Net Available Cash in accordance with Section 4.06(a)(iii)(4). The
Company shall not be required to make an Offer for Securities (and other Senior
Indebtedness) pursuant to Section 4.06(a)(iii)(3) if the Net Available Cash
available therefor (after application of the proceeds as provided in clauses (1)
and (2) of Section 4.06(a)(iii)) is less than $10 million for any particular
Asset Disposition (which lesser amount shall be carried forward for purposes of
determining whether an Offer is required with respect to the Net Available Cash
from any subsequent Asset Disposition).
45
(c) (i) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorating as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum shall
include (1) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports), (2) a description of material
developments in the Company's business subsequent to the date of the latest of
such reports, and (3) if material, appropriate pro forma financial information)
and all instructions and materials necessary to tender Securities pursuant to
the Offer, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall deliver
to the Trustee an Officers' Certificate as to (1) the amount of the Offer (the
"Offer Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the amount delivered by
the Company to the Trustee is greater than the purchase price of the Securities
(and other Senior Indebtedness) tendered, the Trustee shall deliver the excess
to the Company immediately after the expiration of the Offer Period for
application in accordance with this Section 4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company
46
receives not later than one Business Day prior to the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security which was delivered by the Holder for
purchase and a statement that such Holder is withdrawing his election to have
such Security purchased. If at the expiration of the Offer Period the aggregate
principal amount of Securities and any other Senior Indebtedness included in the
Offer surrendered by holders thereof exceeds the Offer Amount, the Company shall
select the Securities and other Senior Indebtedness to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Company so
that only Securities and other Senior Indebtedness in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(iv) At the time the Company delivers Securities to the
Trustee which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction or series of
related transactions (including, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in
the event such Affiliate Transaction involves an aggregate amount in excess of
$10 million, (1) are set forth in writing and (2) have been approved by a
majority of the members of the Board of Directors having no personal stake in
such Affiliate Transaction, other than as a Member of the Company generally, and
(iii) that, in the event that such Affiliate Transaction involves an amount in
excess of $25 million, have been determined by a nationally recognized appraisal
or investment banking firm to be fair, from a financial standpoint, to the
Company and its Restricted Subsidiaries.
47
(b) The provisions of Section 4.07(a) shall not prohibit (i)
any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements approved by
the Board of Directors, (iii) loans or advances to employees in the ordinary
course of business in accordance with past practices of the Company, but in any
event not to exceed $5 million in the aggregate outstanding at any one time,
(iv) the payment of reasonable fees to directors of the Company and its
Subsidiaries who are not employees of the Company or its Subsidiaries, (v) any
transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, (vi) any agreement as in effect as of the Closing Date
on the terms described in the Offering Memorandum or any amendment or
replacement agreement thereto (so long as any such amendment or replacement
agreement is not disadvantageous to the Holders of the Securities in any
material respect); or (vii) Securitizations permitted by Section 4.03 and
Section 4.06; (viii) loans to or from Agriliance and MoArk in the ordinary
course of business for cash management purposes in an aggregate principal amount
not to exceed $20 million outstanding at any time, which loans shall not be
outstanding for more than 30 days; (ix) the provision by the Company or a
Restricted Subsidiary in the ordinary course of business of corporate services
(such as legal services and information technology services) and leasing of the
Company's employees, consistent with past practices, to Affiliates in which the
Company owns Capital Stock; or (x) any licensing or similar agreement entered
into in the ordinary course of business relating to the use of intellectual
property between the Company or a Restricted Subsidiary and Affiliates in which
the Company owns Capital Stock.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company purchase all or any
part of such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), in accordance
with the terms contemplated in Section 4.08(b); provided, however, that
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase the Securities pursuant to this Section 4.08 in the event
that it has exercised its right to redeem all the Securities under paragraph 5
of the Securities. In the event that at the time of such Change of Control the
terms of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section 4.08, then prior to the mailing of the notice to
Holders provided for in Section 4.08(b) below but in any event within 30 days
following any Change of Control, the Company shall (i) repay in full all Bank
Indebtedness or, if doing so will allow the purchase of Securities, offer to
repay in full all Bank Indebtedness and repay the Bank Indebtedness of each
lender who has accepted such offer or (ii) obtain the requisite consent under
the agreements governing the Bank Indebtedness to permit the repurchase of the
Securities as provided for in Section 4.08(b).
48
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Company
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest
payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancelation,
and the Company shall pay the purchase price plus accrued and unpaid interest to
the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in Section 4.08(b) applicable to a Change of Control Offer made by the Company
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
49
(f) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section 4.08. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(g) Prior to any Change of Control Offer, the Company shall
deliver to the Trustee an Officers' Certificate stating that all conditions
precedent contained herein to the right of the Company to make such offer have
been complied with.
(h) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Cooperative Status. The Company shall maintain
its status as a cooperative under both Subchapter T of the Code and Minnesota
Law.
SECTION 4.12. Future Subsidiary Guarantors. The Company shall
cause (a) at any time that any Bank Indebtedness is outstanding, each Subsidiary
of the Company that Incurs or enters into a Guarantee of any Bank Indebtedness
and (b) at any time that no Bank Indebtedness is outstanding, each domestic and,
to the extent no material adverse tax consequences would result therefrom,
foreign Restricted Subsidiary of the Company that Incurs any Indebtedness, to
become a Subsidiary Guarantor, and, if
50
applicable, execute and deliver to the Trustee a supplemental indenture in the
form of Exhibit C pursuant to which such Subsidiary will Guarantee payment of
the Securities.
