Exhibit 4.1
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AMERICAN SEAFOODS CORPORATION.
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FORM OF INDENTURE
Dated as of , 2003
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Xxxxx Fargo Bank Minnesota, National Association,
Trustee
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Table of Contents
Page
ARTICLE 1 Definitions And Incorporation By Reference
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Other Definitions.............................................26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.............27
SECTION 1.04. Rules of Construction.........................................27
ARTICLE 2 The Notes
SECTION 2.01. The Notes; Amount Unlimited...................................28
SECTION 2.02. Form and Dating...............................................29
SECTION 2.03. Execution and Authentication..................................29
SECTION 2.04. Registrar and Paying Agent....................................30
SECTION 2.05. Paying Agent To Hold Money in Trust...........................30
SECTION 2.06. Holder Lists..................................................30
SECTION 2.07. Transfer and Exchange.........................................31
SECTION 2.08. Replacement Notes.............................................31
SECTION 2.09. Outstanding Notes.............................................32
SECTION 2.10. Temporary Notes...............................................32
SECTION 2.11. Cancellation..................................................32
SECTION 2.12. CUSIP Numbers.................................................32
SECTION 2.13. Tax Treatment.................................................33
SECTION 2.14. Maturity......................................................33
ARTICLE 3 Redemption
SECTION 3.01. Notices to Trustee............................................33
SECTION 3.02. Selection of Notes 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. Notes Redeemed in Part........................................35
SECTION 3.07. Redemption of Notes...........................................35
ARTICLE 4 Covenants
SECTION 4.01. Payment of Notes; Interest Deferral...........................36
SECTION 4.02. Reports and Other Information.................................37
SECTION 4.03. Limitations on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock........................38
SECTION 4.04. Limitation on Restricted Payments.............................43
SECTION 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries..................................................47
SECTION 4.06. Asset Sales...................................................49
SECTION 4.07. Transactions with Affiliates..................................51
SECTION 4.08. Liens.........................................................53
SECTION 4.09. Change of Control.............................................54
SECTION 4.10. Compliance Certificate........................................55
SECTION 4.11. Further Instruments and Acts..................................55
SECTION 4.12. Future Guarantors.............................................55
SECTION 4.13. Limitation on Layering........................................55
SECTION 4.14. Subsequent Issuance...........................................56
ARTICLE 5 Successor Issuer
SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All
Assets........................................................57
ARTICLE 6 Defaults And Remedies
SECTION 6.01. Events of Default.............................................59
SECTION 6.02. Acceleration..................................................61
SECTION 6.03. Other Remedies................................................61
SECTION 6.04. Waiver of Past Defaults.......................................62
SECTION 6.05. Control by Majority...........................................62
SECTION 6.06. Limitation on Suits...........................................62
SECTION 6.07. Rights of Holders to Receive Payment..........................63
SECTION 6.08. Collection Suit by Trustee....................................63
SECTION 6.09. Trustee May File Proofs of Claim..............................63
SECTION 6.10. Priorities....................................................63
SECTION 6.11. Undertaking for Costs.........................................63
SECTION 6.12. Waiver of Stay or Extension Law...............................64
ARTICLE 7 Trustee
SECTION 7.01. Duties of Trustee.............................................64
SECTION 7.02. Rights of Trustee.............................................65
SECTION 7.03. Individual Right of Trustee...................................66
SECTION 7.04. Trustee's Disclaimer..........................................66
SECTION 7.05. Notice of Defaults............................................66
SECTION 7.06. Reports by Trustee to Holders.................................66
SECTION 7.07. Compensation and Indemnity....................................66
SECTION 7.08. Replacement of Trustee........................................67
SECTION 7.09. Successor Trustee by Merger...................................68
SECTION 7.10. Eligibility; Disqualification.................................68
SECTION 7.11. Preferential Collection of Claims Against Issuer..............68
ARTICLE 8 Discharge Of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Notes; Defeasance...................69
SECTION 8.02. Conditions to Defeasance......................................70
SECTION 8.03. Application of Trust Money....................................71
SECTION 8.04. Repayment to Issuer...........................................71
SECTION 8.05. Indemnity for Government Obligations..........................71
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SECTION 8.06. Reinstatement.................................................71
ARTICLE 9 Amendments
SECTION 9.01. Without Consent of Holders....................................71
SECTION 9.02. With Consent of Holders.......................................73
SECTION 9.03. Compliance with Trust Indenture Act...........................74
SECTION 9.04. Revocation and Effect of Consent and Waivers..................74
SECTION 9.05. Notation on or Exchange of Notes..............................74
SECTION 9.06. Trustee To Sign Amendments....................................74
ARTICLE 10 Guarantees
SECTION 10.01. Guarantee.....................................................75
SECTION 10.02. Limitation on Liability.......................................77
SECTION 10.03. Successors and Assigns........................................77
SECTION 10.04. No Waiver.....................................................77
SECTION 10.05. Modification..................................................78
SECTION 10.06. Execution of Supplemental Indenture for Future
Guarantors....................................................78
ARTICLE 11 Subordination Of The Guarantees
SECTION 11.01. Agreement To Subordinate......................................78
SECTION 11.02. Liquidation, Dissolution Bankruptcy...........................78
SECTION 11.03. Default on Designated Senior Indebtedness of a Guarantor......79
SECTION 11.04. When Distribution Must Be Paid Over...........................80
SECTION 11.05. Subrogation...................................................80
SECTION 11.06. Relative Rights...............................................80
SECTION 11.07. Subordination May Not Be Impaired by a Guarantor..............80
SECTION 11.08. Right of Trustee and Paying Agent.............................80
SECTION 11.09. Distribution or Notice to Representative......................81
SECTION 11.10. Article 11 Not To Prevent Events of Default or Limit
Right To Accelerate...........................................81
SECTION 11.11. Trustee Entitled To Rely......................................81
SECTION 11.12. Trustee To Effectuate Subordination...........................81
SECTION 11.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Guarantor.....................................82
SECTION 11.14. Reliance by Holders of Guarantor Senior Indebtedness
of a Guarantor on Subordination Provisions....................82
SECTION 11.15. Defeasance....................................................82
ARTICLE 12 Pledge
SECTION 12.01. Grant of Security Interest....................................82
SECTION 12.02. Additional Collateral.........................................83
SECTION 12.03. Release of Collateral.........................................83
SECTION 12.04. Trustee To Effectuate Pledge..................................83
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ARTICLE 13 Miscellaneous
SECTION 13.01. Trust Indenture Act Controls..................................83
SECTION 13.02. Notices.......................................................83
SECTION 13.03. Communication by Holders with Other Holders...................84
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............84
SECTION 13.05. Statements Required in Certificate or Opinion.................84
SECTION 13.06. When Notes Disregarded........................................85
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar..................85
SECTION 13.08. Legal Holidays................................................85
SECTION 13.09. GOVERNING LAW.................................................85
SECTION 13.10. No Recourse Against Others....................................85
SECTION 13.11. Successors....................................................85
SECTION 13.12. Multiple Originals............................................86
SECTION 13.13. Table of Contents; Headings...................................86
Exhibit A - Form of Global Note
Exhibit B - Form of Supplemental Indenture for Guarantors
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INDENTURE, dated as of [ ], 2003, among AMERICAN SEAFOODS CORPORATION, a
Delaware corporation (the "Issuer"), each subsidiary of the Issuer listed on the
signature pages hereto and Xxxxx Fargo Bank Minnesota, National Association, 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 (i) the Issuer's [ ]% Notes due
2013 issued on the date hereof (the "Original Notes"), and (ii) any Additional
Notes (as defined herein) that may be issued on any Issue Date.
Except as otherwise provided herein, $[ ,000,000] in aggregate principal
amount of Original Notes shall be initially issued on the date hereof. Subject
to the conditions and in compliance with the covenants set forth herein, the
Issuer may issue Additional Notes from time to time.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01. Definitions.
"Acceleration Forbearance Period" means the period commencing on the date
when the Trustee or the Holders of at least 25% in principal amount of the Notes
outstanding provide the Issuer with a notice of their intention to accelerate
the Notes upon expiration of the Acceleration Forbearance Period and expiring on
the earliest of the date on which (a) 90 days shall have elapsed following the
commencement of such Acceleration Forbearance Period, (b) the Designated Senior
Indebtedness of any Guarantor shall be due and payable in full, or shall have
been declared to be due in full, or there shall have been a demand for payment
in full thereof, or any enforcement or collection action shall have been
commenced with respect thereto, (c) holders of any Indebtedness of the Issuer or
one or more of the Guarantors, in each case to the extent not constituting
Guarantor Senior Indebtedness, exceeding $[7,500,000] in the aggregate, shall
have commenced any enforcement or collection action with respect to such
Indebtedness and (d) an Event of Default described in Section 6.01(h) or (i)
shall have occurred; provided, however, that in the event that there has been
any prior Acceleration Forbearance Period in the immediately preceding
twelve-month period, the duration of the Acceleration Forbearance Period shall
be automatically reduced by the cumulative duration of all prior Acceleration
Forbearance Periods that occurred during the preceding twelve-month period (it
being understood that the Acceleration Forbearance Period may terminate
immediately after commencing pursuant to this proviso).
"Acquired Indebtedness" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Restricted Subsidiary of such
specified Person; and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person,
in each case, 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 such Person, or such asset was acquired
by such Person, as applicable.
"Adjusted EBITDA" for any period means the Consolidated Net Income for such
period plus, to the extent deducted in calculating such Consolidated Net Income,
Consolidated Interest Expense, provision for all taxes (whether or not paid,
estimated or accrued) based on income, profits or capital, Consolidated
Depreciation and Amortization Expense, minority interest in income or loss of
consolidated entities, and all other non-cash charges or non-cash losses.
"Adjusted Fixed Charge Coverage Ratio" means, with respect to any Person
for any twelve-month period ended on March 31, the ratio of (1) Adjusted EBITDA
of such Person for the fifteen-month period ended on March 31, multiplied by 4/5
to (2) the Fixed Charges of such Person for the twelve-month period ended on
March 31. In the event that the Issuer or any of its Restricted Subsidiaries
Incurs or redeems any Indebtedness (including, without limitation, Indebtedness
under the Notes and Senior Credit Documents and the redemption of Indebtedness
on the Issue Date) or issues or redeems Preferred Stock subsequent to the
commencement of the fifteen- or twelve-month period, as applicable, for which
the Adjusted EBITDA or Consolidated Interested Expense are being calculated for
the purpose of determining the Adjusted Fixed Charge Coverage Ratio but prior to
the event or to the end of such applicable period for which the Adjusted EBITDA
or Consolidated Interest Expense are being calculated for the purpose of
determining the Adjusted Fixed Charge Coverage Ratio (the "Calculation Date"),
then the Adjusted EBITDA and the Consolidated Interest Expense shall be
calculated giving pro forma effect to such Incurrence or redemption of
Indebtedness, or such issuance or redemption of Preferred Stock, as if the same
had occurred at the beginning of the applicable period.
For purposes of making the computation of Adjusted EBITDA and Consolidated
Interest Expense of a Person to determine the Adjusted Fixed Charge Coverage
Ratio of such Person, Investments, acquisitions, dispositions, mergers,
consolidations and discontinued operations (as determined in accordance with
GAAP), in each case with respect to an operating unit of a business, that have
been made by the Issuer or any of its Restricted Subsidiaries during the
fifteen- or twelve-month reference period, as applicable, or subsequent to such
reference period and on or prior to or simultaneously with the Calculation Date
shall be calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, discontinued operations, mergers and consolidations
(and the reduction of any associated fixed charge obligations and the change in
Adjusted EBITDA resulting therefrom ) had occurred on the first day of the
applicable period. If since the beginning of the fifteen- or twelve-month
reference period, as applicable, any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Issuer or any Restricted
Subsidiary since the beginning of such period) shall have made any Investment,
acquisition, disposition, discontinued operation, merger or consolidation, in
each case with respect to an operating unit of a business, that would have
required adjustment pursuant to this definition, then for the purposes of
computing the Adjusted Fixed Charge Coverage Ratio, the Adjusted EBITDA and the
Consolidated Interest Expense shall be calculated giving pro forma effect
thereto such fifteen- or twelve-month reference period, as applicable, as
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if such Investment, acquisition, disposition, discontinued operation, merger or
consolidation had occurred at the beginning of the applicable period.
For purposes of this definition, whenever pro forma effect is to be given
to any transaction, the pro forma calculations shall be made in good faith by
responsible financial or accounting officer of the Issuer. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term in excess of 12 months). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Issuer to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
For purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional
rate chosen as the Issuer may designate. Any such pro forma calculation may
include adjustments appropriate, in the reasonable determination of the Issuer
as set forth in an Officers' Certificate, to reflect operating expense
reductions reasonably expected to result from any acquisition or merger.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. 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 Issuer.
"ASG" means American Seafoods Group LLC, a Delaware limited liability
company and a wholly-owned subsidiary of Holdings.
"ASLP" means American Seafoods, L.P., a Delaware limited partnership.
"ASLP Exchange and Registration Rights Agreement" means the agreement,
dated as of [______], 2003, among the Issuer, Holdings and ASLP, pursuant to
which, among other things, the holders of ASLP units can exchange ASLP units for
shares of Common Stock and Notes represented by IDSs.
"Asset Sale" means:
(i) the sale, conveyance, transfer or other disposition (whether in a
single transaction or a series of related transactions) of property or assets
(including by way of a Sale/Leaseback
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Transaction) of the Issuer or any Restricted Subsidiary (each referred to in
this definition as a "disposition"); or
(ii) the issuance or sale of Equity Interests of any Restricted
Subsidiary (other than to the Issuer or another Restricted Subsidiary)(whether
in a single transaction or a series of related transactions), in each case,
other than directors' qualifying shares, or in the case of a foreign Restricted
Subsidiary, to the extent required by applicable law,
in each case other than:
(a) a disposition of Cash Equivalents or Investment Grade Securities or
obsolete or worn out equipment in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of the
Issuer in a manner permitted pursuant to Section 5.01 or any disposition that
constitutes a Change of Control;
(c) any Restricted Payment or Permitted Investment that is permitted to be
made, and is made, under Section 4.04;
(d) any disposition of assets with an aggregate Fair Market Value of less
than $1,000,000;
(e) any disposition of property or assets by a Restricted Subsidiary to
the Issuer or by the Issuer or a Restricted Subsidiary to a Restricted
Subsidiary;
(f) any exchange of like property pursuant to Section 1031 of the Internal
Revenue Code for use in a Similar Business;
(g) sales of assets received by the Issuer upon the foreclosure on a Lien
or other settlement of obligations owing to the Issuer;
(h) any sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary;
(i) sales of inventory, equipment, accounts receivable or other assets in
the ordinary course of business consistent with past practices and sales of
equipment upon termination of a contract with a client entered into in the
ordinary course of business pursuant to the terms of such contract;
(j) any issuance or sale of Equity Interests in Holdings in connection
with the exercise of (A) exchange warrants by Holders of ASLP units to acquire
Notes and Common Stock of the Issuer and (B) management options to acquire units
in ASLP; and
(k) the exchange of assets held by any Restricted Subsidiary of the Issuer
(including without limitation by way of merger, consolidation or sale and
leaseback transaction) for assets held by any Person or entity (including Equity
Interests of such Person or entity), provided that (i) the assets received by
such Restricted Subsidiary in any such exchange will immediately constitute a
Permitted Investment in a Similar Business or will immediately constitute, be
part of,
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or be used in a Similar Business which is conducted in a Restricted Subsidiary;
(ii) any such assets are of a comparable fair market value to the assets
exchanged as determined in good faith by the Board of Directors of the Issuer,
and (iii) in the case of an exchange involving a vessel, the assets received by
such Restricted Subsidiary must represent a vessel which shall be substantially
similar in all material respects to the vessel exchanged, including with respect
to fishing and processing capability and the ability under applicable regulatory
requirements to fish.
"Board of Directors" means the Board of Directors of the Issuer or any
committee thereof duly authorized to act on behalf of such Board.
"Business Day" means a day other than a Saturday, Sunday or other day on
which banking institutions in New York State are authorized or required by law
to close.
"Capital Stock" means:
(i) in the case of a corporation, corporate stock, including, without
limitation, corporate stock represented by IDSs and corporate stock outstanding
upon the separation of IDSs into the securities represented thereby;
(ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(iv) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalized Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized and reflected as a liability on
a balance sheet in accordance with GAAP.
"Cash Equivalents" means:
(i) U.S. dollars and foreign currency exchanged into U.S. dollars within
180 days;
(ii) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof;
(iii) certificates of deposit, time deposits and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any commercial bank having capital and surplus in excess of
$500,000,000 and whose long-term debt is rated at least "A" or the equivalent
thereof by Xxxxx'x or S&P;
(iv) repurchase obligations for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above;
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(v) commercial paper issued by a corporation (other than an Affiliate of
the Issuer) rated at least "A-2" or the equivalent thereof by Xxxxx'x or S&P and
in each case maturing within one year after the date of acquisition;
(vi) investment funds investing at least 95% of their assets in
securities of the types described in clauses (i) through (v) above;
(vii) readily marketable direct obligations issued by any state of the
United States or any political subdivision thereof having one of the two highest
rating categories obtainable from either Xxxxx'x or S&P; and
(viii) Indebtedness or preferred stock issued by Persons with a rating of
"A" or higher from S&P or "A-2" or higher from Xxxxx'x.
"Change of Control" means:
(i) the sale, lease, transfer or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all assets of the Issuer and its Restricted Subsidiaries, taken as
a whole, to any person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) [other than the Permitted Holders];
(ii) the adoption of a plan relating to the liquidation or dissolution of
the Issuer or Holdings (provided that this clause (ii) shall not apply with
respect to Holdings at any time that the Issuer owns 100% of the Equity
Interests of Holdings);
(iii) the direct or indirect acquisition by any person or group (as such
term is used in Section 13(d)(3) of the Exchange Act) other than the Permitted
Holders of more than 45% of the beneficial ownership (as such term is defined in
Rules 13d-3 and 13d-5 under the Exchange Act) of the voting power of the voting
stock of the Issuer, by way of purchase, merger or consolidation or otherwise;
(iv) the merger or consolidation of the Issuer with or into another
Person or the merger of another Person into the Issuer with the effect that
immediately after such transaction the stockholders of the Issuer immediately
prior to such transaction hold, directly or indirectly, less than 35% of the
beneficial ownership (as such term is defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of the total voting power of all securities generally entitled to
vote in the election of directors, managers, or trustees of the Person surviving
such merger or consolidation; or
(v) the first day on which a majority of the members of the Board of
Directors of the Issuer are not Continuing Directors.
"Common Stock" means the Issuer's common stock, par value $0.01 per share.
"Consolidated Depreciation and Amortization Expense" means with respect to
any Person for any period, the total amount of depreciation and amortization
expense of such Person and its Restricted Subsidiaries (including without
limitation amortization of intangibles) for such period on a consolidated basis
and otherwise determined in accordance with GAAP.
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"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum, without duplication, of: (i) consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, the interest
component of Capitalized Lease Obligations (or any financing lease which has
substantially the same economic effect as a Capitalized Lease Obligation) and
net payments and receipts (if any) pursuant to Hedging Obligations and excluding
amortization of deferred financing fees), (ii) consolidated capitalized interest
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued and (iii) the earned discount or yield with respect to the sale of
receivables.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis; provided, however, that:
(i) any effect of extraordinary gains or losses shall be excluded;
(ii) any increase in amortization or depreciation resulting from
purchase accounting in relation to any acquisition that is consummated after the
Issue Date, net of taxes, shall be excluded;
(iii) the Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such period;
(iv) any effect of income or loss from discontinued operations and any
effect of gains or losses on disposal of discontinued operations shall be
excluded;
(v) any effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course of
business (as determined in good faith by the Board of Directors) shall be
excluded;
(vi) the Net Income for such period of any Person that is not a
Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other payments paid in
cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period;
(vii) the Net Income for such period of any Restricted Subsidiary shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of its Net Income is not at
the date of determination permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, unless such restrictions with respect to the
payment of dividends or in similar distributions have been legally waived;
provided that (A) such Person's equity in the net income of any such Restricted
Subsidiary shall be included in the Consolidated Net Income up to the aggregate
amount of cash that could have been distributed by such Restricted Subsidiary
during such period as a dividend,
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and (B) the net loss of such Restricted Subsidiary shall be included
to the extent of the aggregate Investment of such Person in such Restricted
Subsidiary;
(viii) any non-cash charge, together with any related provision for taxes
on such charge, related to the write off of goodwill or intangibles as a result
of impairment, including, without limitation, in each case, as required in
accordance with GAAP;
(ix) any unrealized foreign exchange gains or losses;
(x) any compensation charge arising solely from any grant of stock,
stock options or other equity-based awards;
(xi) all deferred financing costs written off and premiums paid in
connection with any early extinguishment of Indebtedness; and
(xii) any item classified as an extraordinary, unusual or nonrecurring
gain, loss or charge, including without limitation (a) any charge or expense
incurred for employee Bonuses in connection with the Transactions, and (b) fees,
expenses and charges associated with the Transactions or any acquisition, merger
or consolidation after the Issue Date.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Issuer or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted pursuant to
Section 4.04 (c)(iv) and Section 4.04(c)(v).
"Continuing Directors" means, as of any date of determination, any member
of the Issuer's Board of Directors who:
(i) was a member of the Issuer's Board of Directors on the date of this
Indenture or on the date which is two years prior to the date of determination;
or
(ii) was nominated for election or elected to the Board of Directors
with the affirmative vote of at least a majority of the Continuing Directors who
were members of the Issuer's Board of Directors at the time of the nomination or
election.
"Contribution Indebtedness" means Indebtedness of the Issuer in an
aggregate principal amount not greater than the amount of all Specified Cash
Contributions, provided that such Contribution Indebtedness (i) has a Stated
Maturity later than the Stated Maturity of the Notes, (ii) is Incurred
substantially concurrently with such Specified Cash Contributions, and (iii) is
so designated as Contribution Indebtedness pursuant to an Officers' Certificate
on the Incurrence date thereof.
"Credit Agreement" means the credit agreement dated as of [ ], 2003 as
amended, restated, supplemented, waived, replaced, restructured, repaid,
increased, refunded, refinanced or otherwise modified from time to time,
including any agreement extending the maturity thereof or otherwise
restructuring all or any portion of the Indebtedness under such
8
agreement among Holdings, ASG, the Subsidiaries of ASG named therein, the
financial institutions named therein and Xxxxx Fargo Bank, as Administrative
Agent.
"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 Issuer or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, less the amount of Cash Equivalents received in connection with
a subsequent sale of such Designated Noncash Consideration.
"Designated Preferred Stock" means Preferred Stock of the Issuer (other
than Disqualified Stock) that is issued for cash (other than to a Subsidiary of
the Issuer or an employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries) and is so designated as Designated Preferred
Stock, pursuant to an Officers' Certificate, on the issuance date thereof, the
cash proceeds of which are excluded from the calculation set forth in Section
4.04(c).
"Designated Senior Indebtedness", with respect to any Guarantor, means:
(i) any Indebtedness of such Guarantor under the Senior Credit
Documents; and
(ii) after payment in full of all obligations under either the Credit
Agreement or the Note Purchase Agreement, any other Guarantor Senior
Indebtedness permitted by this Indenture, the principal amount of which is
$25,000,000 or more and that has been designated by the Issuer or such Guarantor
as "Designated Senior Indebtedness."
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which, by its terms (or by the terms of any security into which
it is convertible or for which it is redeemable or exchangeable), or upon the
happening of any event:
(i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise;
(ii) is convertible or exchangeable for Indebtedness or Disqualified
Stock; or
(iii) is redeemable at the option of the holder thereof, in whole or in
part, in each case prior to the 91st day after the maturity date of the Notes;
provided, however, that only the portion of Capital Stock which so matures
or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such first anniversary
shall be deemed to be Disqualified Stock; provided further, however, that if
such Capital Stock is issued to any employee or to any plan for the benefit of
employees of the Issuer or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock.
9
"Dividend Suspension Threshold" means the following applicable Fixed Charge
Coverage Ratio of Holdings for the twelve-month period ended on any June 30,
September 30 or December 31 or Adjusted Fixed Charge Coverage Ratio of Holdings
for the twelve-month period ended on any March 31, as applicable:
----------------------------------------------------------------------------
Dividend Suspension
Period Ended On Threshold
----------------------------------------------------------------------------
Issue Date through September 30, 2004 1.55 to 1.00
----------------------------------------------------------------------------
December 31, 2004 through September 30, 2005 1.575 to 1.00
----------------------------------------------------------------------------
December 31, 2005 and thereafter 1.60 to 1.00
----------------------------------------------------------------------------
"DTC" means the Depository Trust Company.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excluded Contributions" means the net cash proceeds received by the Issuer
after the date of this Indenture from (i) contributions to its common equity
capital and (ii) the sale (other than to a Subsidiary of the Issuer or to any
Issuer or Subsidiary management equity plan or stock option plan or any other
management or employee benefit plan or agreement) of Capital Stock (other than
Disqualified Stock and Designated Preferred Stock) of the Issuer, in each case
designated as Excluded Contributions pursuant to an Officers' Certificate
executed by an Officer of the Issuer, the cash proceeds of which are excluded
from the calculation set forth in Section 4.04(c), which designation can be
subsequently altered so long as such proceeds have not been expended by the
Issuer or its Restricted Subsidiaries.
"Exercise Period" means the period within [30] days after the Issue Date
during which the Option may be exercised.
"Existing Notes" means the 10 1/8% Senior Subordinated Notes due 2010
issued by ASG and the corporate co-issuer.
"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.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
twelve-month period ended on June 30, September 30 or December 31, the ratio of
Adjusted EBITDA of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the Issuer or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness (including, without limitation,
Indebtedness under this Indenture and the Senior Credit Documents and the
redemption of Indebtedness on the Issue Date) or issues or redeems Preferred
Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the event or to the end of the
period for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed
10
Charge Coverage Ratio shall be calculated giving pro forma effect to such
Incurrence or redemption of Indebtedness, or such issuance or redemption of
Preferred Stock, as if the same had occurred at the beginning of the applicable
twelve-month period. The Fixed Charge Coverage Ratio for any period ending
before December 31, 2003 shall be calculated giving pro forma effect to the
acquisition of substantially all assets of Southern Pride Catfish LLC by the
Restricted Subsidiaries of the Issuer, as if such transaction had occurred at
the beginning of the applicable twelve-month period.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP), in each case with respect to an
operating unit of a business, that have been made by the Issuer or any of its
Restricted Subsidiaries during the four-quarter reference period or subsequent
to such reference period and on or prior to or simultaneously with the
Calculation Date shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, discontinued operations, mergers and
consolidations (and the reduction of any associated fixed charge obligations and
the change in Adjusted EBITDA resulting therefrom) had occurred on the first day
of the four-quarter reference period. If since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary or was merged with or
into the Issuer or any Restricted Subsidiary since the beginning of such period)
shall have made any Investment, acquisition, disposition, discontinued
operation, merger or consolidation, in each case with respect to an operating
unit of a business, that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition,
disposition, discontinued operation, merger or consolidation had occurred at the
beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given
to any transaction, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Issuer. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term in excess of 12 months). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Issuer to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
For purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional
rate chosen as the Issuer may designate. Any such pro forma calculation may
include adjustments appropriate, in the reasonable determination of the Issuer
as set forth in an Officers' Certificate, to reflect operating expense
reductions reasonably expected to result from any acquisition or merger.
11
"Fixed Charges" means, with respect to any Person for any period, the sum
of (i) Consolidated Interest Expense of such Person for such period and (ii) all
cash dividend payments (excluding items eliminated in consolidation) on any
series of Preferred Stock or Disqualified Stock of such Person and its
Subsidiaries.
"Foreign Ownership Rules" means all provisions of United States law
regulating as to citizenship, the ownership, documentation, and operation of (i)
any vessel documented under 46 U.S.C. Ch. 121 with a coastwise endorsement or
(ii) any vessel documented under 46 U.S.C. Ch. 121 with a fishery endorsement
that is one hundred (100) feet or greater in registered length, including, but
not limited to, the American Fisheries Act, the Shipping Act of 1996, as amended
(46 U.S.C. Section 801 et seq.), 46 U.S.C. Ch. 121, and 46 U.S.C. Ch. 313, as
from time to time amended, and the regulations issued by the United States Coast
Guard, MARAD, and the United States Secretary of Transportation pursuant
thereto, as each may be amended from time to time.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States or any state or territory thereof.
"GAAP" means accounting principles generally accepted in the United States,
as set forth in the opinions and pronouncements of accounting standard setting
bodies approved by a significant segment of the accounting profession, or the
public company accounting oversight board, as applicable, which are in effect
from time to time. For the purposes of this Indenture, the term "consolidated"
with respect to any Person shall mean such Person consolidated with its
Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but
the interest of such Person in an Unrestricted Subsidiary will be accounted for
as an Investment.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
"Guarantee" means any Note Guarantee and any Intercompany Guarantee.
"Guarantor" means Holdings and each Wholly Owned Domestic Subsidiary of
Holdings, and any other Person that Incurs a Note Guarantee; provided that upon
the release or discharge of such Person from its Guarantee in accordance with
the terms of this Indenture or pursuant to the terms of the Intercompany Notes,
as applicable, such Person ceases to be a Guarantor.
"Guarantor Senior Indebtedness" means, with respect to any Guarantor, the
Indebtedness under the Senior Credit Documents and all Hedging Obligations with
respect thereto, and all other Indebtedness of such Guarantor, including
interest thereon (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Issuer or any
Subsidiary of the Issuer whether or not a claim for post-filing interest is
allowed in such proceeding) and other amounts (including fees, expenses,
reimbursement obligations under letters of credit and indemnities) owing in
respect thereof, whether outstanding on the Issue 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 not superior
12
in right of payment to such Guarantor's Guarantees; provided, however, that
Guarantor Senior Indebtedness shall not include, as applicable, (i) any
obligation of such Guarantor to the Issuer or any other Subsidiary of the
Issuer, (ii) any liability for Federal, state, local or other taxes owed or
owing by such Guarantor, (iii) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (iv) any Indebtedness or
obligation of such Guarantor which is expressly subordinated in right of payment
to any other Indebtedness of such Guarantor, (v) any obligations with respect to
any Capital Stock, and (vi) any Indebtedness Incurred in violation of this
Indenture.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) 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 (ii) 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 Note is registered on the
Registrar's books.
"IDSs" means the Issuer's Income Deposit Securities, whether issued on the
Issue Date or as may be issued from time to time.
"Incur" means issue, assume, enter into a guarantee of, 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. Any Indebtedness issued at a
discount (including Indebtedness on which interest is payable through the
issuance of additional Indebtedness) shall be deemed to be incurred at the time
of original issuance of the Indebtedness at the issue price thereof.
"Indebtedness" means, with respect to any Person (without duplication):
(i) the principal of any indebtedness of such Person, whether or not
contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or
letters of credit or bankers' acceptances (or, without duplication,
reimbursement agreements in respect thereof);
(c) representing the deferred and unpaid purchase price of any property,
except any such balance that constitutes a trade payable or similar obligation
to a trade creditor due within six months from the date on which it is Incurred,
in each case Incurred in the ordinary course of business, which purchase price
is due more than one year after the date of placing the property in service or
taking delivery and title thereto;
(d) in respect of Capitalized Lease Obligations; or
(e) representing any Hedging Obligations (the amount of any such Hedging
Obligation to be equal at any time to the termination value of such agreement or
arrangement giving rise to
13
such Hedging Obligation that would be payable by such Person at such time), if
and to the extent that any of the foregoing Indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability on a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP;
(ii) to the extent not otherwise included, any obligation of such Person
to be liable for, or to pay, as obligor, guarantor or otherwise, on the
Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business); and
(iii) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not such
Indebtedness is assumed by such Person); provided, however, that the amount of
such Indebtedness will be the lesser of (a) the Fair Market Value of such asset
at such date of determination and (b) the amount of such Indebtedness of such
other Person;
provided further, that any obligation of the Issuer or any Restricted
Subsidiary in respect of (i) minimum guaranteed commissions, or other similar
payments, to clients, minimum returns to clients or stop loss limits in favor of
clients or (ii) indemnification obligations to clients, in each case pursuant to
contracts to provide services to clients entered into in the ordinary course of
business shall be deemed not to constitute Indebtedness.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a similar business
of nationally recognized standing that is, in the good faith determination of
the Issuer, qualified to perform the task for which it has been engaged.
"Intercompany Guarantees" means any guarantee of the obligation of Holdings
under the Intercompany Notes.
"Intercompany Notes" means $[330,000,000] aggregate principal amount of
[ ]% notes of Holdings to be issued on the Issue Date to the Issuer and ASLP,
provided, however, that the term "Intercompany Notes" shall include any
additional Intercompany Notes issued in connection with the issuance by the
Issuer of any Additional Notes under this Indenture, and up to $ 33,000,000
principal amount of additional Intercompany Notes issued to ASLP upon exercise
of management options to acquire units in ASLP or upon redemption of Holdings
junior preferred equity units.
"Interest Deferral Threshold" means the following applicable Fixed Charge
Coverage Ratio of Holdings for the twelve-month period ended on any June 30,
September 30 or December 31 or Adjusted Fixed Charge Coverage Ratio of Holdings
for the twelve-month period ended on any March 31, as applicable:
Interest Deferral
Period Ended On Threshold
-------------------------------------------- -----------------
Issue Date through September 30, 2004 1.45 to 1.00
December 31, 2004 through September 30, 2005 1.475 to 1.00
December 31, 2005 through [_____], 2008 1.50 to 1.00
14
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment Grade Securities" means:
(i) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof (other
than Cash Equivalents);
(ii) debt securities or debt instruments with a rating of BBB-- or
higher by S&P or Baa3 or higher by Moody's or the equivalent of such rating by
such rating organization, or if no rating of S&P or Moody's then exists, the
equivalent of such rating by any other nationally recognized securities rating
agency, but excluding any debt securities or instruments constituting loans or
advances among the Issuer and its Subsidiaries; and
(iii) investments in any fund that invests exclusively in investments of
the type described in clauses (i) and (ii) which fund may also hold immaterial
amounts of cash pending investment and/or distribution.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding accounts receivable,
trade credit and advances to customers and commission, travel and similar
advances to officers, employees and consultants made in the ordinary course of
business), purchases or other acquisitions for consideration (including
agreements providing for the adjustment of purchase price) of Indebtedness,
Equity Interests or other securities issued by any other Person and investments
that are required by GAAP to be classified on the balance sheet of the Issuer in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.
For purposes of the definition of "Unrestricted Subsidiary" and Section
4.04":
(i) "Investments" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the Fair Market Value of the net
assets of a Subsidiary of the Issuer 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 Issuer shall be
deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Issuer's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Issuer'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
(ii) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in each
case as determined in good faith by the Board of Directors.
"Issue Date" means the first date on which the Notes are issued under this
Indenture.
"Issuer" means American Seafoods Corporation until a successor replaces it
and, thereafter, means the successor and, for purposes of any provision
contained in this Indenture and required by the Trust Indenture Act, each other
obligor on the Notes.
15
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction);
provided that in no event shall an operating lease be deemed to constitute a
Lien.
"Management Investors" means any current or future individuals who are or
become members of management of the Issuer and Restricted Subsidiaries,
including, without limitation, Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxx
Xxxxxxx and Xxxx Xxxxxxxxxx, in their capacities as individual investors.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Issuer or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received in respect of or upon the sale or other
disposition of any Designated Noncash Consideration received in any Asset Sale
and any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when received,
but excluding the assumption by the acquiring person of Indebtedness relating to
the disposed assets or other considerations received in any other noncash form),
net of the direct costs relating to such Asset Sale and the sale or disposition
of such Designated Noncash Consideration (including, without limitation, legal,
accounting and investment banking fees, and brokerage and sales commissions),
and any relocation expenses Incurred as a result thereof, taxes paid or payable
as a result thereof or distributions required to permit payment of taxes as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements related thereto), amounts required
to be applied to the repayment of principal, premium (if any) and interest on
Indebtedness required (other than pursuant to Section 4.06(b)(i)) to be paid as
a result of such transaction, all distributions or other payments made to
minority interest holders or any other Person (other than the Issuer or a
Restricted Subsidiary) owning a beneficial interest in the assets disposed of in
such transaction, and any deduction of appropriate amounts to be provided by the
Issuer as a reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the Issuer after
such sale or other disposition thereof, including, without limitation, pension
and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
such transaction.
"Note Guarantee" means the guarantee by each Guarantor of the Issuer's
obligations under this Indenture and on the Notes, executed pursuant to the
provisions of this Indenture.
"Note Purchase Agreement" means the Note Purchase Agreement, dated [ ],
2003, relating to the senior secured notes of ASG, as amended, restated,
supplemented, waived,
16
replaced, restructured, repaid, increased, refunded, refinanced or otherwise
modified from time to time, including any agreement extending the maturity
thereof or otherwise restructuring all or any portion of the Indebtedness under
such agreement.
"Notes" means the Original Notes and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and bankers' acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness; provided that Obligations with respect to the Notes shall not
include fees or indemnifications in favor of the Trustee and other third parties
other than the Holders of the Notes.
"Officer" means the Chairman of the Board, the President, Chief Executive
Officer, Chief Financial Officer, Chief Operating Officer, any Vice President,
the Treasurer or the Secretary of the Issuer.
"Officers' Certificate" means a certificate signed on behalf of the Issuer
by two Officers of the Issuer, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer that meets the requirements set forth in this
Indenture.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Issuer or the Trustee.
"Option" means the right given to the underwriters to purchase up to [ ]
additional IDSs, representing [ ] shares of Common Stock and $[ ] aggregate
principal amount of Notes for the purpose of covering over-allotments in
connection with the sale of IDSs pursuant to the underwriting agreement, dated
as of [ ], 2003, between the Issuer, the guarantors named therein and CIBC World
Markets Corp., as representative of the underwriters named therein.
"Pari Passu Indebtedness" means with respect to any Guarantor, all
Indebtedness of such Person other than Guarantor Senior Indebtedness and other
than Indebtedness that is by its terms expressly subordinated in right of
payment to any Guarantee of such Guarantor.
"Permitted Asset Swap" means any one or more transactions in which the
Issuer or any Restricted Subsidiary exchanges assets for consideration
consisting of (i) assets used or useful in a Similar Business and (ii) any cash
or Cash Equivalents, provided that such cash or Cash Equivalents shall be
considered Net Proceeds from an Asset Sale.
"Permitted Holder" means Centre Partners Management LLC and any funds
managed by Centre Partners Management LLC or its affiliates, the Management
Investors, Coastal Villages Xxxxxxx LLC and Central Bering Sea Fishermans
Association, and Related Parties of each of them.
"Permitted Investments" means:
17
(i) any Investment in the Issuer or any Restricted Subsidiary;
(ii) any Investment in Cash Equivalents or Investment Grade Securities;
(iii) any Investment by the Issuer or any Restricted Subsidiary of the
Issuer in a Person if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary or (b) such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Issuer or a Restricted Subsidiary;
(iv) any Investment in securities or other assets not constituting Cash
Equivalents and received in connection with an Asset Sale made pursuant to the
provisions of Section 4.06 or any other disposition of assets not constituting
an Asset Sale;
(v) any Investment existing on the Issue Date or made pursuant to
legally binding written commitment existing on the Issue Date;
(vi) loans and advances to directors, officers and employees not in
excess of $1,000,000 outstanding at any one time in the aggregate;
(vii) any Investment acquired by the Issuer or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Issuer or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
Issuer of such other Investment or accounts receivable or (b) as a result of a
foreclosure by the Issuer or any of its Restricted Subsidiaries with respect to
any secured Investment or other transfer of title with respect to any secured
Investment in default;
(viii) Hedging Obligations permitted under Section 4.03(j);
(ix) additional Investments having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (ix) that are
at that time outstanding, not to exceed the greater of 5% of Total Assets or
$25,000,000 at the time of such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
(x) loans and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other similar expenses, in
each case Incurred in the ordinary course of business;
(xi) Investments the payment for which consists of Equity Interests of
the Issuer (other than Disqualified Stock);
provided, however, that such Equity Interests shall not increase the amount
available for Restricted Payments under Section 4.04(c);
(xii) any transaction to the extent it constitutes an Investment that is
permitted by and made in accordance with the provisions of Section 4.07 (except
transactions described in clauses (ii), (iii), (v) and (vi) of such paragraph);
18
(xiii) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
(xiv) Guarantees issued in accordance with Section 4.03;
(xv) any Investment by the Issuer or any Restricted Subsidiary in any
Restricted Subsidiary and Investments by any Subsidiary that is not a Restricted
Subsidiary in any other Subsidiary that is not a Restricted Subsidiary;
(xvi) Investments consisting of prepaid expenses or performance or
similar deposits to third parties purchases and acquisitions of inventory,
supplies, materials and equipment or purchases of contract rights or licenses or
leases of intellectual property, in each case in the ordinary course of
business;
(xvii) deposit accounts with respect to foreign currency received in the
ordinary course of business or held by the Issuer or any Restricted Subsidiary
in the ordinary course of business in connection with entering into or
fulfilling Hedging Obligations, and deposits and cash collateral provided with
respect to Hedging Obligations;
(xviii) investments in the Notes or the Existing Notes; and
(xix) pledges or deposits made in connection with Liens permitted under
Section 4.08.
"Permitted Junior Securities" shall mean debt or equity securities of the
Issuer or any successor corporation issued pursuant to a plan of reorganization
or readjustment of the Issuer that are subordinated to the payment of all
then-outstanding Senior Indebtedness of the Issuer at least to the same extent
that the Notes are subordinated to the payment of all Senior Indebtedness of the
Issuer on the Issue Date, so long as to the extent that any Senior Indebtedness
of the Issuer outstanding on the date of consummation of any such plan of
reorganization or readjustment is not paid in full in cash on such date, either
(a) the holders of any such Senior Indebtedness not so paid in full in cash have
consented to the terms of such plan of reorganization or readjustment or (b)
such holders receive securities which constitute Senior Indebtedness and which
have been determined by the relevant court to constitute satisfaction in full in
cash of any Senior Indebtedness not paid in full in cash.