SECTION 4.13. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Permitted Business.
SECTION 4.14. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of a Restricted Subsidiary (other than
any such transaction resulting in a Lien that constitutes a Permitted Lien), and
shall not permit any Restricted Subsidiary, directly or indirectly, to issue or
sell or otherwise dispose of any shares of its Capital Stock except: (a) to the
Company or a Restricted Subsidiary; (b) if, immediately after giving effect to
such issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary, (c) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect thereto would have been permitted
to be made under Section 4.04 if made on the date of such issuance, sale or
other disposition (and such Investment shall be deemed to be an Investment for
the purposes of such covenant); or (d) if, immediately after giving effect to
such issuance, sale or other disposition, such Restricted Subsidiary would
continue to constitute a Restricted Subsidiary. The proceeds of any sale of such
Capital Stock permitted hereby shall be treated as Net Available Cash from an
Asset Disposition and shall be applied in accordance with Section 4.06.
SECTION 4.15. Limitation on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
permit to exist any Lien of any nature whatsoever on any of its property or
assets (including Capital Stock of a Restricted Subsidiary), whether owned at
the Closing Date or thereafter acquired, other than Permitted Liens, without
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such obligations
are so secured.
SECTION 4.16. Limitation on Sale/Leaseback Transactions. The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (a) the
Company or such Restricted Subsidiary would be entitled to (i) Incur
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale/Leaseback Transaction pursuant to Section 4.03 and (ii) create a Lien on
such property securing such Attributable Debt without equally and ratably
securing the Securities pursuant to Section 4.15, (b) the gross proceeds
received by the Company or such Restricted Subsidiary in connection with such
Sale/Leaseback Transaction are at least equal to the Fair Market Value of such
property and (c) the transfer of such property is permitted by, and the Company
applies the
51
proceeds of such transaction in compliance with, Section 4.06; provided,
however, that after the Fall-Away Date the requirements of clauses (a)(i) and
(c) above shall no longer apply.
SECTION 4.17. Fall-Away of Covenants. After the date (such
date, the "Fall-Away Date") on which (a) the Securities have been assigned an
Investment Grade rating by both Rating Agencies; (b) if the Investment Grade
rating is BBB-, in the case of S&P, or Baa3, in the case of Xxxxx'x, it shall
not be accompanied by either (i) in the case of S&P, a negative outlook, credit
watch negative or the equivalent thereof or (ii) in the case of Xxxxx'x, a
negative outlook, a review for possible downgrade or the equivalent thereof; (c)
no Default or Event of Default has occurred and is continuing; and (d) the
Company has delivered an Officers' Certificate to the Trustee certifying that
the conditions set forth in clauses (a), (b) and (c) above are satisfied and
notwithstanding that the Securities may later cease to have an Investment Grade
rating by either or both Rating Agencies or that the Investment Grade rating may
later be accompanied by either items (i) or (ii) set forth in clause (b) above,
the Company and the Restricted Subsidiaries will no longer be subject to the
following provisions of this Indenture: Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.13, 4.14 and 5.01(a)(iii).
ARTICLE 5
Successor Company
SECTION 5.01. (a) When Company May Merge or Transfer Assets.
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
52
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such transaction 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 transaction had not occurred.
The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, but in the case of a conveyance, transfer or lease of all or
substantially all the Company's assets the obligation to pay the principal of
and interest on the Securities will remain in full force and effect.
In addition, except in a transaction as a result of which the
Subsidiary Guarantor would be released from its Subsidiary Guarantee as provided
in this Indenture, the Company will not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the
"Successor Guarantor") will be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia, and such Person (if not such Subsidiary
Guarantor) shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any Restricted Subsidiary as a result of such transaction
as having been Incurred by
53
the Successor Guarantor or such Restricted Subsidiary at the time of
such transaction), no Default shall have occurred and be continuing;
and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
(c) Notwithstanding the foregoing, any Restricted Subsidiary
may consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Subsidiary Guarantor.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(a) the Company defaults in any payment of interest on any
Security when the same becomes due and payable and such default
continues for a period of 30 days;
(b) the Company (i) defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration or
otherwise or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities;
(c) the Company or any Restricted Subsidiary fails to comply
with Section 5.01;
(d) the Company or any Restricted Subsidiary fails to comply
with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12,
4.13, 4.14, 4.15 or 4.16 (other than a failure to purchase Securities
when required under Section 4.06 or 4.08) and such failure continues
for 30 days after a Notice of Default specified below;
(e) the Company or any Restricted Subsidiary fails to comply
with any of its agreements in the Securities or this Indenture (other
than those referred to in (a), (b), (c) or (d) above) and such failure
continues for 60 days after a Notice of Default specified below;
54
(f) Indebtedness of the Company or any Restricted Subsidiary
is not paid within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders thereof
because of a default and the total amount of such Indebtedness unpaid
or accelerated exceeds $15 million or its foreign currency equivalent
at the time;
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(i) the rendering of any judgment or decree for the payment of
money (other than judgments which are covered by enforceable insurance
policies issued by reputable and creditworthy insurance companies for
which coverage has been acknowledged in writing) in excess of $15
million or its foreign currency equivalent against the Company or a
Restricted Subsidiary if (i) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or (ii) there is
a period of 60 days following the entry of such judgment or decree
55
during which such judgment or decree is not discharged, waived or the
execution thereof stayed; or
(j) any Subsidiary Guarantee ceases to be in full force and
effect (except as contemplated by the terms thereof) or any Subsidiary
Guarantor or Person acting by or on behalf of such Subsidiary Guarantor
denies or disaffirms its obligations under this Indenture or any
Subsidiary Guarantee and such Default continues for 10 days after
receipt of a Notice of Default specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (d), (e) or (j) above is not an Event
of Default until the Trustee notifies the Company or the Holders of at least 25%
in principal amount of the outstanding Securities notify the Company and the
Trustee of the Default and the Company or the Subsidiary Guarantor, as
applicable, does not cure such Default within the time specified in clauses (d),
(e) or (j) after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company and the
Trustee, or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Company, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company occurs, the principal of and interest on all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holders. The Holders of a majority in
principal amount of
56
the Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
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 of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Security, (b) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
the terms of this Indenture or (c) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