"Permitted Liens" means, with respect to any Person:
(a) pledges or deposits by such Person under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of 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 and mechanics'
Liens, in each case for sums not yet due or being contested in good faith by
appropriate proceedings or
19
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 nonpayment or which are being contested
in good faith by appropriate proceedings;
(d) Liens in favor of issuers of performance and surety bonds or bid bonds
or completion guarantees or with respect to other regulatory requirements or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business;
(e) minor survey exceptions, minor encumbrances, easements or reservations
of, or rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real properties or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which were
not Incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;
(f) Liens securing Indebtedness permitted to be incurred pursuant to
Section 4.03(d);
(g) Liens to secure Indebtedness permitted pursuant to Section 4.03(a);
(h) Liens existing on, or provided for under written arrangements existing
on, the Issue Date;
(i) Liens on property or shares of stock of a Person at the time such
Person becomes a Subsidiary; provided, however, such Liens are not created or
Incurred in connection with, or in contemplation of, such other Person becoming
such a Subsidiary; provided further, however, that such Liens may not extend to
any other property owned by the Issuer or any Restricted Subsidiary;
(j) Liens on property at the time the Issuer or a Restricted Subsidiary
acquired the property, including any acquisition by means of a merger or
consolidation with or into the Issuer or any Restricted Subsidiary; provided,
however, that such Liens are not created or Incurred in connection with, or in
contemplation of, such acquisition; provided further, however, that the Liens
may not extend to any other property owned by the Issuer or any Restricted
Subsidiary;
(k) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Issuer or another Restricted Subsidiary permitted to be
incurred in accordance with Section 4.03;
(l) Liens securing Hedging Obligations so long as the related Indebtedness
is, and is permitted to be under this Indenture, secured by a Lien on the same
property securing such Hedging Obligations;
(m) Liens on specific items of inventory or other goods and proceeds of
any Person securing such Person's obligations in respect of bankers'
acceptances, issued or created for the
20
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(n) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Issuer or any of its
Restricted Subsidiaries;
(o) Liens arising from Uniform Commercial Code financing statement filings
regarding operating leases entered into by the Issuer and its Restricted
Subsidiaries in the ordinary course of business;
(p) Liens in favor of the Issuer or any Restricted Subsidiary;
(q) Liens on equipment of the Issuer granted in the ordinary course of
business to the Issuer's client at which such equipment is located;
(r) Liens encumbering deposits made in the ordinary course of business to
secure obligations arising from statutory, regulatory, contractual or warranty
requirements, including rights of offset and set-off;
(s) Liens on the Equity Interests of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries not otherwise prohibited by this
Indenture;
(t) Liens to secure Indebtedness permitted by Section 4.03(l);
(u) Liens arising out of judgments, decrees, orders or awards in respect
of which the Issuer shall in good faith be prosecuting an appeal or proceedings
for review, which appeal or proceedings shall not have been finally terminated,
or if the period within which such appeal or proceedings may be initiated shall
not have expired;
(v) Liens securing commercial bank indebtedness;
(w) (i) mortgages, liens, security interests, restrictions, encumbrances
or any other matters of record that have been placed by any developer, landlord
or other third party on property over which the Issuer or any Restricted
Subsidiary has easement rights or on any leased property and subordination or
similar agreements relating thereto and (ii) any condemnation or eminent domain
proceedings affecting any real property;
(x) Liens on properties or assets (1) of the Issuer or any Guarantor
securing Senior Indebtedness or Guarantor Senior Indebtedness, (2) of any Wholly
Owned Subsidiary that is not a Guarantor securing Indebtedness of any Wholly
Owned Subsidiary that is not a Guarantor or (3) of any Restricted Subsidiary
that is not a Guarantor securing its Indebtedness;
(y) any encumbrance or restriction (including, but not limited to, put and
call agreements) with respect to Capital Stock of any joint venture or similar
arrangement pursuant to any joint venture or similar agreement;
(z) Liens securing the Notes; and
21
(aa) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (g), (h), (i), (j), (k), (l) and (t);
provided, however, that (x) such new Lien shall be limited to all or part of the
same property that secured the original Lien (plus improvements on such
property) and (y) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (A) the outstanding principal
amount or, if greater, committed amount of the Indebtedness described under
clauses (f), (g), (h), (i), (j), (k), (l) or (t) at the time the original Lien
became a Permitted Lien under this Indenture and (B) an amount necessary to pay
any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement.
"Permitted Payment" means any payment to ASLP pursuant the Expense
Reimbursement Agreement, dated , 2003, between ASLP and Holdings.
"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" means any Equity Interest with preferential right of
payment of dividends or upon liquidation, dissolution, or winding up.
"Related Party" means:
(1) with respect to any Permitted Holder other than an individual, any
controlling stockholder, partner, member, or 80% (or more) owned Subsidiary;
(2) with respect to any Permitted Holder other than an individual, any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of any one or more Permitted Holders
and/or such other Persons referred to in the immediately preceding clause (1);
or
(3) with respect to any Permitted Holder that is an individual, (x) any
immediate family member, heir, executor or legal representative of such
individual or (y) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more individuals
who are Management Investors or members of their immediate families.
"Representative" means the trustee, agent or representative (if any) for an
issue of Guarantor Senior Indebtedness.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than an
Unrestricted Subsidiary.
22
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired by the Issuer or a Restricted Subsidiary whereby the
Issuer or a Restricted Subsidiary transfers such property to a Person and the
Issuer or such Restricted Subsidiary leases it from such Person, other than
leases between the Issuer and a Wholly Owned Subsidiary or between Wholly Owned
Subsidiaries.
"S&P" means Standard and Poor's Ratings Group
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Senior Credit Documents" means the Credit Agreement, the Note Purchase
Agreement, the notes issued pursuant thereto and the guarantees thereof, and the
collateral and other documents relating thereto.
"Senior Credit Facility" means the debt facilities provided pursuant to the
Senior Credit Documents, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Senior Indebtedness" means, with respect to the Issuer, the Indebtedness
under this Indenture and all indebtedness of the Issuer, including interest
thereon and other amounts (including fees, expenses, reimbursement obligations
under letters of credit and indemnities) owing in respect thereof, whether
outstanding on the Issue 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
Notes; provided, however, that Senior Indebtedness shall not include, as
applicable, (a) any obligation of the Issuer to any Subsidiary of the Issuer,
(b) any obligations with respect to any Capital Stock, and (c) any Indebtedness
Incurred in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Issuer within the meaning of Rule 1-02 under
Regulation S-X under the Securities Act promulgated by the SEC.
"Similar Business" means a business, the majority of whose revenues are
derived from the harvesting and/or processing of seafood, or the activities of
the Issuer and its Subsidiaries as of the Issue Date or any business or activity
that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.
"Specified Cash Contributions" means the aggregate amount of cash
contributions (other than Excluded Contributions) made to the capital of the
Issuer which are designated as "Specified Cash Contributions" pursuant to an
Officers' Certificate, which designation can be subsequently altered so long as
such proceeds have not been applied by the Issuer or its Restricted Subsidiaries
to permit a Restricted Payment.
23
"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 at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Obligations" means any Indebtedness of any Guarantor in
respect of Existing Notes, and any Indebtedness of the Issuer or any Guarantor
(whether outstanding on the date of the applicable Indenture or thereafter
Incurred) that is expressly subordinated in right of payment to the Notes or to
the Note Guarantee of such Guarantor, as applicable, pursuant to a written
agreement.
"Subsidiary" means, with respect to any Person:
(i) any corporation, association or other business entity (other than a
partnership, joint venture or limited liability company) of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof; and
(ii) any partnership, joint venture or limited liability company of which
(x) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general and limited partnership interests, as applicable,
are owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person or a combination thereof, whether in
the form of membership, general, special or limited partnership interests or
otherwise and (y) such Person or any Wholly Owned Restricted Subsidiary of such
Person is a controlling general partner or otherwise controls such entity.
"TIA" and "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the Issue Date.
"Total Assets" means the total consolidated assets of Holdings and its
Restricted Subsidiaries, as shown on the most recent balance sheet of Holdings.
"Total Leverage Ratio" means, with respect to Holdings on any date, the
ratio of (1) Indebtedness of Holdings as of such date (which shall include (a)
any outstanding deferred interest on the Intercompany Notes and (b) the average
daily balance of Indebtedness under any revolving credit facility during the
twelve-month period ended on the last day of the most recently ended fiscal
quarter) to (2) either (x) the Adjusted EBITDA of Holdings for the most recently
ended twelve-month period ended on any June 30, September 30 or December 31, or
(y) the Adjusted EBITDA of Holdings for the most-recently ended fifteen-month
period ended on any March 31, multiplied by 4/5, as applicable.
"Transactions" means the transactions occurring in connection with the
consummation of the offering described in the prospectus, dated [ ],
2003, of the Issuer, including without limitation repayment of existing
indebtedness, distribution of proceeds and corporate restructuring contemplated
thereby.
24
"Trust Officer" means (i) any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and (ii) who shall have direct
responsibility for this administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and if at any time there is
more than one such party, "Trustee" as used with respect to the securities of
any series shall mean the trustee with respect to securities of that series.
"Unrestricted Subsidiary" means:
(i) any Subsidiary of the Issuer that at the time of determination shall
be designated an Unrestricted Subsidiary by the Board of Directors in the manner
provided below; and
(ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Issuer
(including any newly acquired or newly formed Subsidiary of the Issuer) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Equity Interests or Indebtedness of, or owns or holds any Lien on any
property of, the Issuer or any other Subsidiary of the Issuer that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that the
Subsidiary to be so designated and its Subsidiaries do not at the time of
designation have and do not thereafter Incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Issuer or any of its
Restricted Subsidiaries; provided further, however, that either (a) the
Subsidiary to be so designated has total consolidated assets of $1,000 or less
or (b) if such Subsidiary has consolidated assets greater than $1,000, then such
designation would be permitted under Section 4.04.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation (x)(1) the Issuer could Incur $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.03 or (2) the Fixed Charge Coverage Ratio, or the Adjusted Fixed
Charge Coverage Ratio, as applicable, for Holdings and its Restricted
Subsidiaries would be greater than such ratio for Holdings and its Restricted
Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation, and (y) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
(including any agency or
25
instrumentality thereof) for the payment of which the full faith and credit of
the United States is pledged and which are not callable or redeemable at the
Issuer's option.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person, including any series of Capital Stock entitled to
class directors.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
or Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of such
Indebtedness or redemption or similar payment with respect to such Disqualified
Stock multiplied by the amount of such payment, by (ii) the sum of all such
payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
100% of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Additional Notes"..........................................................2.01
"Affiliate Transaction".....................................................4.07
"Asset Sale Offer"..........................................................4.06
"Automatic Exchange"........................................................4.14
"Bankruptcy Law"............................................................6.01
"Blockage Notice"..........................................................11.03
"Calculation Date".........................1.01 in "Fixed Charge Coverage Ratio"
"Change of Control Offer"...................................................4.09
"covenant defeasance option".............................................8.01(b)
"Collateral"...............................................................12.01
"Custodian".................................................................6.01
"Deferred Interest".........................................................4.01
"Event of Default"..........................................................6.01
"Excess Proceeds"...........................................................4.06
"Guaranteed Obligations"...................................................10.01
"Initial Lien"..............................................................4.08
"judgment default provision"................................................6.01
"legal defeasance option"................................................8.01(b)
"Legal Holiday"............................................................13.08
"Mandatory Interest Deferral Period"........................................4.01
26
"Notice of Default".........................................................6.01
"Offer Period"..............................................................4.06
"Optional Interest Deferral Period".........................................4.01
"Original Notes"........................................................Preamble
"pay its Guarantee"........................................................11.03
"Paying Agent"..............................................................2.04
"Payment Blockage Period"..................................................11.03
"Pledge"...................................................................12.01
"protected purchaser".......................................................2.08
"Redemption Date"...........................................................3.07
"Refinancing Indebtedness"..................................................4.03
"Refunding Capital Stock"...................................................4.04
"Registrar".................................................................2.04
"Restricted Payments".......................................................4.04
"Retired Capital Stock".....................................................4.04
"Successor Guarantor".......................................................5.01
"Successor Issuer"..........................................................5.01
"Unit Notes"................................................................4.14
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 Notes and the Note 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 Issuer, the 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:
(1) all "dollars" are in U.S. dollars, unless otherwise stated;
(2) a term has the meaning assigned to it;
(3) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
27
(4) "or" is not exclusive;
(5) "including" means including without limitation;
(6) words in the singular include the plural and words in the plural
include the singular;
(7) unsecured Indebtedness shall not be deemed to be subordinate or
junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(8) 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 thereof dated such date prepared in
accordance with GAAP;
(9) 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 NOTES
---------
SECTION 2.01. The Notes; Amount Unlimited. There is hereby established a
series of Notes to be issued under this Indenture, which are designated as the
Issuer's "[ ]% Notes due 2013".
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is unlimited. The Original Notes shall be issued
in an aggregate principal amount of $[ ,000,000], if the Option is exercised
within the Exercise Period, or $[ ,000,000], if the Option is not exercised
within the Exercise Period. Any additional Notes (except for Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Section 2.07, 2.08, 2.10 or 3.06, and except for
Notes which, pursuant to Section 2.03, are deemed never to have been
authenticated and delivered hereunder) issued after the date of this Indenture
("Additional Notes") shall be part of the same series as the Original Notes, and
shall have identical terms and conditions to the Original Notes.
With respect to any Additional Notes issued after the Issue Date, there
shall be (i) established in or pursuant to a resolution of the Board of
Directors and (ii) (A) set forth or determined in the manner provided in an
Officers' Certificate or (B) established in one or more supplemental indentures
hereto, prior to the issuance of such Additional Notes.
Additional Notes shall be issued with identical terms as the Original Notes
set forth in this Indenture except for any variation in issuance date and
interest payable as a result of such date. If any of the terms of any Additional
Notes 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
28
certified by the Secretary or any Assistant Secretary of the Issuer 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 Notes.
The Issuer shall only be entitled to issue Additional Notes in compliance
with Section 4.15.
SECTION 2.02. Form and Dating. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made a part of this Indenture; provided
that any Additional Notes may have such applicable revisions to the form set
forth in Exhibit A hereto as are necessary to reflect the terms of such
Additional Notes established pursuant to Section 2.01. In addition, the Notes
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Issuer or any Guarantor is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Issuer). Each Note shall be dated the date of its
authentication. The Notes shall be issuable only in registered form without
interest coupons.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
SECTION 2.03. Execution and Authentication . One or more Officers shall
sign the Notes for the Issuer by manual or facsimile signature. If an Officer
whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery upon a
written order of the Issuer signed by two Officers, (1) Original Notes for
original issue on the date hereof in an aggregate principal amount of $[
,000,000], if the Option is exercised within the Exercise Period, or $[
,000,000], if the Option is not exercised within the Exercise Period, and (2)
subject to the terms of this Indenture, Additional Notes in an unlimited
aggregate principal amount
The Trustee may appoint an authenticating agent reasonably acceptable to
the Issuer to authenticate the Notes. Any such appointment shall be evidenced by
an instrument signed by a Trust Officer, a copy of which shall be furnished to
the Issuer. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
29
SECTION 2.04. Registrar and Paying Agent. The Issuer shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Issuer 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 Issuer initially appoints the Trustee as (i) Registrar and
Paying Agent in connection with the Notes and (ii) the Notes Custodian (as
defined in the Appendix) with respect to the Global Notes.
The Issuer 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 Issuer shall notify the Trustee of the
name and address of any such agent. If the Issuer 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 Issuer or any of
its domestically organized Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
The Issuer 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 (1) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Issuer
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (2) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (1) above. The Registrar or Paying Agent may resign at any time upon
written notice; provided, however, that the Trustee may resign as Paying Agent
or Registrar only if the Trustee also resigns as Trustee in accordance with
Section 7.08.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior to each due date
of the principal and interest on any Note, the Issuer shall deposit with the
Paying Agent (or if the Issuer or a Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum (in U.S. dollars only) sufficient to pay such principal and interest when so
becoming due. The Issuer 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 or interest on the Notes and shall notify the Trustee of
any default by the Issuer in making any such payment. If the Issuer or a
Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Issuer 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 Issuer
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
30
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 Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer. When a Note is presented to the Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(a)(1) of the Uniform Commercial
Code are met. When Notes are presented to the Registrar with a request to
exchange them for an equal principal amount of Notes 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 Issuer shall execute and
the Trustee shall authenticate Notes at the Registrar's request. The Issuer 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 Issuer shall not be required to make and the Registrar need
not register transfers or exchanges of Notes selected for redemption (except, in
the case of Notes to be redeemed in part, the portion thereof not to be
redeemed) or any Notes for a period of 15 days before a selection of Notes to be
redeemed.
Prior to the due presentation for registration of transfer of any Note, the
Issuer, the Guarantors, the Trustee, the Paying Agent, and the Registrar may
deem and treat the Person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of and
interest, if any, on such Note and for all other purposes whatsoever, whether or
not such Note is overdue, and none of the Issuer, any Guarantor, the Trustee,
the Paying Agent, or the Registrar shall be affected by notice to the contrary.
Any Holder of a Global Note shall, by acceptance of such Global Note,
agrees that transfers of beneficial interest in such Global Note may be effected
only through a book-entry system maintained by (i) the Holder of such Global
Note (or its agent) or (ii) any Holder of a beneficial interest in such Global
Note, and that ownership of a beneficial interest in such Global Note shall be
required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. Replacement Notes. If a mutilated Note is surrendered to the
Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met, such that the Holder (i) satisfies the Issuer
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, (ii) makes such request to the
Issuer or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the Uniform Commercial Code (a "protected
purchaser") and (iii) satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Issuer, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Trustee to protect the Issuer,
the Trustee, the Paying Agent and the Registrar from any loss that any of them
may suffer if a Note is replaced. The Issuer and the
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Trustee may charge the Holder for their expenses in replacing a Note. In the
event any such mutilated, lost, destroyed or wrongfully taken Note has become or
is about to become due and payable, the Issuer in its discretion may pay such
Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Issuer.
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 Notes.
SECTION 2.09. Outstanding Notes. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 13.06, a Note does not cease to be outstanding
because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding
unless the Trustee and the Issuer receive proof satisfactory to them that the
replaced Note 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 Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.10. Temporary Notes. In the event that Definitive Notes are to
be issued under the terms of this Indenture, until such Definitive Notes are
ready for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes. Without unreasonable delay, the Issuer shall prepare and
the Trustee shall authenticate Definitive Notes and deliver them in exchange for
temporary Notes upon surrender of such temporary Notes at the office or agency
of the Issuer, without charge to the Holder.
SECTION 2.11. Cancellation. The Issuer at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
deliver proof of canceled Notes to the Issuer pursuant to written direction by
an Officer. The Issuer may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation. The Trustee shall not
authenticate Notes in place of canceled Notes other than pursuant to the terms
of this Indenture.
SECTION 2.12. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may
32
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer , upon becoming aware, through written
notice, of any change in such "CUSIP" numbers, shall promptly notify the Trustee
of such change.
SECTION 2.13. Tax Treatment. The Issuer agrees, and by acceptance of
beneficial ownership interest in the Notes each beneficial Owner of Notes shall
be deemed to have agreed, (1) to treat itself as owner of the Notes for all
purposes, including the preparation and filing of any United States federal,
state, local or foreign tax return, report, or other information; (2) to treat
the Notes as indebtedness for all tax purposes and (3) to treat the acquisition
of an IDS as the acquisition of the Notes and Common Stock which are represented
by the IDS and to allocate the purchase price of the IDS between the Notes and
the Common Stock in the proportions set forth in paragraph 22 of the Notes.
SECTION 2.14. Maturity. The Notes shall mature on [ ],
2013. The Issuer may extend the maturity of the Notes for up to two additional
successive five-year terms, if the Fixed Charge Coverage Ratio of Holdings for
the most recent twelve-month period ended on June 30, September 30 or December
31, or the Adjusted Fixed Charge Coverage Ratio of Holdings for the twelve-month
period ended on any March 31, in each case for the most recent period ended at
least 45 days prior to the end of the then current term, is equal to or greater
than [ ], and provided that as of the scheduled maturity date:
(1) no Event of Default has occurred and is continuing with respect
to the Notes;
(2) no event of default has occurred and is continuing with respect
to any Indebtedness of the Issuer or a Significant Subsidiary; and
(3) there is no interest due but unpaid on the Notes or any
Indebtedness of the Issuer, other than Indebtedness that is not
Indebtedness for borrowed money up to an aggregate amount of $1,000,000.
ARTICLE 3
REDEMPTION
----------
SECTION 3.01. Notices to Trustee. If the Issuer elects to redeem Notes
pursuant to Section 3.07, it shall notify the Trustee in writing of the
redemption date and the principal amount of Notes to be redeemed.