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SECTION 6.06. Limitation on Suits. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
then due and owing (together with interest on overdue principal and (to the
extent lawful) on any unpaid interest at the rate provided for in the
Securities) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Company, any Subsidiary or
Subsidiary Guarantor, their creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person
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performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
Company nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Subsidiary Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
Except with respect to Sections 4.02 and 4.09, the Trustee
shall have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article Four.
Delivery of reports, information and documents to the Trustee
under Article Four is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect of any action
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taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company or any Subsidiary
Guarantor in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (f), (g), (h), (i)
or (j) or of the identity of any Significant Subsidiary unless either (a) a
Trust Officer shall have actual knowledge thereof or (b) the Trustee shall have
received notice thereof in accordance with Section 11.02 hereof from the
Company, any Subsidiary Guarantor or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a trust officer. Except in the case of a Default in
payment of principal of or interest on any Security (including payments pursuant
to the mandatory redemption provisions of such Security, if any), the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of
Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this
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Indenture, and in any event prior to June 15 in each year, the Trustee shall
mail to each Holder a brief report dated as of such May 15 that complies with
Section 313(a) of the TIA if and to the extent required thereby. The Trustee
shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Subsidiary Guarantor, jointly and severally shall
indemnify the Trustee against any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by or in connection with the administration
of this trust and the performance of its duties hereunder. The Trustee shall
notify the Company of any claim for which it may seek indemnity promptly upon
obtaining actual knowledge thereof; provided, however, that any failure so to
notify the Company shall not relieve the Company or any Subsidiary Guarantor of
its indemnity obligations hereunder. The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company's expense
in the defense. Such indemnified parties may have separate counsel and the
Company and the Subsidiary Guarantors, as applicable shall pay the fees and
expenses of such counsel; provided, however, that the Company shall not be
required to pay such fees and expenses if it assumes such indemnified parties'
defense and, in such indemnified parties' reasonable judgment, there is no
conflict of interest between the Company and the Subsidiary Guarantors, as
applicable, and such parties in connection with such defense. The Company need
not reimburse any expense or indemnify against any loss, liability or expense
incurred by an indemnified party through such party's own wilful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee.
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Without prejudice to any other rights available to the Trustee under applicable
law, when the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(g) or (h) with respect to the Company, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may
resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by
the Holders of a majority in principal amount of the Securities and such Holders
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) 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. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless
the Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Security for at least six months
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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(f) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA, subject to its right to apply for a stay
of its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) all outstanding Securities (other than Securities
replaced or paid pursuant to
65
Section 2.08) have been canceled or delivered to the Trustee for cancelation or
(ii) all outstanding Securities have become due and payable, whether at maturity
or as a result of the mailing of a notice of redemption pursuant to Article 3
hereof, and the Company irrevocably deposits with the Trustee funds in an amount
sufficient or U.S. Government Obligations, the principal of and interest on
which will be sufficient, or a combination thereof sufficient, in the written
opinion of a nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), to pay the principal of, premium
(if any) and interest on the outstanding Securities when due at maturity or upon
redemption of, including interest thereon to maturity or such redemption date
(other than Securities replaced or paid pursuant to Section 2.08) and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 8.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16
and the operation of Section 5.01(a)(iii), 5.01(a)(iv), 6.01(d), 6.01(f),
6.01(g) (with respect to Significant Subsidiaries of the Company only), 6.01(h)
(with respect to Significant Subsidiaries of the Company only) and 6.01(i)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option. In
the event that the Company terminates all of its obligations under the
Securities and this Indenture by exercising its legal defeasance option or its
covenant defeasance option, the obligations under the Subsidiary Guarantees
shall each be terminated simultaneously with the termination of such
obligations.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d),
6.01(f), 6.01(g) (with respect to Significant Subsidiaries only), 6.01(h) (with
respect to Significant Subsidiaries only), 6.01(i) (with respect to Restricted
Subsidiaries only) or because of the failure of the Company to comply with
clauses (iii) and (iv) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article 8 shall survive
66
until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. (a) Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of, and premium (if any) and
interest on the Securities when due at maturity or redemption, as the
case may be, including interest thereon to maturity or such redemption
date;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal, premium, if
any, and interest , if any, when due on all the Securities to maturity
or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(1) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
67
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors, and the Trustee and the Paying Agent
shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
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SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of principal of or interest on, any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. (a) Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to add additional Guarantees with respect to the
Securities or to secure the Securities;
(v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(vi) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(vii) to secure the Securities;
69
(viii) to make any change that does not adversely affect the
rights of any Holder; or
(ix) to provide for the issuance of the Exchange Securities,
or Additional Securities
It shall not be necessary for the consent of the Holders under this Section 9.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Holder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Securities). However, without the consent of each Holder affected, an
amendment may not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3 or paragraph 5 of the Securities;
(v) make any Security payable in money other than that stated
in the Security;
(vi) impair the right of any Holder to receive payment of
principal of, and interest on, such Holder's Securities on or after the
due dates thereof or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities;
70
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(viii) modify the Subsidiary Guarantees in any manner adverse
to the Holders.
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, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date on which the Trustee or the Company receives the
requisite number of consents. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective upon the (i)
receipt by the Company or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Company
and the Trustee.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
71
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Company
and the Subsidiary Guarantors enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. (a) Subsidiary Guarantees. Each Subsidiary
Guarantor hereby jointly and severally irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Company under this Indenture (including
obligations to the Trustee) and the Securities, whether for payment of principal
of, interest on or premium, if any, in respect of the Securities and all other
monetary obligations of the Company under this Indenture and the Securities and
(ii) the
72
full and punctual performance within applicable grace periods of all other
obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Each Subsidiary
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Subsidiary Guarantor, and that each such Subsidiary Guarantor shall remain bound
under this Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand
of payment from and protest to the Company of any of the Guaranteed Obligations
and also waives notice of protest for nonpayment. Each Subsidiary Guarantor
waives notice of any default under the Securities or the Guaranteed Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be affected by
(i) the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Securities
or any other agreement; (iv) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (v) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of
such Subsidiary Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which
it may be entitled to have its obligations hereunder divided among the
Subsidiary Guarantors, such that such Subsidiary Guarantor's obligations would
be less than the full amount claimed. Each Subsidiary Guarantor hereby waives
any right to which it may be entitled to have the assets of the Company first be
used and depleted as payment of the Company's or such Subsidiary Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by such
Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any
right to which it may be entitled to require that the Company be sued prior to
an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held
for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 10.02
and 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of
73
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Subsidiary Guarantor or would otherwise operate as a discharge of any
Subsidiary Guarantor as a matter of law or equity.
(f) Each Subsidiary Guarantor agrees that its Subsidiary
Guarantee shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of,
interest or premium (if any) on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of
any other right which any Holder or the Trustee has at law or in equity against
any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of, interest or premium (if any) on any Guaranteed Obligation
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary obligations of the Company to the Holders
and the Trustee.
(h) Each Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any Guaranteed Obligations guaranteed hereby until payment in full of all
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall
74
forthwith become due and payable by such Subsidiary Guarantor for the purposes
of this Section 10.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor
shall execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the purpose
of this Indenture.
SECTION 10.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor
shall terminate and be of no further force or effect and such Subsidiary
Guarantor shall be deemed to be released from all obligations under this Article
10 upon (i) the merger or consolidation of such Subsidiary Guarantor with or
into any Person, (ii) the sale by the Company or any Subsidiary of the Company
(or any pledgee of the Company) of the Capital Stock of such Subsidiary
Guarantor or (iii) the sale of substantially all the assets of such Subsidiary
Guarantor, where, after such merger, consolidation or sale, such Subsidiary
Guarantor is no longer a Subsidiary of the Company; provided, however, that each
such merger, consolidation or sale (or, in the case of a sale by such a pledgee,
the disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b). In addition, at any time that Bank Indebtedness is outstanding,
if any Subsidiary of the Company is released from its Guarantee of, and all
pledges and security interest granted in connection with, the Credit Agreement,
then such Subsidiary shall, at the option of the Company, be released and
relived of any obligations under its Subsidiary Guarantee. A Subsidiary
Guarantee by a Subsidiary of the Company will be automatically released upon (x)
such Subsidiary being designated and Unrestricted Subsidiary in compliance with
Section 4.04 or (y) such Subsidiary ceasing to be a Subsidiary of the Company as
a result of any foreclosure on any pledge or security interest securing Bank
Indebtedness or other exercise of remedies in respect thereof if such Subsidiary
is released from its Guarantee of, and all pledges and security interests
granted in connection with, the Credit Agreement. At the request of the Company,
the Trustee shall execute and deliver an appropriate instrument evidencing such
release (in the form provided by the Company).
75
SECTION 10.03. Successors and Assigns. This Article 10 shall
be binding upon each Subsidiary Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 10
at law, in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or
waiver of any provision of this Article 10, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 10.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.12 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 10
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
SECTION 10.07. Non-Impairment. The failure to endorse a
Subsidiary Guarantee on any Security shall not affect or impair the validity
thereof.