The Issuer 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, which in no event shall be less than 30 days. Such notice
shall be accompanied by an Officers' Certificate from the Issuer to the effect
that such redemption shall comply with the conditions herein. If fewer than all
the Notes are to be redeemed, the record date relating to such redemption shall
be selected by the Issuer and given to the Trustee, which record date shall be
not fewer than 15 days
33
after the date of notice to the Trustee. 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 Notes to be Redeemed. In the case of any
partial redemption, selection of Notes for redemption shall be made by the
Trustee on a pro rata basis, by lot or by such other method as the Trustee shall
deem fair and appropriate (and in such manner as complies with the applicable
legal and regulatory requirements). If any Note is to be redeemed in part only,
the notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to
the unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the redemption date,
interest shall cease to accrue on Notes or portions thereof called for
redemption, so long as the Issuer has deposited with the depositary funds
sufficient to pay the principal of, plus accrued and unpaid interest on, the
Notes to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than 60
days before the Redemption Date, the Issuer, or the Trustee at the Issuer's
direction, shall mail a notice of redemption by first-class mail to each Holder
of Notes to be redeemed at such Holder's registered address; provided that in
the event the Trustee is to mail such notice, the Issuer shall deliver to the
Trustee, at least 45 days prior to the Redemption Date, an Officer's Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided below.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued and unpaid
interest to the redemption date;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed, the
certificate numbers and principal amounts of the particular Notes to be
redeemed in full or part;
(6) that, unless the Issuer defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, if any, printed on the Notes being redeemed;
and
34
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer's request, the Trustee shall give the notice of redemption in
the Issuer's name and at the Issuer's expense. In such event, the Issuer 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, Notes 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 Notes shall be paid at the redemption price stated in the
notice, plus accrued interest, if any, 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 Notes registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time, on the Redemption Date, the Issuer shall deposit with the Paying
Agent (or, if the Issuer or a Subsidiary is the Paying Agent, shall segregate
and hold in trust) money (in U.S. dollars) sufficient to pay the redemption
price of and accrued and unpaid interest, if any, on all Notes to be redeemed on
that date other than Notes or portions of Notes called for redemption that have
been delivered by the Issuer to the Trustee for cancellation. On and after the
Redemption Date, interest shall cease to accrue on Notes or portions thereof
called for redemption so long as the Issuer has deposited with the Paying Agent
funds (in U.S. dollars) sufficient to pay the principal of, plus accrued and
unpaid interest (if any) on, the Notes to be redeemed.
SECTION 3.06. Notes Redeemed in Part. Upon surrender and cancellation of a
Note that is redeemed in part, the Issuer shall execute and the Trustee shall
authenticate for the Holder (at the Issuer's expense) a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Redemption of Notes
At any time and from time to time on or after [ ], 2008, the Notes shall be
redeemable, at the Issuer's option, in whole or in part upon not less than 30
nor more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address. Any such redemption and notice may, in the Issuer's
discretion, be subject to the satisfaction of one or more conditions precedent.
The Notes shall be so redeemable at the following redemption prices (expressed
as a percentage of principal amount), plus accrued and unpaid interest, if any,
to the relevant 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
[___________] of the years set forth below:
Redemption
Period Price
2008.................... %
2009.................... %
35
2010.................... %
2011 and thereafter..... 100.00%
At any time prior to [ _______________ ], 2008, the Notes may also be
redeemed in whole or in part at the option of the Issuer, upon not less than 30
nor more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to the sum of the present values
of the redemption price of such Note at the first optional redemption date
described above and all required interest payments (excluding accrued but unpaid
interest) due on such Note through the first optional redemption date,
discounted to the date of such redemption (the "Redemption Date") on a monthly
basis (assuming 360-day years consisting of twelve 30-day months) at the
Treasury Rate plus 50 basis points, 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).
ARTICLE 4
COVENANTS
---------
SECTION 4.01. Payment of Notes; Interest Deferral. The Issuer shall
promptly pay the principal of and interest on the Notes on the dates and in the
manner provided in the Notes and in this Indenture. Principal and interest shall
be considered paid on the date due if on 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. Prior to [ ], 2008, the Issuer shall
be permitted to defer interest payments on the Notes if and for so long as
either (x) the Fixed Charge Coverage Ratio of Holdings for the twelve-month
period ended on any June 30, September 30 or December 31, or (y) the Adjusted
Fixed Charge Coverage Ratio of Holdings for the twelve-month period ended on any
March 31, as applicable, in either case for the most recently ended period for
which internal financial statements are available, is less than the applicable
Interest Deferral Threshold, unless a default in payment of interest, principal
or premium, if any, on the Notes has occurred and is continuing, or any other
Event of Default with respect to the Notes has occurred and is continuing and
the Notes have been accelerated as a result of the occurrence of such Event of
Default (any such period, a "Mandatory Interest Deferral Period"). The interest
payments shall be deferred under this provision from the time the Issuer
provides the Trustee with a calculation demonstrating that such deferral is
permitted (provided, however, that such calculation shall be provided to the
Trustee not later than 45 days after the end of the applicable quarter) until
such time as the Issuer provides the Trustee with a calculation demonstrating
that such deferral is no longer permitted (provided, however, that such
calculation shall be provided to the Trustee not later than 45 days after the
end of the applicable quarter) or, if earlier, until such time as a default in
payment of interest, principal or premium, if any, on the Notes has occurred or
any other Event of Default with respect to the Notes has occurred and is
continuing and the maturity of the Notes has been accelerated as a result of the
occurrence of such Event of Default. Interest payments on the Notes shall not be
deferred under this provision for more than 24 months in the aggregate or beyond
the [ ], 2008.
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In addition, between [ ], 2008 and [ ], 2013,
but not after [ ], 2013, the Issuer may at its election defer
interest on the Notes on one occasion for not more than 10 months (the "Optional
Interest Deferral Period") by delivering to the Trustee a copy of a resolution
of the Issuer's Board of Directors certified by an Officers' Certificate to the
effect that, based upon a good-faith determination of the Issuer's Board of
Directors, such deferral is reasonably necessary for bona fide cash management
purposes, or to reduce the likelihood of or avoid a default on the Senior
Indebtedness; provided no such deferral may be commenced, and any ongoing
deferral shall cease, if a default in payment of interest, principal or premium,
if any, on the Notes has occurred and is continuing, or any other Event of
Default with respect to the Notes has occurred and is continuing and the Notes
have been accelerated as a result of the occurrence of such Event of Default.
Deferred interest on the Notes shall bear interest at a rate per annum of [
]% until paid in full. Following the end of any Mandatory Interest Deferral
Period, the Issuer shall resume monthly payments of interest on the Notes,
including interest on deferred interest. At the end of any Mandatory Interest
Deferral Period, all interest on the Notes deferred at any time prior to the end
of such Mandatory Interest Deferral Period (including during any prior Mandatory
Interest Deferral Period), together with interest accrued on such deferred
interest during any such Mandatory Interest Deferral Period (such amount, as
determined at the end of any Mandatory Interest Deferral Period, the "Deferred
Interest"), shall be repaid by the Issuer in one or more equal quarterly
installments beginning on the third interest payment date following the quarter
in which the Fixed Charge Coverage Ratio, or the Adjusted Fixed Charge Coverage
Ratio, as applicable, of Holdings was equal to or greater than the Interest
Deferral Threshold, and ending on [ ], 2008. All Deferred
Interest attributable to a Mandatory Interest Deferral Period ending on _______,
2008, shall be immediately due and payable on such date. The Issuer may prepay
all or part of the Deferred Interest, at any time other than during an interest
deferral period. If the Issuer prepays less than all of the Deferred Interest,
the Trustee shall apply such prepayment in the order of maturity to the
remaining Deferred Interest payments. If a subsequent Mandatory Interest
Deferral Period commences before the Deferred Interest is paid in full the
Issuer shall discontinue the quarterly repayments of Deferred Interest for the
duration of such period and the amount of Deferred Interest shall be
recalculated at the end of such subsequent Mandatory Interest Deferral Period
and repaid in one or more equal quarterly installments as described above. On
the first interest payment date following the end of the Optional Interest
Deferral Period, the Issuer must pay all deferred interest and accrued interest
thereon.
SECTION 4.02. Reports and Other Information. Notwithstanding that the
Issuer may not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the SEC, the Issuer shall file with the SEC (and
provide the Trustee and Holders with copies thereof, without cost to each
Holder, within 15 days after it files them with the SEC), (i) annual reports on
Form 10-K (or any successor or comparable form) containing the information
required to be contained therein (or required in such successor or comparable
form) (ii) reports on Form 10-Q (or any successor or comparable form), (iii)
such other reports on Form 8-K (or any successor or comparable form), and (iv)
any other information, documents and other reports which the Issuer would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act, in each case,
37
within the time period the Issuer would be required to file such information
with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;
provided, however, the Issuer shall not be so obligated to file such reports
with the SEC if the SEC does not permit such filing, in which event the Issuer
shall make available such information to prospective purchasers of Notes, in
addition to providing such information to the Trustee and the Holders, in each
case within 15 days after the time the Issuer would be required to file such
information with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act.
SECTION 4.03. Limitations on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock. The Issuer will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any
Indebtedness (including Acquired Indebtedness) or issue any shares of
Disqualified Stock, and the Issuer shall not permit any of its Restricted
Subsidiaries to issue any shares of Preferred Stock; provided, however, that the
Issuer and any Restricted Subsidiary may Incur Indebtedness (including Acquired
Indebtedness), which may, but shall not be required to, be Incurred under the
Senior Credit Documents, or issue shares of Disqualified Stock and any
Restricted Subsidiary may issue shares of Preferred Stock if (a) if the Issuer
or any Restricted Subsidiary of the Issuer that is not a Subsidiary of Holdings
Incurs Indebtedness or issues Disqualified Stock, it shall contemporaneously
with such Incurrence or issuance lend all proceeds therefrom to Holdings on
terms substantially identical to the terms of such Indebtedness Incurred or
Disqualified Stock issued by the Issuer, and (b) either (x) the Fixed Charge
Coverage Ratio of Holdings for the twelve-month period ended on any June 30,
September 30 or December 31, or (y) the Adjusted Fixed Charge Coverage Ratio of
Holdings for the twelve-month period ended on any March 31, as applicable, in
either case for the most recently ended period for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is
issued, would have been at least 2.00 to 1.00 determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom and the
Holdings Adjustment Loan), as if the additional Indebtedness had been Incurred,
or the Disqualified Stock or Preferred Stock had been issued, as the case may
be, and the application of proceeds therefrom had occurred and the Holdings
Adjustment Loan was made at the beginning of such period.
The foregoing limitations shall not apply to:
(a) the Incurrence by the Issuer and any Restricted Subsidiaries of
Indebtedness under the Senior Credit Documents and the issuance and creation of
letters of credit and bankers' acceptances thereunder (with letters of credit
and bankers' acceptances being deemed to have a principal amount equal to the
face amount thereof), and, without limiting the foregoing, any refinancing or
refunding indebtedness in respect thereof, up to an aggregate principal amount
of $[325,000,000] outstanding at any one time;
(b) the Incurrence by the Issuer and the Restricted Subsidiaries of
Indebtedness represented by the Notes, the Pledge, the Note Guarantees, the
Intercompany Notes and the Intercompany Guarantees, as applicable;
(c) Indebtedness existing on the date of this Indenture (other than
Indebtedness described in clauses (a) and (b));
38
(d) Indebtedness Incurred by the Issuer or any of its Restricted
Subsidiaries, which may, but shall not be required to, be Incurred under the
Senior Credit Documents, to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase of
assets or the Capital Stock of any Person owning such assets) in an aggregate
principal amount which, when aggregated with the principal amount of all other
Indebtedness then outstanding and Incurred pursuant to this clause (d) and all
Refinancing Indebtedness (as defined below) Incurred to refund, refinance or
replace any Indebtedness Incurred pursuant to this clause (d), does not exceed
the greater of 5% of Total Assets at the time of Incurrence or $20,000,000;
(e) Indebtedness Incurred by the Issuer or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including without limitation
letters of credit in respect of workers' compensation and personal injury
claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance, or with respect to agreements to provide
services, or other Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims; provided, however, that upon the drawing
of such letters of credit, such obligations are reimbursed within 30 days
following such drawing;
(f) Indebtedness arising from agreements of the Issuer or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with the
disposition of any business, assets or a Subsidiary of the Issuer in accordance
with the terms of this Indenture, other than guarantees of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets or
Subsidiary for the purpose of financing such acquisition;
(g) Indebtedness of the Issuer to a Restricted Subsidiary of the
Issuer; provided that any such Indebtedness (other than Indebtedness held by a
Guarantor) is subordinated in right of payment to the Notes; provided, further
that any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary of the Issuer or any other subsequent transfer of any such
Indebtedness (except to the Issuer or another Restricted Subsidiary) shall be
deemed, in each case to be an Incurrence of such Indebtedness;
(h) (1) shares of Preferred Stock or Disqualified Stock of a
Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary of
the Issuer; provided that any subsequent issuance or transfer of any Capital
Stock or any other event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any other subsequent transfer of any such
shares of Preferred Stock or Disqualified Stock (except to the Issuer or another
Restricted Subsidiary of the Issuer) shall be deemed, in each case, to be an
issuance of shares of Preferred Stock or Disqualified Stock, and (2) shares of
Preferred Stock represented by the Holdings junior preferred equity units issued
on the Issue Date in an amount of up to $[ ,000,000];
(i) Indebtedness of a Restricted Subsidiary to the Issuer or another
Restricted Subsidiary of the Issuer; provided that any such Indebtedness of a
Restricted Subsidiary to the Issuer is made pursuant to a written instrument;
provided further that any subsequent issuance or transfer of any Capital Stock
or any other event which results in any Restricted Subsidiary
39
lending such Indebtedness ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to the Issuer or another
Restricted Subsidiary of the Issuer) shall be deemed, in each case, to be an
Incurrence of such Indebtedness;
(j) Hedging Obligations that are incurred in the ordinary course of
business (1) 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, (2) for the purpose of fixing or hedging currency exchange rate
risk with respect to any currency exchanges or (3) for the purpose of fixing or
hedging commodity price risk with respect to any commodity purchases;
(k) obligations in respect of performance, bid and surety bonds and
completion guarantees provided by the Issuer or any Restricted Subsidiary in the
ordinary course of business;
(l) Indebtedness or Disqualified Stock of the Issuer and any
Restricted Subsidiary not otherwise permitted hereunder (which may, but shall
not be required to, be Incurred under the Senior Credit Documents) in an
aggregate principal amount, which when aggregated with the principal amount or
liquidation preference of all other Indebtedness and Disqualified Stock then
outstanding and Incurred pursuant to this clause (1), does not exceed the
greater of 5% of Total Assets or $20,000,000 at any one time outstanding;
provided, however, that Indebtedness of Unrestricted Subsidiaries, when
aggregated with the principal amount of all other Indebtedness of Unrestricted
Subsidiaries then outstanding and Incurred pursuant to this clause (l), shall
not exceed $10,000,000 (or the equivalent thereof in any other currency) at any
one time outstanding (it being understood that any Indebtedness Incurred under
this clause (l) shall cease to be deemed Incurred or outstanding for purposes of
this clause (l) but shall be deemed to be Incurred for purposes of the first
paragraph of this covenant from and after the first date on which the Issuer
could have Incurred such Indebtedness under the first paragraph of this covenant
without reliance upon this clause (l));
(m) any guarantee by the Issuer or a Restricted Subsidiary of
Indebtedness or other obligations of the Issuer or any of its Restricted
Subsidiaries so long as such Indebtedness Incurred by the Issuer or such
Restricted Subsidiary is otherwise permitted under the terms of this Indenture;
(n) the Incurrence by the Issuer or any of its Restricted
Subsidiaries of Indebtedness which serves to refund or refinance any
Indebtedness Incurred as permitted under the first paragraph of this covenant
and clauses (b), (c), (d), (l), (n) and (o) of this paragraph, or any
Indebtedness issued to so refund or refinance such Indebtedness (subject to the
following proviso, "Refinancing Indebtedness") prior to its respective maturity;
provided, however, that such Refinancing Indebtedness:
(i) has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is Incurred which is not less than the remaining
Weighted Average Life to Maturity of the Indebtedness being refunded or
refinanced;
40
(ii) has a Stated Maturity which is no earlier than the Stated
Maturity of the Indebtedness being refunded or refinanced;
(iii) to the extent such Refinancing Indebtedness refinances Pari
Passu Indebtedness;
(iv) 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 plus premium and fees Incurred in connection
with such refinancing; and
(v) shall not include Indebtedness of the Issuer or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary;
and provided further that subclauses (i) and (ii) of this clause (n) shall not
apply to any refunding or refinancing of any Guarantor Senior Indebtedness;
(o) Indebtedness or Disqualified Stock of Persons that are acquired
by the Issuer or any of its Restricted Subsidiaries or merged into a Restricted
Subsidiary in accordance with the terms of this Indenture; provided, however,
that such Indebtedness or Disqualified Stock is not Incurred in contemplation of
such acquisition or merger or to provide all or a portion of the funds or credit
support required to consummate such acquisition or merger; provided, further,
that any such Indebtedness and Disqualified Stock shall be included in the
calculation of the Fixed Charge Coverage Ratio, or the Adjusted Fixed Charge
Coverage Ratio, as applicable, of Holdings; and provided, finally, that after
giving effect to such acquisition and the Incurrence of such Indebtedness either
(i) Holdings would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio set forth in the first
sentence of this covenant or (ii) the Fixed Charge Coverage Ratio, or the
Adjusted Fixed Charge Coverage Ratio, as applicable, of Holdings would be
greater than immediately prior to such acquisition;
(p) Contribution Indebtedness;
(q) the Incurrence of the Issuer's Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an Incurrence of Indebtedness by a Restricted Subsidiary;
(r) Indebtedness arising by reason of a Lien created or permitted to
exist in compliance with Section 4.08, other than Liens permitted pursuant to
clauses (v) or (x) of the definition of "Permitted Liens";
(s) Indebtedness arising from honoring a check, draft or similar
instrument drawn against insufficient funds, provided that such Indebtedness is
extinguished within five Business Days of its incurrence;
(t) the Incurrence by the Issuer or its Restricted Subsidiaries of
obligations in respect of performance, appeal and surety bonds, completion
guarantees, insurance bonds and
41
other similar bonds provided by the Issuer or such Restricted Subsidiary in the
ordinary course of business;
(u) Indebtedness underlying the IDSs or to be issued in the form of
Additional Notes upon the exercise of any warrants to acquire Additional Notes
and Common Stock of the Issuer in exchange for ASLP units, and Indebtedness
evidenced by Intercompany Notes, if any, and Intercompany Guarantees, if any,
issued in connection with Incurrence of such Indebtedness, provided that (i) no
Event of Default has occurred and is continuing at the time of such issuance;
(ii) the ratio of the aggregate principal amount of such Additional Notes over
the number of such additional shares shall be equal to the equivalent ratio with
respect to the Notes and Common Stock outstanding immediately after the Issue
Date and (iii) either (A) the Issuer makes the ASLP units received by it in
connection with such issuance subject to the Pledge or (B) if the Issuer redeems
any ASLP units received by it in connection with such issuance in exchange for
Equity Interests in Holdings and the Intercompany Notes, such Intercompany Notes
are made subject to the Pledge;
(v) Indebtedness in the form of Intercompany Notes issued to ASLP
upon exercise of ASLP Warrants in an aggregate principal amount not to exceed $[
,000,000] or in redemption of junior preferred equity units in Holdings in an
aggregate principal amount not to exceed $33,000,000; and
(w) Indebtedness of the Issuer or any Restricted Subsidiary Incurred
to finance the acquisition (including without limitation by way of a merger) of
Capital Stock of any Person engaged in, or assets used or useful in, a Similar
Business, provided that after giving effect to such acquisition and the
Incurrence of such Indebtedness (1) the Fixed Charge Coverage Ratio, or the
Adjusted Fixed Charge Coverage Ratio, as applicable, of Holdings calculated for
the most recently ended twelve-month period for which internal financial
statements are available is higher than immediately prior to giving effect to
such acquisition and the Incurrence of such Indebtedness, and (2) the Total
Leverage Ratio of Holdings calculated as of the last day of the most recently
ended fiscal quarter for which internal financial statements are available is
lower than immediately prior to giving effect to such acquisition and the
Incurrence of such Indebtedness.
For purposes of determining compliance with this covenant, in the event that an
item of Indebtedness meets the criteria of more than one of the categories of
permitted Indebtedness described in clauses (a) through (q) above or is entitled
to be Incurred pursuant to the first paragraph of this covenant, the Issuer
shall, in its sole discretion, classify or reclassify such item of Indebtedness
in any manner that complies with this covenant and such item of Indebtedness
shall be treated as having been Incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Any other obligation of the obligor on
such Indebtedness (or any other person who could have incurred such Indebtedness
under this covenant) arising under any Guarantee, Lien or letter of credit
supporting such Indebtedness shall be disregarded to the extent that such
Guarantee, Lien or letter of credit secures the principal amount of such
Indebtedness. The amount of Indebtedness issued at a price less than the
principal amount thereof shall be equal to the amount of liability in respect
thereof determined in accordance with GAAP. Accrual of interest, the accretion
of accreted value and the payment of interest in the form of additional
42
Indebtedness shall not be deemed to be an Incurrence of Indebtedness for
purposes of this covenant.