76
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
SECTION 11.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention of: Xxxxxx X. Xxxxxxx
with a copy to:
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention of: Xxxx Xxxxxx
if to the Trustee:
U.S. Bank N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention of: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be
mailed, first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
77
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, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company, upon the
reasonable request of the Trustee, shall furnish to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(c) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Subsidiary Guarantor shall be
78
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company or any of the
Subsidiary Guarantors, shall not have any liability for any obligations of the
Company or any of the Subsidiary Guarantors under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company and
each Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
79
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
Schedule 1
LAND O'LAKES, INC. LAND O'LAKES HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Vice President & Title: Vice President/
Chief Financial Officer Treasurer
ADVANCED BUSINESS CONCEPTS LOL HOLDINGS II, INC.
INTERNATIONAL, LLC
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: President Title: Treasurer
FARBEST, INC. LAND O'LAKES INTERNATIONAL
DEVELOPMENT CORPORATION
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Secretary/Treasurer Title: President
FMR, INC. L.L. OLDS SEED COMPANY
By: /s/ Xxxx Mill By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxx
Title: Secretary Title: Secretary
FORAGE GENETICS, INC. LOL POWER, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Secretary
GOLDEN VALLEY DAIRY PRODUCTS MAPLELEAF, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxx
Title: Secretary Title: Secretary/Treasurer
80
Schedule 1
MICHIGAN STATE SEED COMPANY QC INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxx
Title: Secretary Title: Secretary
NORTH COAST FERTILIZER II, INC. REALTY LOL, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Vice President/
Secretary
NORTHWEST FOOD PRODUCTS COMPANY, INC. RESEARCH SEEDS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Vice President/Secretary Title: Secretary
NORTHWEST FOOD PRODUCTS SEED RESEARCH, INC.
TRANSPORTATION, LLC
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxx Xxxxxx
Title: Treasurer Title: Secretary
QC HOLDINGS INC. SEEDBIOTICS, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxxxx
Title: Secretary Title: Chief Manager
QC, INC. ACS STORES, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxx XxXxxxxxxx
Title: Secretary Title: Member Representative
81
Schedule 1
ALLIANCE MILD PRODUCTS, LLC GOLDEN STATE FEEDS, LLC
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Vice President Finance Title: Assistant Secretary
Secretary/Treasurer
AMERICA'S COUNTSTORES, LLC LAND O'LAKES FARMLAND FEED LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxx XxXxxxxxxx
Title: Assistant Secretary Title: President
AMERICA'S COUNTRY STORES MILK PRODUCTS, LLC
HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxx -----------------------------
------------------------------ Name: Xxxxxx Xxxxxx
Name: Xxxx Xxxxxx Title: Treasurer
Title: Assistant Secretary
COASTAL AG-DEVELOPMENT, INC. NUTRA-BLEND, LLC
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxxx
Title: Secretary/Treasurer Title: Assistant Secretary
DAIRY MANAGEMENT SERVICES, L.L.P. PMI AGRICULTURE, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Manager Title: Member
PM NUTIRITION COMPANY, LLC PURINA XXXXX, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
82
Schedule 1
PMI NUTRITION INTERNATIONAL, LLC XXXXXX PRODUCTS, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
U.S. Bank N.A., as Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means X.X. Xxxxxx Securities Inc., SPP
Capital Partners, LLC, SunTrust Capital Markets, Inc., Tokyo-Mitsubishi
International plc and U.S. Bancorp Xxxxx Xxxxxxx, Inc.
"Purchase Agreement" means the Purchase Agreement dated
November 8, 2001, among the Company, the Subsidiary Guarantors and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
2
"Registered Exchange Offer" means an offer by the Company,
pursuant to a the Registration Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for their Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Agreement" means (a) the Exchange and
Registration Rights Agreement dated November 8, 2001, among the Company, the
Subsidiary Guarantors and the Initial Purchasers and (b) any other similar
Exchange and Registration Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (a) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Company to
the Trustee, and (b) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Company in connection with the offer and sale of Initial Securities
pursuant to [a] the Registration Agreement.