SECTION 4.04. Limitation on Restricted Payments. The Issuer will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on
account of the Issuer's or any of its Restricted Subsidiaries' Equity
Interests, including any payment made in connection with any merger or
consolidation involving the Issuer (other than (A) dividends or
distributions by the Issuer payable solely in Equity Interests (other than
Disqualified Stock) of the Issuer or (B) dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or
distribution payable on or in respect of any class or series of securities
issued by a Restricted Subsidiary other than a Wholly Owned Restricted
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities);
(ii) purchase or otherwise acquire or retire for value any
Equity Interests of the Issuer or any Restricted Subsidiary held by Persons
other than the Issuer or another Restricted Subsidiary, other than
exchanges of ASLP units for Common Stock and Notes pursuant to and in
accordance with the ASLP Exchange and Registration Rights Agreement;
(iii) repurchase of Subordinated Obligations; or
(iv) make any Restricted Investment (all such payments and other
actions set forth in this clause (iii) and clauses (i) and (ii) above being
collectively referred to as "Restricted Payments"),
unless, at the time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) immediately after giving effect to such transaction on a pro
forma basis, the Issuer could Incur $1.00 of additional Indebtedness under the
provisions of the first paragraph of Section 4.03; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Issuer and its Restricted Subsidiaries
after the Issue Date (including Restricted Payments permitted by clauses (1),
(4), (5), (6), (7) and (14) of the next succeeding paragraph, but excluding all
other Restricted Payments permitted by the next succeeding paragraph), is less
than the sum of, without duplication:
(i) 50% of the Consolidated Net Income of the Issuer for the
period (taken as one accounting period) from the fiscal quarter that first
begins after the Issue Date to the end of the Issuer's most recently ended
fiscal quarter
43
for which internal financial statements are available at the time of such
Restricted Payment (or, in the case such Consolidated Net Income for such
period is a deficit, minus 100% of such deficit), plus
(ii) 100% of the aggregate net proceeds, including cash and the
Fair Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Issuer since the
Issue Date from the issue or sale of Equity Interests of the Issuer
(excluding Refunding Capital Stock (as defined below), Designated Preferred
Stock, Excluded Contributions and Disqualified Stock), excluding Equity
Interests issued upon the exercise of warrants to acquire the Issuer's
Equity Interests in exchange for ASLP units or conversion of Indebtedness
or upon exercise of warrants or options (other than an issuance or sale to
a Subsidiary of the Issuer or an employee stock ownership plan of trust
established by the Issuer or any of its Subsidiaries), plus
(iii) 100% of the aggregate amount of contributions to the
capital of the Issuer received in cash and the Fair Market Value (as
determined in accordance with the next succeeding sentence) of property
other than cash since the Issue Date (other than Excluded Contributions,
Refunding Capital Stock, Designated Preferred Stock and Disqualified
Stock), plus
(iv) 100% of the aggregate amount received in cash and the Fair
Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash received from (A) the sale or other
disposition (other than to the Issuer or a Restricted Subsidiary) of
Restricted Investments made by the Issuer and its Restricted Subsidiaries
and from repurchases and redemptions of such Restricted Investments from
the Issuer and its Restricted Subsidiaries by any Person (other than the
Issuer or any of its Subsidiaries) and from repayments of loans or advances
which constituted Restricted Investments, (B) the sale (other than to the
Issuer or a Subsidiary) of the Capital Stock of an Unrestricted Subsidiary
or (C) a distribution or dividend from an Unrestricted Subsidiary, plus
(v) in the event any Unrestricted Subsidiary has been
redesignated as a Restricted Subsidiary or has been merged, consolidated or
amalgamated with or into, or transfers or conveys its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary, the Fair Market
Value (as determined in good faith by the Board of Directors) of the
Investment of the Issuer in such Unrestricted Subsidiary at the time of
such redesignation, combination or transfer (or of the assets transferred
or conveyed, as applicable), after deducting any Indebtedness associated
with the Unrestricted Subsidiary so designated or combined or any
Indebtedness associated with the assets so transferred or conveyed, not to
exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Issuer or any Restricted Subsidiary in
such Unrestricted Subsidiary, which amount was included in the calculation
of the amount of Restricted Payments, plus
(vi) the amount of all Specified Cash Contributions.
44
The Fair Market Value of property other than Cash and Cash Equivalents covered
by clauses (ii), (iii) and (iv) above shall be determined in good faith by the
Issuer and (A) in the event of property with a Fair Market Value in excess of
$2,500,000, shall be set forth in an Officers' Certificate or (B) in the event
of property with a Fair Market Value in excess of $5,000,000, shall be set forth
in a resolution approved by at least a majority of the Board of Directors.
The foregoing provisions shall not prohibit:
(1) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at the date of declaration such payment
would have complied with the provisions of this Indenture;
(2) (a) the repurchase, retirement or other acquisition of any Equity
Interests ("Retired Capital Stock") or Subordinated Indebtedness of the
Issuer or Holdings, in exchange for, or out of the proceeds of the
substantially concurrent sale of, Equity Interests of the Issuer or
Holdings, as applicable, or contributions to the equity capital of the
Issuer or Holdings, as applicable (other than any Disqualified Stock or any
Equity Interests sold to a Subsidiary of the Issuer or Holdings, as
applicable, or to an employee stock ownership plan or any trust established
by the Issuer or Holdings, as applicable, or any of their respective
Subsidiaries) (collectively, including any such contributions, "Refunding
Capital Stock") and (b) the declaration and payment of accrued dividends on
the Retired Capital Stock out of the proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Issuer or Holdings or to
an employee stock ownership plan or any trust established by the Issuer or
Holdings or any of their respective Subsidiaries) of Refunding Capital
Stock;
(3) the purchase of Equity Interests by the Issuer on behalf of a
long term incentive plan or of other employee benefit plans in an amount
not to exceed $2,000,000 in any 12 month period;
(4) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Stock of the Issuer or any
of its Restricted Subsidiaries issued or incurred in accordance with
Section 4.03;
(5) the declaration and payment of dividends or distributions to
holders of any class or series of Designated Preferred Stock issued after
the Issue Date; provided, however, that (A) for the most recently ended
four full fiscal quarters for which internal financial statements are
available immediately preceding the date of issuance of such Designated
Preferred Stock, after giving effect to such issuance (and the payment of
dividends or distributions) on a pro forma basis, Holdings would have had a
Fixed Charge Coverage Ratio or an Adjusted Fixed Charge Coverage Ratio, as
applicable, of at least 2.00 to 1.00 and (B) the aggregate amount of
dividends declared and paid pursuant to this clause (5) does not exceed the
net cash proceeds received by the Issuer from the sale of Designated
Preferred Stock issued after the Issue Date;
45
(6) Investments in Unrestricted Subsidiaries having an aggregate Fair
Market Value, taken together with all other Investments made pursuant to
this clause (6) that are at that time outstanding, not to exceed $2,500,000
(with the Fair Market Value of each Investment being measured at the time
made and without giving effect to subsequent changes in value);
(7) the declaration and payment of dividends on the shares of the
Issuer's common stock underlying outstanding IDSs or on shares of the
Issuer's common stock outstanding upon exchange of any IDSs for or
separation of any IDSs into the underlying securities or issued in
connection with the issuance of Additional Notes or other Indebtedness
evidenced by a different series of notes, provided, that the aggregate
amount of dividends per share paid in any fiscal quarter may not exceed 1/4
of the sum of (i) $[0.76], and (ii) 90% of the Issuer's Adjusted EBITDA
divided by the number of the Issuer's shares outstanding (assuming all
exchange warrants have been exercised) in excess of $[ ]
for the twelve-month period ended on the last day of the most recent fiscal
quarter for which financial statements are available;
(8) Investments that are made with Excluded Contributions;
(9) repurchases of Equity Interests deemed to occur upon exercise of
stock options and warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants, or cash paid in lieu of
fractional Equity Interests in an aggregate amount not to exceed $50,000;
(10) the repurchase of the Issuer's securities to the extent that any
such repurchase is (a) permitted by the Issuer's Certificate of
Incorporation, and (b) has been determined by the Board of Directors of the
Issuer to be necessary or advisable in order to satisfy the Foreign
Ownership Rules, provided that the aggregate amount paid by the Issuer for
such securities shall not exceed $1,000,000;
(11) so long as no interest deferral period is in effect, dividends
and distributions on junior preferred equity units of Holdings issued in
accordance with Section 4.03;
(12) Permitted Payments;
(13) the Transactions; and
(14) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Issuer, Holdings, ASLP or any
Restricted Subsidiary of the Issuer held by any member of the Issuer's (or
any of its Restricted Subsidiaries') or ASLP's management pursuant to any
Permitted Benefit Plan, or dividends or distributions to effect such
transactions; provided that the aggregate price paid, dividended or
distributed for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $2,000,000 in any twelve-month period;
46
provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (1), (4), (5), (6) and (7), no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; provided further, however, that for purposes of
determining the aggregate amount expended for Restricted Payments in accordance
with clause (c) of the immediately preceding paragraph, only the amounts
expended under clauses (1), (4), (5), (6) and (7) shall be included.
Notwithstanding the foregoing: (a) the Issuer may not make Restricted Payments
described in clauses (i), (ii) and (iii) of the first paragraph of this Section
4.04, and the Restricted Payments described in clauses (3), (4), (5), (7), and
(9) above shall be prohibited, if and so long as either (x) the Fixed Charge
Coverage Ratio of Holdings for the twelve-month period ended on any June 30,
September 30 or December 31, or (y) the Adjusted Fixed Charge Coverage Ratio of
Holdings for the twelve-month period ended on any March 31, as applicable, in
either case for the most recently ended period for which internal financial
statements are available, is less than the applicable Dividend Suspension
Threshold, and (b) the Issuer may not make Restricted Payments described in
clauses (i), (ii) and (iii) of the first paragraph of this covenant, and the
Restricted Payments described in clauses (1), (2), (3), (4), (5), (7), (9) and
(14) above shall be prohibited, during any interest deferral period or, after
the end of any interest deferral period, so long as any deferred interest and
any accrued interest thereon has not been paid in full.
The Issuer shall not permit any Restricted Subsidiary to become an
Unrestricted Subsidiary except pursuant to the definition of "Unrestricted
Subsidiary." For purposes of designating any Restricted Subsidiary as an
Unrestricted Subsidiary, all outstanding Investments by the Issuer and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined as
set forth in the last sentence of the definition of "Investments." Such
designation shall only be permitted if a Restricted Payment in such amount would
be permitted at such time (whether pursuant to the first paragraph of this
covenant or under clause (6), or (8)) and if such Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
SECTION 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Issuer
or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its profits,
or (ii) pay any Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries;
(b) make loans or advances to the Issuer or any of its Restricted
Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries,
except in each case for such encumbrances or restrictions existing under or by
reason of:
47
(1) contractual encumbrances or restrictions in effect on the Issue
Date, including pursuant to the Senior Credit Documents;
(2) this Indenture, the Notes, the Note Guarantees, the Intercompany
Notes and the Intercompany Note Guarantees;
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument relating to Indebtedness of a
Person acquired by the Issuer or any Restricted Subsidiary which was in
existence at the time of such acquisition (but not created in contemplation
thereof or to provide all or any portion of the funds or credit support
utilized to consummate such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so
acquired;
(5) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition;
(6) Indebtedness otherwise permitted to be Incurred pursuant to
Sections 4.03 and 4.08;
(7) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business;
(9) customary provisions contained in leases, agreements to provide
services and other similar agreements entered into in the ordinary course
of business that impose restrictions of the type described in clause (c)
above;
(10) (x) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the property so
acquired of the nature described in clause (c) above; or (y) restrictions
on the transfer of property or assets required by any regulatory authority
having jurisdiction over the Issuer or any Restricted Subsidiary or any of
their businesses; or
(11) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) above imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (10) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Board
of Directors, no more restrictive with respect to such dividend and other
payment restrictions than those contained in the dividend or
48
other payment restrictions prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION 4.06. Asset Sales. (a) The Issuer will not, and will not permit
any of its Restricted Subsidiaries to, cause or make an Asset Sale, unless (x)
the Issuer, or its Restricted Subsidiaries, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value (as determined in good faith by the Issuer) of the assets sold or
otherwise disposed of and (y) except in the case of a Permitted Asset Swap, at
least 75% of the consideration therefor received by the Issuer, or such
Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents;
provided that the amount of: (i) any liabilities (as shown on the Issuer's or
such Restricted Subsidiary's most recent balance sheet or in the notes thereto)
of the Issuer or any Restricted Subsidiary that are assumed by the transferee of
any such assets; (ii) any notes or other obligations or other securities
received by the Issuer or such Restricted Subsidiary from such transferee that
are converted by the Issuer or such Restricted Subsidiary into cash within 180
days of the receipt thereof (to the extent of the cash received); and (iii) any
Designated Noncash Consideration received by the Issuer or any of its Restricted
Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken
together with all other Designated Noncash Consideration received pursuant to
this clause (iii) that is at that time outstanding, not to exceed the greater of
7.5% of Total Assets (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) shall be deemed to be Cash Equivalents
for the purposes of this provision.
(b) Within 365 days after the Issuer's or any Restricted Subsidiary's
receipt of the Net Proceeds of any Asset Sale, the Issuer or such Restricted
Subsidiary may apply the Net Proceeds from such Asset Sale, at its option: (i)
to permanently reduce Obligations under the Senior Credit Documents (and, in the
case of revolving Obligations, to correspondingly reduce commitments with
respect thereto) or other Senior Indebtedness (or Indebtedness of a Restricted
Subsidiary, in each case other than Indebtedness owed to the Issuer or a
Restricted Subsidiary of the Issuer (except for Indebtedness owed by Holdings to
the Issuer as provided below), provided that (A) if the Issuer shall so reduce
Obligations under Senior Indebtedness, it shall offer to equally and ratably
reduce Obligations under the Notes by making an offer (in accordance with the
procedures set forth below for an Asset Sale Offer) to all Holders to purchase
at a purchase price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, the pro rata principal amount of Notes and (B) if
Holdings shall so reduce any Obligations under the Intercompany Notes held by
the Issuer and ASLP by making an offer (on terms substantially similar to those
described below for an Asset Sale Offer) to the Issuer and ASLP to purchase a
pro rata principal amount of the Intercompany Notes at a purchase price equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any,
and (y) upon the receipt of such repurchase offer from Holdings described in
clause (x) above, the Issuer shall make an offer to the Holders of the Notes to
purchase the maximum amount of Notes that can be purchased with the proceeds
from such repurchase of the Intercompany Notes by Holdings, at a purchase price
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any; (ii) to an investment in any one or more Persons, businesses, capital
expenditures or acquisitions of other assets in each case engaged, used or
useful in a Similar Business; and/or (iii) to make an investment in properties
or assets that replace the properties and assets that are the subject of such
Asset Sale. Pending the final application of any such Net Proceeds, the Issuer
or such
49
Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Proceeds in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale
that are not applied as provided and within the time period set forth in the
first sentence of this paragraph shall be deemed to constitute "Excess
Proceeds". When the aggregate amount of Excess Proceeds exceeds $12,500,000, the
Issuer shall make an offer to all Holders of Notes (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
fixed for the closing of such offer, in accordance with the procedures set forth
in this Section 4.06. The Issuer shall commence an Asset Sale Offer with respect
to Excess Proceeds within ten Business Days after the date that Excess Proceeds
exceeds $12,500,000 by mailing the notice required pursuant to Section
4.06(c)(1). To the extent that the aggregate amount of Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased in the
manner described in Section 4.06(c)(3). Upon completion of any such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
(c) (1) Promptly, and in any event within ten Business Days after the
Issuer becomes obligated to make an Asset Sale Offer, the Issuer shall deliver
to the Trustee and send, by first-class mail, postage prepaid, to each Holder at
such Holder's registered address, a written notice stating that the Holder may
elect to have such Holder's Notes purchased by the Issuer either in whole or in
part (subject to prorating as hereinafter described in the event the Asset Sale
Offer is oversubscribed), at the applicable purchase price. The notice shall be
mailed at least 30 but not more than 60 days before the purchase date and shall
contain such information concerning the business of the Issuer which the Issuer
in good faith believes will enable such Holders to make an informed decision
(which at a minimum shall include (i) the most recently filed annual report on
Form 10-K (or any successor or comparable form) (including audited consolidated
financial statements) of the Issuer, the most recent subsequently filed
quarterly report on Form 10-Q (or any successor or comparable form) of the
Issuer and any current report on Form 8-K (or any successor or comparable form)
of the Issuer filed subsequent to such quarterly report, other than current
reports describing Asset Sales otherwise described in the offering materials,
(ii) a description of material developments in the Issuer's business subsequent
to the date of the latest of such reports, and (iii) if material, appropriate
pro forma financial information) and all instructions and materials necessary to
tender Notes pursuant to the Asset Sale Offer, together with the address
referred to in Section 4.06(c)(3) below. If any Note is to be purchased in part
only, any notice of purchase that relates to such Note shall state the portion
of the principal amount thereof that has been or is to be purchased.
(2) Not later than the date upon which written notice of an Asset
Sale Offer is delivered to the Trustee as provided above, the Issuer shall
deliver to the Trustee an Officers' Certificate as to (i) the amount of the
Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset
Sales pursuant to which such Asset Sale Offer is being made and (iii) the
compliance of such allocation with the provisions of Section 4.06(b). On
such date, the Issuer shall also irrevocably deposit with the Trustee or
with a paying agent (or, if the Issuer is acting as its
50
own paying agent, segregate and hold in trust) an amount equal to the
Excess Proceeds to be invested in Cash Equivalents and to be held for
payment in accordance with the provisions of this Section 4.06. Upon the
expiration of the period for which the Offer remains open (the "Offer
Period"), the Issuer shall deliver to the Trustee for cancellation the
Notes or portions thereof that have been properly tendered to and are to be
accepted by the Issuer. 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
Excess Proceeds delivered by the Issuer to the Trustee is greater than the
purchase price of the Notes tendered, the Trustee shall deliver the excess
to the Issuer immediately after the expiration of the Offer Period for
application in accordance with Section 4.06(b) above.
(3) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer
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 Issuer 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 Note
which was delivered by the Holder for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased. If at the
expiration of the Offer Period more Notes are tendered pursuant to an Asset
Sale Offer than the Issuer is required to purchase, selection of such Notes
for purchase shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on
which such Notes are listed, or if such Notes are not so listed, on a pro
rata basis, by lot or by such other method as the Trustee shall deem fair
and appropriate (and in such manner as complies with applicable legal
requirements). A new Note in principal amount equal to the unpurchased
portion of any Note purchased in part will be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
purchase date, unless the Issuer defaults in payment of the purchase price,
interest shall cease to accrue on Notes or portions thereof purchased.
(d) The Issuer shall comply with the requirements of Rule 14e-1 under
the Exchange Act and the Canadian equivalent and any other securities laws and
regulations to the extent such laws or regulations are applicable in connection
with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
SECTION 4.07. Transactions with Affiliates. The Issuer will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, make
any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction or series of transactions, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of
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the Issuer or any Affiliate of any Restricted Subsidiary (each of the foregoing,
an "Affiliate Transaction") involving aggregate consideration in excess of
$50,000, unless:
(a) such Affiliate Transaction is on terms that are not materially
less favorable to the Issuer or the relevant Restricted Subsidiary than those
that could have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$5,000,000, the Issuer delivers to the Trustee a resolution adopted by the
majority of the Board of Directors of the Issuer, approving such Affiliate
Transaction and set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (a) above.
The foregoing provisions shall not apply to the following:
(i) transactions between or among the Issuer and/or any of its
Restricted Subsidiaries;
(ii) Permitted Investments and Restricted Payments permitted by
Section 4.04;
(iii) the payment of reasonable and customary fees and other
compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Issuer or any Restricted
Subsidiary;
(iv) transactions in which the Issuer or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Issuer or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (a) of the preceding paragraph;
(v) payments or loans to employees or consultants in the
ordinary course of business which are approved by a majority of the
disinterested members of the Board of Directors of the Issuer or a
Restricted Subsidiary, as applicable in good faith;
(vi) any agreement as in effect as of the Issue Date (including,
without limitation, any agreement with ASLP and the Expense Reimbursement
Agreement) or any amendment thereto (so long as any such amendment is not
disadvantageous to the holders of the Notes in any material respect) or any
transaction contemplated thereby;
(vii) the existence of, or the performance by the Issuer or any
of its Restricted Subsidiaries of its obligations under the terms of, any
stockholders agreement (including the ASLP Exchange and Registration Rights
Agreement and any registration rights agreement or purchase agreement
related thereto) to which it is a party as of the Issue Date and any
similar agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by
52
the Issuer or any of its Restricted Subsidiaries of its obligations under
any future amendment to any such existing agreement or under any similar
agreement entered into after the Issue Date shall only be permitted by this
clause (vii) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to the Holders of the Notes in
any material respect;
(viii) the issuance of Capital Stock (other than Disqualified
Stock) of the Issuer or IDSs in respect of the Issuer's securities
(including such underlying securities) or Additional Notes and related
Intercompany Notes and Intercompany Guarantees or other Senior Indebtedness
evidenced by a different series of notes or shares of the Issuer's Capital
Stock to any Permitted Holder;
(ix) the Transactions; and
(x) the issuance of Capital Stock (other than Disqualified
Stock) of the Issuer or IDSs in respect of the Issuer's securities
(including such underlying securities) or Additional Notes and related
Intercompany Notes and Intercompany Guarantees or other Senior Indebtedness
evidenced by a different series of notes or shares of the Issuer's Capital
Stock to any Permitted Holder.
SECTION 4.08. Liens. The Issuer will not, and will not permit any of its
Restricted Subsidiaries that are not Guarantors to, directly or indirectly,
create, Incur or suffer to exist any Lien on any asset or property of the Issuer
or such Restricted Subsidiary, or any income or profits therefrom, or assign or
convey any right to receive income therefrom, that secures any Indebtedness of
the Issuer or any of its Subsidiaries (such lien, the "Initial Lien") unless the
Notes are equally and ratably secured with (or on a senior basis to, in the case
of Indebtedness subordinated in right of payment to the Notes) the Indebtedness
so secured or until such time as such Indebtedness are no longer secured by a
Lien. Any such Lien thereby created in favor of the Notes shall be automatically
and unconditionally released and discharged upon (i) the release and discharge
of the Initial Lien to which it relates, or (ii) any sale, exchange or transfer
to any Person not an Affiliate of the Issuer of the property or assets secured
by such Initial Lien. The preceding sentence will not require the Issuer or any
Restricted Subsidiary to secure the Notes if the Lien consists of a Permitted
Lien.
No Guarantor shall, and the Issuer shall not permit any Guarantor to,
directly or indirectly create, Incur or suffer to exist any Lien on any asset or
property of such Guarantor or any income or profits therefrom, or assign or
convey any right to receive income therefrom, that secures any Indebtedness of
such Guarantor (other than Guarantor Senior Indebtedness of such Guarantor)
(such lien, the "Initial Lien") unless the Note Guarantee of such Guarantor is
equally and ratably secured with (or on a senior basis to, in the case of
Indebtedness subordinated in right of payment to such Note Guarantee) the
Indebtedness so secured or until such time as such Indebtedness are no longer
secured by a Lien. Any such Lien thereby created in favor of the Guarantees will
be automatically and unconditionally released and discharged upon (i) the
release and discharge of the Initial Lien to which it relates, or (ii) any sale,
exchange or transfer to any Person not an Affiliate of the Issuer of the
property or assets secured by such Initial Lien, or of all of the Capital Stock
held by the Issuer or any Guarantor in, or all or substantially all the
53
assets of, any Guarantor creating such Initial Lien. The preceding sentence will
not require any Guarantor to secure its Guarantee if the Lien consists of a
Permitted Lien.
SECTION 4.09. Change of Control. (a) Upon a Change of Control, each Holder
shall have the right to require that the Issuer repurchase all or any part of
such Holder's Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.09(b); provided, however,
that notwithstanding the occurrence of a Change of Control, the Issuer shall not
be obligated to purchase the Notes pursuant to this Section 4.09 in the event
that it has exercised its right to redeem all the Notes pursuant to Section
3.07. In the event that at the time of such Change of Control the terms of the
Senior Credit Documents restrict or prohibit the repurchase of Notes pursuant to
this Section 4.09, then prior to the mailing of the notice to Holders provided
for in Section 4.09(b) below but in any event within 30 days following any
Change of Control, the Issuer shall (i) repay in full all amounts owing under
the Senior Credit Documents or offer to repay in full all amounts owing under
the Senior Credit Documents and repay each lender under the Senior Credit
Documents who has accepted such offer or (ii) obtain the requisite consent under
the agreements governing the Senior Credit Documents to permit the repurchase of
the Notes as provided for in Section 4.09(b).
(a) Within 30 days following any Change of Control (except as
provided in Section 4.09(a)) or, at the Issuer's option, prior to the occurrence
of the Change of Control but after the public announcement thereof, the Issuer
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(1) that a Change of Control has occurred or will occur and that such
Holder has (or upon the occurrence will have) the right to require the
Issuer to purchase such Holder's Notes at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the date of repurchase (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant
interest payment date);
(2) the circumstances and relevant facts and financial information
regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed);
(4) the instructions determined by the Issuer, consistent with this
Section 4.09, that a Holder must follow in order to have its Notes
purchased; and
(5) if such Change of Control Offer is made prior to such Change of
Control, that payment is conditioned on the occurrence of such Change of
Control.
(b) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw
54
their election if the Trustee or the Issuer 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 Notes
which were delivered for purchase by the Holder and a statement that such Holder
is withdrawing his election to have such Notes purchased.
(c) On the purchase date, all Notes purchased by the Issuer under
this Section 4.09 shall be delivered to the Trustee for cancellation, and the
Issuer shall pay the purchase price plus accrued and unpaid interest, if any, to
the Holders entitled thereto.
(d) Notwithstanding the foregoing provisions of this Section 4.09,
the Issuer 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
4.09(b) applicable to a Change of Control Offer made by the Issuer and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other U.S. securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Section 4.09. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.09, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.09 by virtue
thereof.
SECTION 4.10. Compliance Certificate. The Issuer shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Issuer
commencing with the fiscal year ending on December 30, 2003, an Officers'
Certificate stating that in the course of the performance by the signers of
their duties as officers of the Issuer 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 Issuer is taking or proposes to take with respect thereto.
The Issuer also shall comply with Section 314(a)(4) of the TIA.
SECTION 4.11. Further Instruments and Acts. Upon request of the Trustee,
the Issuer 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 4.12. Future Guarantors. The Issuer shall cause each Restricted
Subsidiary organized under the laws of the United States or any state or
territory thereof that Incurs Indebtedness or issues shares of Disqualified
Stock or Preferred Stock to execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit B hereto pursuant to which such Subsidiary
shall guarantee payment of the Notes.
SECTION 4.13. Limitation on Layering. No Guarantor shall Incur any
Indebtedness that is expressly subordinated in right of payment to any Guarantor
Senior Indebtedness of such Guarantor, unless such Indebtedness so Incurred
ranks pari passu in right of payment with, or is subordinated in right of
payment to, such Guarantor's Note Guarantee. Unsecured Indebtedness is not
deemed to be subordinate or junior to secured Indebtedness
55
merely because it is unsecured, and Indebtedness that is not guaranteed by a
particular Person is not deemed to be subordinate or junior to Indebtedness that
is so guaranteed merely because it is not so guaranteed.
SECTION 4.14. Subsequent Issuance.
(a) The Issuer may issue Additional Notes:
(i) upon exercise of exchange warrants by holders of ASLP units
to acquire Notes and Common Stock of the Issuer pursuant to the terms
thereof, subject to compliance with clause (u) of Section 4.03, provided
that no Event of Default has occurred and is continuing at the time of such
issuance, and
(ii) (b) for other purposes in connection with issuances of the
Issuer's IDSs or Common Stock, provided that (1) no Event of Default has
occurred and is continuing at the time of such issuance, (2) the Incurrence
of Indebtedness evidenced by such Additional Notes is permitted pursuant to
Section 4.03, (3) the ratio of the aggregate principal amount of such
Additional Notes over the number of such additional shares of the Issuer's
Common Stock shall be equal to the equivalent ratio with respect to the
Notes and Common Stock outstanding immediately after the Issue Date, (4)
the Issuer uses any cash or property received from the issuance of such
Additional Notes to acquire additional Intercompany Notes in an aggregate
principal amount equal to the aggregate principal amount of such Additional
Notes, and (5) such additional Intercompany Notes are made subject to the
Pledge.
(b) The Issuer agrees, and by purchasing the Notes each Holder shall
be deemed to have agreed, that upon the issuance by the Issuer of any Additional
Notes, if the Issuer determines that such Additional Notes should be assigned a
different CUSIP number than the Original Notes, immediately following such
issuance, a portion of each holder's Original Notes and/or Additional Notes, as
applicable, will automatically, without any action by such holder, be exchanged
(the "Automatic Exchange") for a portion of each other holder's Notes, such that
immediately after the Automatic Exchange, each Holder will hold Notes issued
prior to the date of issuance of such Additional Notes and such Additional Notes
in the same proportion as the ratio of the then outstanding aggregate principal
amount of Notes such to the then outstanding aggregate principal amount of such
Additional Notes. The aggregate stated principal amount of Notes owned by each
holder will not change as a result of the Automatic Exchange. Immediately
following the Automatic Exchange, the Issuer and the Trustee will instruct DTC
to facilitate the combination of the Notes issued prior to the date of issuance
of such Additional Notes and such Additional Notes into indivisible units ("Unit
Notes").
(c) At least [ten (10)] business days prior to the closing of the
issuance of Additional Notes that will result in an Automatic Exchange, the
Issuer shall notify the Trustee, in writing of its intention to consummate such
subsequent issuance and shall instruct the Trustee and DTC to take any action
necessary to effect the Automatic Exchange. Such notice may be revoked at any
time prior to the date fixed for such Automatic Exchange.
56
(d) The Issuer agrees, and by acceptance of beneficial ownership in
the Notes each beneficial owner of the Notes shall be deemed to have agreed,
that (1) the Issuer will report any "original issue discount" (as determined for
U.S. federal income tax purposes) associated with the Original Notes and
Additional Notes among all beneficial owners in proportion to their ownership of
the aggregate principal amount of Notes and (2) each beneficial owner of the
Notes shall report such original issue discount in this manner and shall not
take an inconsistent position for any applicable tax purpose.
ARTICLE 5
SUCCESSOR ISSUER
----------------
SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All
Assets. (a) The Issuer may not consolidate or merge with or into or wind up into
(whether or not the Issuer is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to any Person unless
(i) the Issuer is the surviving corporation or the Person formed by or surviving
any such consolidation or merger (if other than the Issuer) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership or limited liability company organized
or existing under the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (the Issuer or such Person, as the case
may be, being herein called the "Successor Issuer"); (ii) the Successor Issuer
(if other than the Issuer) expressly assumes all the obligations of the Issuer
under this Indenture and the Notes pursuant to a supplemental indenture or other
documents or instruments in form reasonably satisfactory to the Trustee; (iii)
immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Issuer or any of its
Restricted Subsidiaries as a result of such transaction as having been Incurred
by the Successor Issuer or such Restricted Subsidiary at the time of such
transaction) no Default or Event of Default shall have occurred and be
continuing; (iv) immediately after giving pro forma effect to such transaction,
as if such transaction had occurred at the beginning of the applicable period,
either (A) Holdings would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to Section 4.03 hereof or (B) the Fixed Charge Coverage
Ratio, or Adjusted Fixed Charge Coverage Ratio, as applicable, for Holdings and
its Restricted Subsidiaries would be greater than or equal to such ratio for
Holdings and its Restricted Subsidiaries immediately prior to such transaction,
provided, in each case, that the Indebtedness of the Successor Issuer and its
restricted Subsidiaries shall be included, without duplication, in the
calculation of the Fixed Charge Coverage Ratio, or the Adjusted Fixed Charge
Coverage Ratio, as applicable, of Holdings; (v) each Guarantor, unless they are
the other party to the transactions described above, shall have by supplemental
indenture or by supplemental intercompany notes and intercompany guarantees, as
applicable, confirmed that its Note Guarantee shall apply to such Person's
obligations under this Indenture and the Notes; and (vi) the Issuer 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, provided that (x) in giving such
opinion such counsel may rely on officer's certificate as to any matters of fact
(including without limitation as to clauses (iii) and (iv) above), and (y) no
Opinion of Counsel will be required for a consolidation, merger or transfer
described in the last sentence of this paragraph. The Successor Issuer will
succeed to, and be substituted for, the Issuer under this
57
Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv),
(a) any Restricted Subsidiary may consolidate with, merge into or transfer all
or part of its properties and assets to the Issuer or to another Restricted
Subsidiary and (b) the Issuer may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Issuer in another state of the United
States so long as the amount of Indebtedness of the Issuer and its Restricted
Subsidiaries is not increased thereby.
(a) Subject to Section 10.02(b) hereof governing the release of a
Note Guarantee, upon the sale or disposition of a Guarantor that is a Subsidiary
of the Issuer, each of Holdings and ASG will not, and the Issuer will not permit
Holdings or ASG to, consolidate or merge with or into or wind up into (whether
or not such Guarantor is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to, any Person unless (i) such
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership or limited liability company organized
or existing under the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Guarantor or such Person, as the
case may be, being herein called the "Successor Guarantor"); (ii) the Successor
Guarantor (if other than such Guarantor) expressly assumes all the obligations
of such Guarantor under this Indenture and such Guarantor's Note Guarantee
pursuant to a supplemental indenture or other documents or instruments in form
reasonably satisfactory to the Trustee; (iii) immediately after giving effect to
such transaction (and treating any Indebtedness which becomes an obligation of
the Successor Guarantor or any of its Subsidiaries as a result of such
transaction as having been Incurred by the Successor Guarantor or such
Subsidiary at the time of such transaction) no Default or Event of Default shall
have occurred and be continuing; (iv) the Guarantor shall have delivered or
caused to be 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, provided that (x) in
giving such opinion such counsel may rely on officer's certificate as to any
matters of fact (including without limitation as to clause (iii) above) and (y)
no Opinion of Counsel will be required for a consolidation, merger or transfer
described in the last sentence of this paragraph; and (v) with respect to any
such transaction entered into by Holdings, immediately after giving pro forma
effect to such transaction, as if such transaction had occurred at the beginning
of the applicable period, either (A) the Successor Guarantor would be permitted
to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first sentence of Section 4.03 or (B) the
Fixed Charge Coverage Ratio, or the Adjusted Fixed Charge Coverage Ratio, as
applicable, for the Successor Guarantor and its Restricted Subsidiaries would be
greater than or equal to such ratio for Holdings and its Restricted Subsidiaries
immediately prior to such transaction. The Successor Guarantor will succeed to,
and be substituted for, such Guarantor under this Indenture and such Guarantor's
Note Guarantee. Notwithstanding the foregoing clause (iii), a Guarantor may
merge with an Affiliate incorporated solely for the purpose of reincorporating
such Guarantor in another state of the United States so long as the amount of
Indebtedness of the Guarantor is not increased thereby.
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ARTICLE 6
DEFAULTS AND REMEDIES
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(a) The Issuer defaults in any payment of interest on any Note or
interest on any Deferred Interest when the same becomes due and payable, and
such default continues for a period of 30 days, provided that deferral of
interest payments in accordance with Section 4.01 hereof shall not constitute a
default;
(b) the Issuer defaults in the payment of the principal or premium,
if any, on any Note when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise;
(c) the Issuer defaults in the payment of (i) Deferred Interest when
due following the end of any Mandatory Interest Deferral Period, or (2) any
deferred interest and accrued interest thereon at the end of the Optional
Interest Deferral Period;
(d) the Issuer fails to comply with Section 5.01 hereof;
(e) the Issuer fails to comply with Sections 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.09 or 4.12 (other than a failure to purchase Notes when
required under Section 4.06 or 4.09) and such failure continues for 30 days
after the notice specified below;
(f) the Issuer fails to comply with any of its agreements in the
Notes or this Indenture (other than those referred to in (a), (b), (c), (d) or
(e) above) and such failure continues for 60 days after the notice specified
below;
(g) Indebtedness of the Issuer or any Significant Subsidiary (other
than Indebtedness owing to the Issuer or a Restricted Subsidiary) is not paid
within any applicable grace period after final maturity or the acceleration by
the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $10,000,000 or its foreign currency
equivalent, and a period of 20 days shall have elapsed following the
acceleration of such indebtedness and such acceleration shall not have been
waived or rescinded or the underlying debt shall not have been paid, acquired or
retired within such 20 day period (the "cross acceleration provision");
(h) the Issuer 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
59
(iv) makes a general assignment for the benefit of its
creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Issuer or any Significant
Subsidiary or for any substantial part of the property of the Issuer or any
Significant Subsidiary; or
(iii) orders the winding up or liquidation of the Issuer or any
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days;
(j) the rendering of any judgment or decree for the payment of money
(other than judgments which are covered by enforceable insurance policies issued
by solvent carriers) in excess of $10,000,000 or its foreign currency equivalent
against the Issuer or a Significant Subsidiary, if such judgment or decree
remains outstanding for a period of 60 days following such judgment or decree
and is not discharged, waived or stayed (the "judgment default provision"); or
(k) any Note Guarantee of a Significant Subsidiary ceases to be in
full force and effect (except as contemplated by the terms thereof or this
Indenture) or any Guarantor that is a Significant Subsidiary denies or
disaffirms in writing such Guarantor's obligations under this Indenture or its
Note Guarantee (other than by reason of termination of this Indenture or such
Note Guarantee or the release of such Note Guarantee in accordance with the
terms of such Note Guarantee and this Indenture), and such Default continues for
10 days.
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 Xxxxx Code, or any similar
Federal or state or foreign 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 (e) or (f) above is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Issuer of the Default and the Issuer does not cure
such Default within the time specified in clause (e) or (f), as the case may be,
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". When a
Default or Event of Default is cured, it ceases.
60
The Issuer shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (h) or (i) and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause
(e), (f) or (j), its status and what action the Issuer is taking or proposes to
take with respect thereto.
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an
Event of Default specified in Section 6.01(h) or (i)) occurs and is continuing,
the Trustee by notice to the Issuer, or the Holders of at least 25% in principal
amount of the outstanding Notes by notice to the Issuer, may declare the
principal of, premium, if any, and accrued but unpaid interest on all the Notes
to be due and payable, subject to any Acceleration Forbearance Period. Upon such
a declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(h) or (i) with respect to the
Issuer occurs, the principal of, premium, if any, and interest on all the Notes
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 the Notes by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
(b) So long as the Notes are guaranteed by at least one of the
Guarantors, until the earlier of (a) the date on which no Designated Senior
Indebtedness (including any guarantee of other Designated Senior Indebtedness)
of any Guarantor shall be outstanding and (b) [ ], 2008, if an Event
of Default (other than an Event of Default described in Section 6.01(h) or (i))
has occurred and is continuing, without in any way limiting the right of any
Holder to exercise any other remedy such Holder may have (including the right to
bring suit against the Issuer or any Guarantor for payment of any and all
amounts of principal, premium and interest due and payable), the principal of
all the Notes may not be declared to be due and payable unless and until the
Acceleration Forbearance Period has expired. For the avoidance of doubt, the
provisions set forth in this sub-section shall not prevent the Holders or the
Trustee from receiving payments on the Notes when due or exercising any other
remedies under this Indenture while an Acceleration Forbearance Period is in
effect. The Issuer agrees to pay, in addition to the amount stated above, any
and all expenses (including reasonable counsel fees and expenses) incurred by
the Trustee acting on behalf of the Holders of Notes in enforcing any rights
under the Notes.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any 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.
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SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may on behalf
of the Holders of all such Notes waive an existing Default or an Event of
Default and its consequences except (i) a continuing Default or an Event of
Default in the payment of the principal of or interest on a Note, (ii) a Default
or an Event of Default arising from the failure to redeem or purchase any Note
when required pursuant to the terms of this Indenture or (iii) a Default or an
Event of Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected. In the event of any Event
of Default specified in Section 6.01(d), such Event of Default and all
consequences thereof (including without limitation any acceleration or resulting
payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders, if within 20 days after such
Event of Default arose (x) the Indebtedness or guarantee that is the basis for
such Event of Default has been discharged, or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or (z) if the default that is the basis
for such Event of Default has been cured. 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 Notes 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.
SECTION 6.06. Limitation on Suits. 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 Notes unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Notes make
a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Notes do not
give the Trustee a direction inconsistent with the request during such
60-day period.
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(6) 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 Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
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 Issuer
for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
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 Issuer, any Subsidiary or 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 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 of Senior Indebtedness of the Issuer to the extent
required by Article 11;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and interest, respectively;
and
FOURTH: to the Issuer or any other obligor on the Notes.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Issuer 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
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by it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 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 Notes.
SECTION 6.12. Waiver of Stay or Extension Law. Neither the Issuer nor any
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 Issuer and each 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.
ARTICLE 7
TRUSTEE
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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.
(b) Except during the continuance of an Event of Default:
(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(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 Issuer.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 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
willful 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
Notes shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in 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 Notes at the time
outstanding, but the Trustee, in its discretion, may make such further inquiry
or
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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 Issuer, personally or
by agent or attorney.
(g) In case an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might reasonably be incurred by it in compliance with such request or
direction.
SECTION 7.03. Individual Right of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or its Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Issuer's use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Issuer
in this Indenture or in any document issued in connection with the sale of the
Notes or in the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing
and is actually 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 actually known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in payment of principal
of, premium (if any) or interest on any Note, the Trustee may withhold notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding 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
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Holder a brief report dated as of July 15 that complies with
Section 313(a) of the TIA. 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 Notes are listed. The
Issuer agrees to notify promptly the Trustee whenever the Notes become listed on
any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuer 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 Issuer 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
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of the Trustee's agents, counsel, accountants and experts. The Issuer and each
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 Issuer of any claim for which
it may seek indemnity promptly upon obtaining actual knowledge thereof;
provided, however, that any failure so to notify the Issuer shall not relieve
the Issuer or any Guarantor of its indemnity obligations hereunder. The Issuer
shall defend the claim and the indemnified party shall provide reasonable
cooperation at the Issuer's expense in the defense of such claim. Such
indemnified parties may together have one separate counsel and the Issuer and
the Guarantors, as applicable shall pay the fees and expenses of such counsel;
provided, however, that the Issuer 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 Issuer and the Guarantors, as applicable, and such parties in
connection with such defense. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee other than money or property held in trust to pay principal of
and interest on particular Notes.