3
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.2 Other Definitions
Term: Defined in Section:
---- ------------------
"Agent Members".........................................................................................2.1(c)
"IAI Global Security"...................................................................................2.1(b)
"Global Security".......................................................................................2.1(b)
"Regulation S Certificate"..............................................................................2.1(b)
"Regulation S Global Security"..........................................................................2.1(b)
"Regulation S Permanent Global Security.................................................................2.1(b)
"Regulation S Temporary Global Security.................................................................2.1(b)
"Rule 144A Global Security".............................................................................2.1(b)
2. The Securities
2.1 Form and Dating
(a) The Initial Securities issued on the date hereof will be
(i) offered and sold by the Company pursuant to a Purchase Agreement and (ii)
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Company from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") without
interest coupons and bearing the Global Securities Legend and Restricted
Securities Legend, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Securities Custodian, and registered in
the name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
Regulation S Global Securities shall be issued initially in the form of one or
more temporary Global Securities (the "Regulation S Temporary Global
Securities") without interest coupons and bearing the Global Securities Legend
and the Restricted Securities Legend and registered in the name of the
Depositary or a nominee of the Depositary. Beneficial interests in a Regulation
S Temporary Global Security will be exchangeable for beneficial interests in a
single permanent Global Security (the "Regulation S Permanent Global Security",
together with the Regulation S Temporary Global Security, the "Regulation S
Global Securities") on
4
or after the expiration of the Restricted Period upon the receipt by the Trustee
or its agent of a certificate certifying that the Holder of the beneficial
interest in the Regulation S Temporary Global Security is a non-United States
Person within the meaning of Regulation S or by United States persons who
purchased those interests pursuant to an exemption from, or in transactions not
subject to, the registration requirements of the Securities Act (a "Regulation S
Certificate"), substantially in the form set forth in Exhibit D hereto. One or
more global securities in definitive, fully registered form without interest
coupons and bearing the Global Securities Legend and the Restricted Securities
Legend (collectively, the "IAI Global Security") shall also be issued on the
Closing Date, deposited with the Securities Custodian, and registered in the
name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture to
accommodate transfers of beneficial interests in the Securities to IAIs
subsequent to the initial distribution. Beneficial ownership interests in the
Regulation S Global Security shall be transferred only to non-United States
persons under Regulation S, qualified institutional buyers under Rule 144A or
institutional accredited investors. The Rule 144A Global Security, the IAI
Global Security and the Regulation S Global Securities are each referred to
herein as a "Global Security" and are collectively referred to herein as "Global
Securities", provided, that the term "Global Security" when used in Sections
2.1(b)(third paragraph), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include
any Security in global form issued in connection with a Registered Exchange
Offer. The aggregate principal amount of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee and on the schedules thereto as hereinafter
provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by two Officers, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its
5
Agent Members, the operation of customary practices of such Depositary governing
the exercise of the rights of a holder of a beneficial interest in any Global
Security.
(d) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Company signed by two Officers (a)
Original Securities for original issue on the date hereof in an aggregate
principal amount of $350,000,000, (b) subject to the terms of this Indenture,
Additional Securities in an unlimited aggregate principal amount and (c) the
Exchange Securities for issue only in a Registered Exchange Offer pursuant to a
Registration Agreement and for a like principal amount of Initial Securities
exchanged pursuant thereto. Such order shall specify the amount of the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
outstanding at any time is unlimited.
2.3 Transfer and Exchange. (a) Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to the Registrar
with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse
side of the Initial Security); or
6
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (x) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit E or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal
to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not
been previously exchanged for certificated securities pursuant to
Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the
7
Company in the form of an Officers' Certificate, a new Global Security
in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the IAI
Global Security to a transferee who takes delivery of such interest through the
Regulation S Global Security, whether before or after the expiration of the
Restricted Period, shall be made only upon receipt by the Trustee of a
certification in the form provided on the reverse of the Initial Securities from
the transferor to the effect that such transfer is being made in accordance with
Regulation S or (if available) Rule 144 under the Securities Act and that, if
such transfer is being made prior to the expiration of the Restricted Period,
the interest transferred shall be held immediately thereafter through Euroclear
or Clearstream. In the case of a transfer of a beneficial interest in either the
Regulation S Global Security or the Rule 144A Global Security for an interest in
the IAI Global Security, the transferee must furnish a signed letter
substantially in the form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities,
8
such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set forth on the
reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable
exemption from registration under the Securities Act, as the case may
be) and such other procedures as may from time to time be adopted by
the Company.
(d) Restrictions on Transfer of Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period, interests in the
Regulation S Temporary Global Security may only be held through Euroclear or
Clearstream. During the Restricted Period, beneficial ownership interests in the
Regulation S Temporary Global Security may only be sold, pledged or transferred
through Euroclear or Clearstream in accordance with the Applicable Procedures
and only (1) to the Company, (2) so long as such security is eligible for resale
pursuant to Rule 144A, to a person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI purchasing for
its own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Temporary Global Security to a transferee who takes
delivery of such interest through the Rule 144A Global Security or the IAI
Global Security shall be made only in accordance with Applicable Procedures and
upon receipt by the Trustee of a written certification from the transferor of
the beneficial interest in the form provided on the reverse of the Initial
Security to the effect that such transfer is being made to (1) a QIB within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A or
(2) an IAI purchasing for its own account, or for the account of such an IAI, in
a minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the Restricted
Period. In the case of a transfer of a beneficial interest in the Regulation S
Global Security for an interest in the IAI Global Security, the transferee must
furnish a signed letter substantially in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Temporary Global Security shall
be exchangeable for beneficial interests in the Regulation S Permanent
Global Security upon certification that those interests are owned
either by non-United States persons or by United States persons who
purchased those interests pursuant to an exemption from, or in
transactions not subject to the registration requirements of the
Securities Act of 1933. The Regulation S Permanent Global Security
shall be transferable in accordance with applicable law and the other
terms of this Indenture. Interests in the Regulation S
9
Permanent Global Security may be held directly through Euroclear or
Clearstream, if they are participants in those systems, or indirectly
through organizations that are participants in those systems. Upon the
expiration of the Restricted Period, interests in the Regulation S
Permanent Global Security may be held through organizations other than
Euroclear or Clearstream that are DTC participants. Each of Euroclear
and Clearstream will appoint a DTC participant to act as its depositary
for the interests in each Regulation S Global Security that are held
within DTC for the account of each settlement system on behalf of its
participants.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"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 THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES 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" 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 THAT XXXXX
00
XXXXXXX XXX XXXXXX XXXXXX 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 THE SECURITIES
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."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After a transfer of any Original or Additional
Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Original or Additional
Securities, as the case may be, all requirements pertaining to the
Restricted Securities Legend on such Original or Additional Securities
shall cease to apply and the requirements that any such Original or
Additional Securities be issued in global form shall continue to apply.