The Issuer'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. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(h) or (i) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time
by so notifying the Issuer. The Holders of a majority in principal amount of the
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Issuer shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the Holders of a
majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuer. 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.
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 Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Issuer'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 Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture, provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the TIA; 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 Issuer 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 Issuer. 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.
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ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
SECTION 8.01. Discharge of Liability on Notes; Defeasance. (a) When (i)
the Issuer delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.08 or paid or Notes for which payment money has
heretofore been deposited in trust pursuant to this Article 8) for cancellation
or (ii) all outstanding Notes not theretofore delivered for cancellation 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 or will become due and payable
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice in the name
and at the expense of the Issuer, and the Issuer or any Guarantor irrevocably
deposits or causes to be deposited with the Trustee funds or U.S. Government
Obligations on which payment of principal and interest when due will be
sufficient to pay at maturity or upon redemption all outstanding Notes,
including interest thereon to maturity or such redemption date (other than Notes
replaced pursuant to Section 2.08), and if in either case the Issuer pays all
other sums payable hereunder by the Issuer, 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 Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel and at the cost and
expense of the Issuer.
(b) Subject to Sections 8.01(c) and 8.02, the Issuer at any time may
terminate (i) all of its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.12 and 4.13 and the operation of Section 5.01(a)(iv),
6.01(e), 6.01(g), 6.01(h) (with respect to Subsidiaries of the Issuer only),
6.01(i) (with respect to Subsidiaries of the Issuer only) and 6.01(j) ("covenant
defeasance option"). The Issuer may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. In the
event that the Issuer terminates all of its obligations under the Notes and this
Indenture by exercising its legal defeasance option, or if the Issuer exercises
its covenant defeasance option, the obligations under the Guarantees shall each
be terminated simultaneously with the termination of such obligations.
If the Issuer exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If the Issuer exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.01(e), 6.01(g), 6.01(h)
(with respect to Significant Subsidiaries of the Issuer only), 6.01(i) (with
respect to Significant Subsidiaries of the Issuer only) or 6.01(j) or because of
the failure of the Issuer to comply with clause (iv) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon request of
the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer'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 until the Notes have been paid in full. Thereafter,
the Issuer's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
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SECTION 8.02. Conditions to Defeasance. The Issuer may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Issuer irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Notes to maturity or redemption, as the case may
be;
(2) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Notes to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(h) or (i) with respect to the
Issuer occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
material agreement binding on the Issuer and is not prohibited by Article
10;
(5) the Issuer 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 Issuer
Act of 1940 (or the Canadian equivalent);
(6) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that, subject to
customary assumptions and exclusions, (i) the Issuer has received from, or
there has been published by, the Internal Revenue Service or Canadian
Customs and Revenue Agency a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, subject to customary assumptions and
exclusions, the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred;
(7) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that,
subject to customary assumptions and exclusions, the Holders will not
recognize income, gain or loss for U.S. or Canadian federal income tax
purposes as a result of such covenant defeasance and will be subject to
U.S. or Canadian federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred; and
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(8) the Issuer delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions), each stating that all conditions precedent to
the defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Issuer may make arrangements satisfactory to
the Trustee for the redemption of Notes 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 Notes. Money and securities so
held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Issuer. The Trustee and the Paying Agent shall
promptly turn over to the Issuer upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Issuer 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 Issuer for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Issuer 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.
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 Issuer's obligations under this Indenture and the Notes
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 Issuer has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money or U.S. Government Obligations held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
----------
SECTION 9.01. Without Consent of Holders. The Issuer and the Trustee may
amend this Indenture or the Notes without notice to or consent of any Holder:
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(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes; provided, however, that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Internal Revenue Code;
(4) to make any change in Article 10 or Article 12 that would limit
or terminate the benefits available to any holder of Senior Indebtedness
(or Representatives therefor) under Article 10 or Article 12;
(5) to add additional Note Guarantees with respect to the Notes or to
secure the Notes;
(6) to add to the covenants of the Issuer for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Issuer;
(7) to comply with any requirement of the SEC or in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(8) to make any change that does not adversely affect the rights of
any Holder;
(9) to provide for the issuance of the Additional Notes, which shall
have terms substantially identical in all material respects to the Original
Notes (except that the transfer restrictions contained in the Original
Notes shall be modified or eliminated, as appropriate), and which shall be
treated, together with any outstanding Original Notes, as a single issue of
securities, including the entering into of one or more indentures
supplemental hereto for this purpose; or
(10) to enter into one or more supplemental indentures to effect any
of the amendments set forth herein or to set forth the terms of any
Additional Notes in accordance with the provisions of this Indenture.
An amendment under this Section may not make any change that adversely
affects the rights under Article 10 or Article 12 of any holder of Guarantor
Senior Indebtedness then outstanding (which Guarantor Senior Indebtedness has
been previously designated in writing by the Issuer to the Trustee for this
purpose) unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the Issuer 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.
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SECTION 9.02. With Consent of Holders. The Issuer , the Guarantors and the
Trustee may amend this Indenture or the Notes without notice to any Holder but
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including consents obtained in connection
with a tender offer or exchange for the Notes), and any existing Default
(subject to Article 6) or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a purchase of or tender offer or exchange offer for Notes). However,
without the consent of each Holder, an amendment or waiver may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Stated Maturity of any
Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(5) make any Note payable in money other than that stated in the
Note;
(6) make any change to the subordination or ranking provisions of
this Indenture or the related definitions that adversely affects the rights
of any Holder;
(7) impair the right of any Holder to receive payment of principal
of, premium, if any, and interest on such Holder's Notes on or after the
due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes; or
(8) make any change in the amendment provisions which require each
Holder's consent or in the waiver provisions.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.
An amendment or waiver under this Section 9.02 may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Guarantor Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment or waiver under this Section becomes effective, the
Issuer shall mail to Holders a notice briefly describing such amendment or
waiver. The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment or waiver under this
Section 9.02.
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SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consent and Waivers. A consent to
an amendment or a waiver by a Holder of a Note shall bind the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent or waiver
is not made on the Note. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Note or portion of the Note if
the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers' Certificate from the Issuer certifying that the
requisite number of consents has been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Issuer or the Trustee of the requisite
number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and an indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Issuer and the Trustee.
The Issuer 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.
SECTION 9.05. Notation on or Exchange of Notes. If an amendment changes
the terms of a Note, the Trustee may require the Holder of the Note to deliver
it to the Trustee. The Trustee may place an appropriate notation on the Note
regarding the changed terms and return it to the Holder. Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Note shall not
affect the validity of such amendment.
SECTION 9.06. 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 Issuer and the Guarantors
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).
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ARTICLE 10
GUARANTEES
----------
SECTION 10.01. Guarantee. Each Guarantor hereby jointly and severally,
irrevocably fully 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 (a) the full and punctual payment when due, whether at Stated Maturity,
by acceleration, by redemption or otherwise, of all obligations of the Issuer
under this Indenture (including obligations to the Trustee) and the Notes,
whether for payment of principal of, or interest on, the Notes and all other
monetary obligations of the Issuer under this Indenture and the Notes and (b)
the full and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for expenses, indemnification or otherwise
under this Indenture and the Notes (all the foregoing being hereinafter
collectively called the "Guaranteed Obligations"). Each 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 Guarantor, and that each such
Guarantor shall remain bound under this Article 10 notwithstanding any extension
or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from and protest
to the Issuer of any of the Guaranteed Obligations and also waives notice of
protest for nonpayment. Each Guarantor waives notice of any default under the
Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Issuer or any
other Person under this Indenture, the Notes or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (d) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any of them;
(e) the failure of any Holder or Trustee to exercise any right or remedy against
any other guarantor of the Guaranteed Obligations; or (f) any change in the
ownership of such Guarantor, except as provided in Section 10.02(b).
Each Guarantor hereby waives any right to which it may be entitled to have
its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Issuer first be used and depleted as payment of the Issuer's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Issuer be sued prior to an action
being initiated against such Guarantor.
Each Guarantor further agrees that its 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.
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The Guarantee of each Guarantor is, to the extent and in the manner set
forth in Article 12, subordinated and subject in right of payment to the prior
payment in full of the principal of and premium, if any, and interest on all
Guarantor Senior Indebtedness of the relevant Guarantor and is made subject to
such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 10.02 and 10.06, the
obligations of each 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 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 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 Notes or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful 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 Guarantor
or would otherwise operate as a discharge of any Guarantor as a matter of law or
equity.
Each Guarantor agrees that its Guarantee shall remain in full force and
effect until payment in full of all the Guaranteed Obligations. Each Guarantor
further agrees that its 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 or interest on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Issuer or otherwise.
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 Guarantor by
virtue hereof, upon the failure of the Issuer to pay the principal of or
interest 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 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 then due
and owing, (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 Issuer to the Holders and the Trustee.
Each 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 and all
obligations to which the Guaranteed Obligations are subordinated as provided in
Article 11. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article 6 for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such
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Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this Section 10.01.
Each Guarantor also agrees to pay any and all reasonable 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.
Upon request of the Trustee, each 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 Guarantor shall not exceed
the maximum amount that, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees
under the Credit Agreement) and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, can be hereby guaranteed without
rendering this Indenture, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
(a) A Guarantee as to any Guarantor that is a Subsidiary of the
Issuer shall terminate and be of no further force or effect and such Guarantor
shall be deemed to be released from all obligations under this Article 10 upon
(i) the merger or consolidation of such Guarantor with or into any Person other
than the Issuer or a Subsidiary or Affiliate of the Issuer where such Guarantor
is not the surviving entity of such consolidation or merger or (ii) the sale by
the Issuer or any Subsidiary of the Issuer (or any pledgee of the Issuer) of the
Capital Stock of such Guarantor, where, after such sale, such Guarantor is no
longer a Subsidiary of the Issuer; 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). At the request of the Issuer, the Trustee shall execute and
deliver an appropriate instrument evidencing such release.
SECTION 10.03. Successors and Assigns. This Article 10 shall be binding
upon each 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
Notes 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,
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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 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 Guarantor in any case shall entitle such 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 Guarantors.
Each Subsidiary which is required to become a Guarantor pursuant to Section 4.12
hereof shall promptly execute and deliver to the Trustee a supplemental
indenture substantially in the form of Exhibit B hereto pursuant to which such
Subsidiary shall become a Guarantor under this Article 10 and shall guarantee
the Guaranteed Obligations. Concurrently with the execution and delivery of such
supplemental indenture, the Issuer 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 Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
ARTICLE 11
SUBORDINATION OF THE GUARANTEES
-------------------------------
SECTION 11.01. Agreement To Subordinate. Each Guarantor agrees, and each
Holder by accepting a Note agrees, that the obligations of a Guarantor hereunder
are subordinated in right of payment, to the extent and in the manner provided
in this Article 11, to the prior payment in full of all existing and future
Guarantor Senior Indebtedness of such Guarantor and that the subordination is
for the benefit of and enforceable by the holders of such Guarantor Senior
Indebtedness of such Guarantor. The obligations hereunder with respect to a
Guarantor shall in all respects rank pari passu in right of payment with any
Pari Passu Indebtedness of such Guarantor, and shall in all respects rank senior
in right of payment to all Subordinated Obligations.
SECTION 11.02. Liquidation, Dissolution Bankruptcy. Upon any payment or
distribution of the assets of a Guarantor upon a total or partial liquidation or
dissolution of such Guarantor or reorganization of or similar proceeding
relating to such Guarantor and its properties, the holders of Guarantor Senior
Indebtedness of such Guarantor shall be entitled to receive payment in full of
such Guarantor Senior Indebtedness of such Guarantor before Holders are entitled
to receive any payment and until the Guarantor Senior Indebtedness of such
Guarantor is paid in full, any payment or distribution to which Holders would be
entitled but for this Article 11 shall be made to holders of such Guarantor
Senior Indebtedness of such Guarantor as their interests may appear. If a
distribution is made to Holders that due to this Article 11 should not have been
made to them, such Holders are required to hold it in trust for the holders of
Guarantor Senior Indebtedness of such Guarantor and pay it over to them as their
interests
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may appear (except that Holders may receive and retain (i) Permitted Junior
Securities and (ii) payments made from the trust described under Section 8.01 so
long as, on the date or dates the respective amounts were paid into the trust,
such payments were made with respect to the Notes without violating this Article
11).
SECTION 11.03. Default on Designated Senior Indebtedness of a Guarantor. A
Guarantor may not make any payment pursuant to any of the Guaranteed Obligations
and may not otherwise purchase, redeem or otherwise retire any Notes
(collectively, "pay its Guarantee") if (i) a default in the payment of the
principal of, premium, if any, or interest on any Designated Senior Indebtedness
of such Guarantor occurs and is continuing or any other amount owing in respect
of any Designated Senior Indebtedness of such Guarantor is not paid when due, or
(ii) any other default on Designated Senior Indebtedness of such Guarantor
occurs and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (x) the default has been cured
or waived and any such acceleration has been rescinded or (y) such Designated
Senior Indebtedness has been paid in full. However, such Guarantor may pay its
Guarantee without regard to the foregoing if such Guarantor and the Trustee
receive written notice approving such payment from the Representative of such
Designated Senior Indebtedness with respect to which either of the events in
clause (i) or (ii) of the immediately preceding sentence has occurred and is
continuing. During the continuance of any default (other than a default
described in clause (i) or (ii) of the second preceding sentence) with respect
to any Designated Senior Indebtedness of a Guarantor pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, such Guarantor may not pay its Guarantee for a
period (a "Payment Blockage Period") commencing upon the receipt by ASG (with a
copy to the Trustee) of written notice (a "Blockage Notice") of such default
from the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending on the earliest to occur
of the following events: (a) 179 days shall have elapsed since such receipt of
such Blockage Notice; provided, however, that in the event that there has been
any Acceleration Forbearance Period in respect of the Notes in the immediately
preceding 360-day period, such 179-day period will be automatically reduced by
the cumulative duration of all Acceleration Forbearance Periods that occurred
during such immediately preceding 360-day period, (b) such Payment Blockage
Period is terminated by written notice to the ASG (with a copy to the Trustee)
from the Person or Persons who gave such Blockage Notice, (c) the repayment in
full of such Designated Senior Indebtedness, or (d) the default giving rise to
such Blockage Notice is no longer continuing. Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 11.03 and in Section 11.02),
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, such Guarantor may resume payments on its Guarantee after such
Payment Blockage Period, including any missed payments. In no event shall the
total number of days during which any Payment Blockage Period is in effect
extend beyond the 179 days from the date of receipt by the Trustee of the
relevant Blockage Notice, and in no event shall the total number of days during
which any Payment Blockage Period or any Acceleration Forbearance Period is in
effect exceed 179 days during any 360 consecutive day period. For purposes of
this provision, no default or event of default that existed or was continuing on
the date of commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment
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Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
SECTION 11.04. When Distribution Must Be Paid Over. If a payment or
distribution is made to Holders that because of this Article 11 should not have
been made to them, the Holders who receive the payment or distribution shall
hold such payment or distribution in trust for holders of the Senior
Indebtedness of the relevant Guarantor and pay it over to them as their
respective interests may appear.
SECTION 11.05. Subrogation. After all Designated Senior Indebtedness of a
Guarantor is paid in full and until the Notes are paid in full in cash, Holders
shall be subrogated to the rights of holders of Guarantor Senior Indebtedness of
such Guarantor to receive distributions applicable to Guarantor Senior
Indebtedness of such Guarantor. A distribution made under this Article 11 to
holders of Guarantor Senior Indebtedness of such Guarantor which otherwise would
have been made to Holders is not, as between such Guarantor and Holders, a
payment by such Guarantor on such Senior Indebtedness.
SECTION 11.06. Relative Rights. This Article 11 defines the relative rights
of Holders and holders of Guarantor Senior Indebtedness of a Guarantor. Nothing
in this Indenture shall:
(1) impair, as between a Guarantor and Holders, the obligation of a
Guarantor which is absolute and unconditional, to make payments with
respect to the Guaranteed Obligations to the extent set forth in Article
10; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a default by a Guarantor under its obligations with respect
to the Guaranteed Obligations, subject to the rights of holders of
Guarantor Senior Indebtedness of such Guarantor to receive distributions
otherwise payable to Holders.
SECTION 11.07. Subordination May Not Be Impaired by a Guarantor. No right
of any holder of Senior Indebtedness of a Guarantor to enforce the subordination
of the obligations of such Guarantor hereunder shall be impaired by any act or
failure to act by such Guarantor or by its failure to comply with this
Indenture.
SECTION 11.08. Right of Trustee and Paying Agent. Notwithstanding Section
11.03, the Trustee or the Paying Agent may continue to make payments on the
Notes and shall not be charged with knowledge of the existence of facts that
would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to payments may not be made under this Article 11.
A Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative
or a holder of Senior Indebtedness of a Guarantor may give the notice; provided,
however, that if an issue of Senior Indebtedness of a Guarantor has a
Representative, only the Representative may give the notice.
0
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The Trustee in its individual or any other capacity, may hold Senior
Indebtedness of a Guarantor with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 11 with respect to any Senior Indebtedness of a Guarantor which may
at any time be held by it, to the same extent as any other holder of Guarantor
Senior Indebtedness of such Guarantor; and nothing in Article 7 shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article 11
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 11.09. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of a Guarantor, the distribution may be made and the notice given to their
Representative (if any).
SECTION 11.10. Article 11 Not To Prevent Events of Default or Limit Right
To Accelerate. The failure of a Guarantor to make a payment on any of its
obligations by reason of any provision in this Article 11 shall not be construed
as preventing the occurrence of a default by such Guarantor under such
obligations. Nothing in this Article 11 shall have any effect on the right of
the Holders or the Trustee to make a demand for payment on a Guarantor pursuant
to Article 10.
SECTION 11.11. Trustee Entitled To Rely. Upon any payment or distribution
pursuant to this Article 11, the Trustee and the Holders shall be entitled to
rely (i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 11.02 are pending, (ii)
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to the Holders or (iii) upon the
Representatives for the holders of Senior Indebtedness of a Guarantor for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness of a Guarantor and other
Indebtedness of a Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 11. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of a Guarantor to participate in any payment or distribution
pursuant to this Article 11, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness of such Guarantor held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article 11,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 11.
SECTION 11.12. Trustee To Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of each
of the Guarantors as provided in this Article 11 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
81
SECTION 11.13. Trustee Not Fiduciary for Holders of Senior Indebtedness of
Guarantor. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness of a Guarantor and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to Holders or
the relevant Guarantor or any other Person, money or assets to which any holders
of Guarantor Senior Indebtedness of such Guarantor shall be entitled by virtue
of this Article 11 or otherwise.
SECTION 11.14. Reliance by Holders of Guarantor Senior Indebtedness of a
Guarantor on Subordination Provisions. Each Holder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any
Guarantor Senior Indebtedness of a Guarantor, whether such Guarantor Senior
Indebtedness of such Guarantor was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, or to continue to hold,
such Guarantor Senior Indebtedness of such Guarantor and such holder of
Guarantor Senior Indebtedness of such Guarantor shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Guarantor Senior Indebtedness of such
Guarantor.
SECTION 11.15. Defeasance. The terms of this Article 11 shall not apply to
payments from money or the proceeds of U.S. Government Obligations held in trust
by the Trustee for the payment of principal of and interest on the Notes
pursuant to the provisions described in Section 8.03.
ARTICLE 12
PLEDGE
------
SECTION 12.01. Grant of Security Interest. In order to secure the payment
of the principal of and premium, if any, and interest, if any, on all Notes
ratably from time to time Outstanding and the performance of the covenants
therein and herein contained and to declare the terms and conditions on which
such Notes are secured, the Issuer hereby grants, bargains, sells, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms to the Trustee,
and grants (the "Pledge") to the Trustee, for its benefit and for the benefit of
the Holders of Notes, a security interest in the Intercompany Notes held by the
Issuer and related Intercompany Guarantees and all proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any of the foregoing (the "Collateral"), other than in each case such Collateral
that may be released from the Pledge in accordance with Section 12.03 hereafter.
The security interest in the Collateral shall be a first priority security
interest. In addition, no amendment, modification or waiver of the terms of the
Intercompany Notes or Intercompany Guarantees shall be made by the Issuer
without the prior consent of the Holders of a majority of the aggregate
principal amount of Notes outstanding, other than certain immaterial amendments
which do not adversely affect the value of the Collateral or the rights of the
Holders, provided, that without the consent of each Holder of an outstanding
Note, no amendment to the Intercompany Notes may, among other things, (i) reduce
the percentage of holders who must consent to an amendment of the Intercompany
Notes, (ii) reduce the rate of or extend the time for payment of interest on the
Intercompany Notes, (iii) reduce or prepay the principal of or extend the stated
maturity of the Intercompany Notes, (iv) reduce the premium payable upon the
82
redemption of the Intercompany Notes or change the time at which the
Intercompany Notes may be redeemed, (v) make any Intercompany Note payable in
money other than U.S. dollars, (vi) make any change to the subordination
provisions of the Intercompany Guarantees that materially adversely affects the
rights of any holder of Intercompany Notes, or (vii) impair the right of any
holder of Intercompany Notes to receive payment of principal of, premium, if
any, and interest on such holder's Intercompany Notes on or after the due dates
therefor or to institute suit for the enforcement of any such payment on or with
respect to such holder's Intercompany Notes.