11
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which
Holders of such Original or Additional Securities are offered Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall
continue to apply.
(vi) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08 and 9.05 of
this Indenture).
12
(iii) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
13
2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or with
the Trustee as Securities Custodian pursuant to Section 2.1 or issued in
connection with a Registered Exchange Offer shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a "clearing agency" registered under the Exchange Act,
and a successor depositary is not appointed by the Company within 90 days of
such notice or after the Company becomes aware of such cessation, or (ii) an
Event of Default has occurred and is continuing or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF ORIGINAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
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 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
2
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" 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 THAT OCCUR OUTSIDE 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
THE SECURITIES 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.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. $__________
8 3/4% Senior Note due 2011
CUSIP No. ______
ISIN No.___
LAND O'LAKES, INC., a Minnesota cooperative corporation,
promises to pay to [Cede & Co.], or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto] on [ ], [ ].
Interest Payment Dates: May 15 and November 15.
Record Dates: [ ] and [ ].
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LAND O'LAKES, INC.,
by
______________________________
Name:
Title:
by
______________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK N.A.,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
________________
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF ORIGINAL SECURITY]
8 3/4% Senior Note due 2011
1. Interest
(a) LAND O'LAKES, INC., a Minnesota cooperative corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company shall pay interest semiannually on May 15 and November 15 of
each year. Interest on the Securities shall accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from November 14, 2001 until the principal hereof is
due. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
(b) Additional Interest. The Holder of this Security is
entitled to the benefits of an Exchange and Registration Rights Agreement, dated
as of November 8, 2001, among the Company, the Subsidiary Guarantors and the
Initial Purchasers named therein (the "Registration Agreement"). Capitalized
terms used in this paragraph (b) but not defined herein have the meanings
assigned to them in the Registration Agreement. If the Registered Exchange Offer
is not completed or a Shelf Registration Statement is not declared effective on
or before the date that is 225 days after November 14, 2001, the annual interest
rate borne by the Securities will be increased by 0.25% per annum with an
additional 0.25% per annum increase each 90 days thereafter up to a maximum
increase of 1.0% per annum until the Registered Exchange Offer is completed or
the Shelf Registration Statement is declared effective. For purposes of the
foregoing, "Transfer Restricted Securities" means (i) each Initial Security
until the date on which such Initial Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Initial Security until the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance
with a Shelf Registration Statement or (iii) each Initial Security until the
date on which such Initial Security is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
2. Method of Payment
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 1 or November 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender
4
for payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Company will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of the
Paying Agent, except that, at the option of the Company, payment of interest may
be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. BANK N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of November 14, 2001 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior unsecured obligations of the
Company. This Security is one of the [Original] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and any Exchange Securities and Private Exchange Securities are
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, issue or sell
5
shares of capital stock of such Restricted Subsidiaries, enter into or permit
certain transactions with Affiliates, create or incur Liens and make asset
sales. The Indenture also imposes limitations on the ability of the Company and
each Subsidiary Guarantor to consolidate or merge with or into any other Person
or convey, transfer or lease all or substantially all its property.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have jointly and
severally unconditionally guaranteed the Guaranteed Obligations on a senior
basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Company prior to November 15, 2006.
Thereafter, the Securities shall be redeemable at the option of the Company, in
whole or from time to time in part, on not less than 30 nor more than 60 days
prior notice, at the following redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on November 15 of the years set forth below:
REDEMPTION
YEAR PRICE
--------------------------------------------------------------
2006 104.775%
2007 102.917%
2008 101.458%
2009 and thereafter 100.000%
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities (or portions thereof) to
6
be redeemed on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of
Control and Asset Dispositions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest to the date of repurchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date that is on or prior to the
date of purchase) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look to the Company for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
7
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal of, and interest on, the Securities to redemption
or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency; (ii) to comply
with Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; (iv) to add Subsidiary
Guarantees with respect to the Securities; (v) to secure the Securities; (vi) to
add additional covenants or to surrender rights and powers conferred on the
Company; (vii) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (viii) to make any
change that does not adversely affect the rights of any Holder; or (ix) to
provide for the issuance of the Exchange Securities or Additional Securities.
14. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any)
8
or interest when due, no Holder may pursue any remedy with respect to the
Indenture or the Securities unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) Holders of at least
25% in principal amount of the outstanding Securities have requested the Trustee
in writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
9
18. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT 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.
20. CUSIP and ISIN Numbers
The Company has caused CUSIP and ISIN numbers to be printed on
the Securities and has directed the Trustee to use CUSIP and ISIN 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 Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
_______________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
11
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the
Securities Act of 1933 and such Security shall be
held
12
immediately after the transfer through Euroclear or
Clearstream until the expiration of the Restricted
Period (as defined in the Indenture); or
(6) [ ] to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements; or
(7) [ ] pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however,
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
__________________________
Your Signature
Signature Guarantee:
Date: ___________________ ________________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
________________________________________________________________________________
13
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ __________________________________
NOTICE: To be executed by
an executive officer
14
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
15
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED
BY THE COMPANY PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF
CONTROL) OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SECURITY PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE
INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR
OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
2
No. $__________
8 3/4% Senior Note due 2011
CUSIP No. ______
ISIN No.___
LAND O'LAKES, INC., a Minnesota corporation, promises to pay
to [Cede & Co.], or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto] on [ ], [ ].
Interest Payment Dates: May 15 and November 15.
Record Dates: [ ] and [ ].
3
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LAND O'LAKES, INC.,
by
___________________________________
Name:
Title:
by
___________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK N.A.,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
___________________________________
Authorized Signatory
_______________
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
4
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
8 3/4% Senior Note due 2011
1. Interest.
LAND O'LAKES, INC., a Minnesota cooperative corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
shall pay interest semiannually on May 15 and November 15 of each year. Interest
on the Securities shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly provided
for, from November 14, 2001 until the principal hereof is due. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 15 or November 15 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal,
premium and interest) shall be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company or any successor
depositary. The Company will make all payments in respect of a certificated
Security (including principal, premium, if any, and interest), at the office of
the Paying Agent, except that, at the option of the Company, payment of interest
may be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. BANK N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent
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or Registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of November 14, 2001 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ss. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior unsecured obligations of the
Company. This Security is one of the [Exchange] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for the
Initial Securities pursuant to the Indenture. The Original Securities, the
Additional Securities and the Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens and make Asset Sales. The Indenture also imposes limitations on
the ability of the Company and each Subsidiary Guarantor to consolidate or merge
with or into any other Person or convey, transfer or lease all or substantially
all of its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have,
jointly and severally, unconditionally guaranteed the Guaranteed Obligations on
a senior basis pursuant to the terms of the Indenture.
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5. Optional Redemption
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Company prior to November 15, 2006.
Thereafter, the Securities shall be redeemable at the option of the Company, in
whole or from time to time in part, on not less than 30 nor more than 60 days
prior notice, at the following redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on November 15 of the years set forth below:
REDEMPTION
YEAR PRICE
--------------------------------------------------------------
2006 104.375%
2007 102.917%
2008 101.458%
2009 and thereafter 100.000%
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest to the date of repurchase (subject
to the right of Holders of record on the relevant record date to
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receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Company
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look to the Company for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of
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the Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) any default may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company [, the Subsidiary
Guarantors] and the Trustee may amend the Indenture or the Securities (i) to
cure any ambiguity, omission, defect or inconsistency; (ii) to comply with
Article 5 of the Indenture; (iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities; (iv) to add Subsidiary
Guarantees with respect to the Securities; (v) to secure the Securities; (vi) to
add additional covenants or to surrender rights and powers conferred on the
Company; (vii) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (viii) to make any
change that does not adversely affect the rights of any Holder; or (ix) to
provide for the issuance of the Exchange Securities or Additional Securities.
14. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding
Securities may rescind any such acceleration with respect to the Securities and
its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities are given the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee
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or of exercising any trust or power conferred on the Trustee. The Trustee,
however, may refuse to follow any direction that conflicts with law or the
Indenture or that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability. Prior
to taking any action under the Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
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19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT 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.
20. CUSIP and ISIN Numbers
The Company has caused CUSIP and ISIN numbers to be printed on
the Securities and has directed the Trustee to use CUSIP and ISIN 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 Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL { ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SECURITY PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE
INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR
OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR]
(the "New Guarantor"), a subsidiary of LAND O'LAKES,
INC. (or its successor), a Minnesota cooperative
corporation (the "Company"), [EXISTING GUARANTORS]
and U.S. BANK N.A., a national banking association,
as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company and [OLD GUARANTORS] (the "Existing
Guarantors") has heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of November __, 2001, providing for the issuance of
an aggregate principal amount of up to $[ ] of [ ]% Senior Notes due 2011 (the
"Securities");
WHEREAS Section 4.12 of the Indenture provides that under
certain circumstances the Company is required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Company's obligations
under the Securities pursuant to a Subsidiary Guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all the Existing Guarantors, to unconditionally
guarantee the Guaranteed Obligations on the terms and subject to the conditions
set forth in Article 10 of the Indenture and to be bound by all other applicable
provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture
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shall form a part of the Indenture for all purposes, and every holder of
Securities heretofore or hereafter authenticated and delivered shall be bound
hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
___________________________________
Name:
Title:
LAND O'LAKES, INC.,
by
___________________________________
Name:
Title:
[EXISTING GUARANTORS],
by
______________________________________
Name:
Title:
U.S. BANK N.A., as Trustee,
by
______________________________________
Name:
Title:
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Re: Land O'Lakes, Inc.
8 3/4% Senior Notes Due 2011 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Securities was not made to a person in
the United States;
(b) either (1) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, (2) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904
of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we
confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________________
Authorized Signature
EXHIBIT E
Form of
Transferee Letter of Representation
Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the [ ]% Senior Notes due 2011 (the "Securities") of Land O'Lakes,
Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any
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predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("Rule 144A"), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that is purchasing for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Securities of $250,000, or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation of
the Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Company and the Trustee.
TRANSFEREE:___________________,
by:__________________________