SECTION 12.02. Additional Collateral. Upon the issuance of Additional
Notes, the Issuer shall Pledge additional Collateral. Such additional Collateral
shall be of the same type as the existing Collateral and shall bear the same
proportionate relationship to the principal amount of the Additional Notes as
the then existing Collateral bears to the principal amount of the Notes then
outstanding.
SECTION 12.03. Release of Collateral. The rights, title and interest of the
Trustee in the Collateral, shall cease, terminate and become void if thereafter
the principal of and premium, if any, and interest on the Notes have been paid
to the Holders thereof and in case this Indenture shall terminate, and the
Trustee shall execute and deliver to the Issuer such instruments as the Issuer
shall require to evidence such termination.
Upon a redemption of Notes in part pursuant to Article 3 hereof, or a
purchase of Notes in part pursuant to Section 4.09 hereof and the offer to
purchase provisions under Section 4.06 hereof, the Issuer shall have the right
to obtain a pro rata release of the Collateral, based on the percentage of the
Notes redeemed or purchased.
SECTION 12.04. Trustee To Effectuate Pledge. Upon the occurrence of an
Event of Default, the Trustee, on behalf of the Holders of Notes, in addition to
any other rights or remedies available to it under this Indenture, may take such
action as it deems advisable to protect and enforce its rights in the
Collateral, including the institution of foreclosure proceedings. The proceeds
received by the Trustee from any foreclosure will be applied by the Trustee
first to pay the expenses of such foreclosure and fees and other amounts then
payable to the Trustee under this Indenture and, thereafter, to make payments on
the Notes.
ARTICLE 13
MISCELLANEOUS
-------------
SECTION 13.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. 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 Issuer or any Guarantor:
American Seafoods Corporation
Market Place Tower
83
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
[ ]
[address]
Attention:
The Issuer 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 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.
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 13.03. 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 Notes. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
SECTION 13.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Issuer to the Trustee to take or refrain from
taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
84
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) 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
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Notes Disregarded. In determining whether the Holders
of the required principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Issuer, any Guarantor or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any Guarantor shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which the Trustee knows are so owned shall be so disregarded. Subject
to the foregoing, only Notes outstanding at the time shall be considered in any
such determination.
SECTION 13.07. 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 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the State of
New York. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13.10. No Recourse Against Others. A director, officer, employee or
stockholder of the Issuer or any Guarantor shall not have any liability for any
obligations of the Issuer or any Guarantor under the Notes, the Guarantees or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
SECTION 13.11. Successors. All agreements of the Issuer and each Guarantor
in this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
85
SECTION 13.12. 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 13.13. 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.
86
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
AMERICAN SEAFOODS CORPORATION.
By:
-------------------------------------
Name:
Title:
American Seafoods Holdings, LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN SEAFOODS GROUP LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN SEAFOODS INTERNATIONAL LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
NEW BEDFORD SEAFOODS LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
[Indenture Signature Page]
THE XXXXXX GROUP LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN SEAFOODS PROCESSING LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN SEAFOODS COMPANY LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN CHALLENGER LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
AMERICAN DYNASTY LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
[Indenture Signature Page]
AMERICAN TRIUMPH LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
OCEAN ROVER LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
NORTHERN EAGLE LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
OCEAN HAWK LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
NORTHERN XXXXXX LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
[Indenture Signature Page]
KATIE XXX LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
SOUTHERN PRIDE CATFISH LLC,
as Guarantor
By:
-------------------------------------
Name:
Title:
SOUTHERN PRIDE CATFISH TRUCKING, INC.,
as Guarantor
By:
-------------------------------------
Name:
Title:
[Indenture Signature Page]
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
Name:
Title:
[Indenture Signature Page]
EXHIBIT A
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
THE COMPANY MAY SUBSEQUENTLY ISSUE NOTES THAT ARE IDENTICAL IN ALL MATERIAL
RESPECTS TO THIS NOTE BUT HAVE ORIGINAL ISSUE DISCOUNT. IN SUCH CASE, THE HOLDER
OF THIS NOTE WILL EXCHANGE A PORTION OF HIS NOTES FOR SUCH NEWLY ISSUED NOTES
WITH ORIGINAL ISSUE DISCOUNT. THE AGGREGATE PRINCIPAL AMOUNT OF NOTES OWNED BY
SUCH HOLDER, HOWEVER, WILL NOT CHANGE AS A RESULT OF SUCH EXCHANGE. WITH RESPECT
TO SUCH NEWLY ISSUED NOTES WITH ORIGINAL DISCOUNT, A HOLDER MAY OBTAIN THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, THE ISSUE PRICE AND THE YIELD
TO MATURITY BY SUBMITTING A WRITTEN REQUEST TO THE TRUSTEE.
No. ______ $_________________
% Note due 2013
CUSIP No. ____________
AMERICAN SEAFOODS CORPORATION., a Delaware 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 Note attached
hereto]/1/ on , 2013, subject to extension as provided herein.
Interest Payment Dates:
Record Dates:
----------
/1/ Use the Schedule of Increases and Decreases language for a Global Note.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
AMERICAN SEAFOODS CORPORATION.
By:
-------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
[ ],
as Trustee, certifies that this is
one of the Notes referred to in the
Indenture.
By:
-------------------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF GLOBAL NOTE]
% Note due 2013
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Indenture (as defined).
1. Interest; Extension of Maturity
-------------------------------
AMERICAN SEAFOODS CORPORATION., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Issuer"), promises to pay interest on the principal
amount of this Note (the "Note") at the rate per annum shown above. The Issuer
shall pay interest from , or from the most recent date to which
interest has been paid or provided for, payable monthly in arrears on the last
day of each month, to Holders of record at the close of business on the 25/th/
day of such month, commencing , 2003.
Prior to , 2008, the Issuer will be permitted to defer interest
payments on the Notes if and for so long as either (x) the Fixed Charge Coverage
Ratio of Holdings for the twelve-month period ended on any June 30, September 30
or December 31, or (y) the Adjusted Fixed Charge Coverage Ratio of Holdings for
the twelve-month period ended on any March 31, as applicable, in either case for
the most recently ended period for which internal financial statements are
available, is less than the applicable Interest Deferral Threshold, unless a
default in payment of interest, principal or premium, if any, on the Notes has
occurred and is continuing, or any other Event of Default with respect to the
Notes has occurred and is continuing and the Notes have been accelerated as a
result of the occurrence of such Event of Default (any such period, a "Mandatory
Interest Deferral Period"). The interest payments will be deferred under this
provision from the time the Issuer provides the Trustee with a calculation
demonstrating that such deferral is permitted (provided, however, that such
calculation shall be provided to the Trustee not later than 45 days after the
end of the applicable quarter) until such time as the Issuer provides the
Trustee with a calculation demonstrating that such deferral is no longer
permitted (provided, however, that such calculation shall be provided to the
Trustee not later than 45 days after the end of the applicable quarter) or, if
earlier, until such time as a default in payment of interest, principal or
premium, if any, on the Notes has occurred or any other Event of Default with
respect to the Notes has occurred and is continuing and the Notes have been
accelerated as a result of the occurrence of such Event of Default. Interest
payments on the Notes will not be deferred under this provision for more than 24
months in the aggregate or beyond , 2008.
In addition, between , 2008 and , 2013, but not after ,
2013, the Issuer may at its election defer interest on the Notes on one occasion
for not more than 10 months (the "Optional Interest Deferral Period") by
delivering to the Trustee a copy of a resolution of the Issuer's Board of
Directors certified by an Officers' Certificate to the effect that, based upon a
good-faith determination of the Issuer's Board of Directors, such deferral is
reasonably necessary for bona fide cash management purposes, or to reduce the
likelihood of or avoid a default on the Senior Credit Facility; provided no such
deferral may be commenced, and any ongoing deferral shall cease, if a default in
payment of interest, principal or premium, if any,
on the Notes has occurred and is continuing, or any other Event of Default with
respect to the Notes has occurred and is continuing and the Notes have been
accelerated as a result of the occurrence of such Event of Default.
Deferred interest on the Notes will bear interest at a rate per annum of %
until paid in full. Following the end of any Mandatory Interest Deferral Period,
the Issuer will resume monthly payments of interest on the Notes, including
interest on deferred interest. At the end of any Mandatory Interest Deferral
Period, all interest on the Notes deferred at any time prior to the end of such
Mandatory Interest Deferral Period (including during any prior Mandatory
Interest Deferral Period), together with interest accrued on such deferred
interest during any such Mandatory Interest Deferral Period (such amount, as
determined at the end of any Mandatory Interest Deferral Period, the "Deferred
Interest"), will be repaid by the Issuer in one or more equal quarterly
installments beginning on the third interest payment date following the quarter
in which the Fixed Charge Coverage Ratio, or the Adjusted Fixed Charge Coverage
Ratio, as applicable, of Holdings was equal to or greater than the Interest
Deferral Threshold, and ending on , 2008. All Deferred Interest
attributable to a Mandatory Interest Deferral Period ending on ______, 2008,
shall be immediately due and payable on such date. The Issuer may prepay all or
part of the Deferred Interest, at any time other than during an interest
deferral period. If the Issuer prepays less than all of the Deferred Interest,
the Trustee shall apply such prepayment in the order of maturity to the
remaining Deferred Interest payments. If a subsequent Mandatory Interest
Deferral Period commences before the Deferred Interest is paid in full the
Issuer shall discontinue the quarterly repayments of Deferred Interest for the
duration of such period and the amount of Deferred Interest shall be
recalculated at the end of such subsequent Mandatory Interest Deferral Period
and repaid in one or more equal quarterly installments as described above. On
the first interest payment date following the end of the Optional Interest
Deferral Period, the Issuer must pay all deferred interest and accrued interest
thereon.
The Notes will mature on , 2013. The Issuer may extend the maturity
of the Notes for up to two additional successive five-year terms, if the Fixed
Charge Coverage Ratio of Holdings for the most recent twelve-month period ended
on June 30, September 30 or December 31, or the Adjusted Fixed Charge Coverage
Ratio of Holdings for the twelve-month period ended on any March 31, in each
case for the most recent period ended at least 45 days prior to the end of the
then current term, is equal to or greater than , and provided that as of the
scheduled maturity date (i) no Event of Default has occurred and is continuing
with respect to the Notes; (ii) no event of default has occurred and is
continuing with respect to any Indebtedness of the Issuer or a Significant
Subsidiary; and (iii) there is no interest due but unpaid on the Notes or any
Indebtedness of the Issuer, other than Indebtedness that is not Indebtedness for
borrowed money up to an aggregate amount of $1,000,000.
2. Method of Payment
-----------------
The Issuer shall pay interest on the Notes (except defaulted interest) to
the Persons who are registered holders of Notes at the close of business on the
25/th/ day of the month of the interest payment date even if Notes are canceled
after the record date and on or before the interest payment date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
shall pay principal, premium, if any, and interest in money of the United
States to holders in the U.S. Payments in respect of the Notes represented by a
Global Note (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. The Issuer will make all payments in respect of a
certificated Note (including principal, premium, if any, and interest), and the
Notes may be exchanged or transferred, at office or agency of the Issuer in the
Borough of Manhattan, The City of New York (which initially shall be the office
of the Trustee maintained for such purpose at The Depository Trust Issuer , 00
Xxxxx Xxxxxx, Xxx Xxxx, XX 10041), except that, at the option of the Issuer,
payment of interest may be made by check mailed to the Holders at their
registered addresses; provided, however, that payments on the Notes may also be
made, in the case of a Holder of at least $1,000,000 aggregate principal amount
of Notes, 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. Paving Agent and Registrar
--------------------------
Initially, the Trustee will act as Paying Agent and will act as
Registrar. The Issuer may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Issuer or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Issuer issued the Notes under an Indenture dated as of , 2003
(the "Indenture"), among the Issuer, the Guarantors and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
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 Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the TIA for a
statement of such terms and provisions.
This Note is one of the [Original] [Additional] Notes referred to in the
Indenture. The Notes include the Original Notes and any Additional Notes. The
Original Notes and any Additional Notes shall be part of the same series issued
and would vote together on all matters. The Indenture imposes certain
limitations on the ability of the Issuer and its Restricted Subsidiaries to,
among other things, incur Indebtedness and issue Disqualified Stock and
Preferred Stock; pay dividends on, and redeem, capital stock and redeem
Indebtedness that is subordinate in right of payment to the Notes; make certain
other Restricted Payments, including Investments; enter into consensual
restrictions on the payment of certain dividends and distributions by 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 each of Holdings and ASG to consolidate or merge with or into or
wind up into any other Person or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of their property or assets in one
or more related transactions to any Person.
To guarantee the due and punctual payment of the principal and interest on
the Notes and all other amounts payable by the Issuer under the Indenture and
the Notes when and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Indenture, the Guarantors have jointly and severally, fully and unconditionally
guaranteed the Guaranteed Obligations on a subordinated basis pursuant to the
terms of the Indenture.
5. Optional Redemption
-------------------
At any time and from time to time on or after , 2008, the Notes will
be redeemable, at the Issuer's option, in whole or in part upon not less than 30
nor more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address. Any such redemption and notice may, in the Issuer's
discretion, be subject to the satisfaction of one or more conditions precedent.
The Notes will be so redeemable at the following redemption prices (expressed as
a percentage of principal amount), plus accrued and unpaid interest, if any, to
the relevant 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 ___________ of the
years set forth below:
Redemption
Period Price
2008.................... %
2009.................... %
2010.................... %
2011 and thereafter..... 100.00%
At any time prior to ____________ , 2008, the Notes may also be redeemed in
whole or in part at the option of the Issuer, upon not less than 30 nor more
than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to the sum of the present values
of the redemption price of such Note at the first optional redemption date
described above and all required interest payments (excluding accrued but unpaid
interest) due on such Note through the first optional redemption date,
discounted to the date of such redemption (the "Redemption Date") on a monthly
basis (assuming 360-day years consisting of twelve 30-day months) at the
Treasury Rate plus 50 basis points, 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).
6. Sinking Fund
------------
The Notes 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 Notes to
be redeemed at his or her registered address. Notes may be redeemed in part. If
money sufficient to pay the redemption
price of and accrued and unpaid interest on all Notes (or portions thereof) to
be redeemed on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
8. Repurchase of Notes at the Option of Holders upon Change of Control
-------------------------------------------------------------------
Upon a Change of Control, any Holder of Notes will have the right, subject
to certain conditions specified in the Indenture, to cause the Issuer to
repurchase all or any part of the Notes of such Holder at a purchase price equal
to 101% of the principal amount of the Notes 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.
9. Subordination
-------------
Each Guarantee is subordinated to Guarantor Senior Indebtedness of the
applicable Guarantor, as defined in the Indenture. To the extent provided in the
Indenture, Guarantor Senior Indebtedness of the applicable Guarantor must be
paid before the Note Guarantee of such Guarantor may be paid. Each Guarantor
agrees, and each Holder by accepting a Note agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give it
effect and appoints the Trustee as attorney-in-fact for such purpose.
10. Transfer; Exchange
------------------
The Notes are in registered form without coupons. A Holder may transfer or
exchange Notes 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 Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) or to transfer or exchange any Notes for a period of 15 days prior to
a selection of Notes to be redeemed.
11. Persons Deemed Owners
---------------------
The registered Holder of this Note may be treated as the owner of it for
all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Issuer at its
written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Issuer and not to the Trustee for payment.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuer at any time may terminate some of
or all its obligations under the Notes and the Indenture if the Issuer deposits
with the Trustee money or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may
be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Notes 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 Notes and (ii) any Default or compliance with any
provision may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder of
Notes, the Issuer and the Trustee may amend the Indenture or the Notes (1) to
cure any ambiguity, omission, defect or inconsistency; (2) to comply with
Article 5 of the Indenture; (3) to provide for uncertificated Notes in addition
to or in place of certificated Notes; (4) to make any change in Article 10 or
Article 12 of the Indenture that would limit or terminate the benefits available
to any holder of Senior Indebtedness (or Representatives therefor) under Article
10 or Article 12 of the Indenture; (5) to add additional Note Guarantees with
respect to the Notes or to secure the Notes; (6) to add to the covenants of the
Issuer for the benefit of the Holders or to surrender any right or power herein
conferred upon the Issuer; (7) to comply with any requirement of the SEC or in
connection with qualifying, or maintaining the qualification of, this Indenture
under the TIA; (8) to make any change that does not adversely affect the rights
of any Holder; (9) to provide for the issuance of the Additional Notes; or (10)
to enter into one or more supplemental indentures to effect any of the
amendments or to set forth the terms of any Additional Notes in accordance with
the provisions of the Indenture.
15. 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 Issuer) and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable, subject to Acceleration
Forbearance Periods as set forth below. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Issuer occurs,
the principal of and interest on all the Notes 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 Notes may rescind any such acceleration with respect
to the Notes 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. 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 Notes 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 Notes 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 Notes 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 Notes 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.
16. Acceleration Forbearance Period
-------------------------------
So long as the Notes are guaranteed by at least one of the Guarantors,
until the earlier of (a) the date on which no Designated Senior Indebtedness
(including any guarantee of other Designated Senior Indebtedness) of any
Guarantor shall be outstanding and (b) [ ], 2008, if an Event of Default
(other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Issuer) has occurred and is continuing,
without in any way limiting the right of any Holder to exercise any other remedy
such Holder may have (including the right to bring suit against the Issuer or
any Guarantor for payment of any and all amounts of principal, premium and
interest due and payable), the principal of all the Notes may not be declared to
be due and payable unless and until the Acceleration Forbearance Period has
expired.
17. Subsequent Issuance
-------------------
The Issuer may only issue Additional Notes in accordance with Section 4.14
of the Indenture.
The Issuer agrees, and by purchasing the Notes each Holder shall be deemed
to have agreed, that upon the issuance by the Issuer of any Additional Notes, if
the Issuer determines that such Additional Notes should be assigned a different
CUSIP number than the Original Notes, immediately following such issuance, a
portion of each holder's Original Notes and/or Additional Notes, as applicable,
will automatically, without any action by such holder, be exchanged (the
"Automatic Exchange") for a portion of each other holder's Notes, such that
immediately after the Automatic Exchange, each Holder will hold Notes issued
prior to the date of issuance of such Additional Notes and such Additional Notes
in the same proportion as the ratio of the then outstanding aggregate principal
amount of Notes such to the then outstanding aggregate principal amount of such
Additional Notes. The aggregate stated principal amount of Notes owned by each
holder will not change as a result of the Automatic Exchange. Immediately
following the Automatic Exchange, the Issuer and the Trustee will instruct DTC
to facilitate the combination of the Notes issued prior to the date of issuance
of such Additional Notes and such Additional Notes into indivisible units ("Unit
Notes").
At least [ten (10)] business days prior to the closing of the issuance of
Additional Notes that will result in an Automatic Exchange, the Issuer shall
notify the Trustee, in writing of its intention to consummate such subsequent
issuance and shall instruct the Trustee and DTC to take any action necessary to
effect the Automatic Exchange. Such notice may be revoked at any time prior to
the date fixed for such Automatic Exchange.
The Issuer agrees, and by acceptance of beneficial ownership in the Notes
each beneficial owner of the Notes shall be deemed to have agreed, that (1) the
Issuer will report any "original issue discount" (as determined for U.S. federal
income tax purposes) associated with the Original Notes and Additional Notes
among all beneficial owners in proportion to their ownership of the aggregate
principal amount of Notes and (2) each beneficial owner of the Notes shall
report such original issue discount in this manner and shall not take an
inconsistent position for any applicable tax purpose.
18. Trustee Dealings with the Issuer
--------------------------------
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 Notes and may otherwise deal with and collect obligations owed to it
by the Issuer or its Affiliates and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee.
19. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder of the Issuer or any Guarantor
shall not have any liability for any obligations of the Issuer or any Guarantor
under the Notes, the Guarantees or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
20. Authentication
--------------
This Note 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 Note.
21. 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/GIMIA (=Uniform Gift to Minors Act).
22. Governing Law
-------------
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
23. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
24. Tax Treatment.
--------------
By acceptance of beneficial ownership interest in this Notes each
beneficial Owner of Notes will be deemed to have agreed, (1) to treat itself as
owner of the Notes for all purposes, including the preparation and filing of any
United States federal, state, local or foreign tax return, report, or other
information; (2) to treat the Notes as indebtedness for all tax purposes and (3)
to treat the acquisition of an IDS as the acquisition of the Notes and Common
Stock which are represented by the IDS and to allocate the purchase price of the
IDS between the Notes and the Common Stock in the proportions as $__________ and
$ _________respectively.
25. Pledge
------
To secure the payment of the principal of, premium, if any, and interest,
if any, on all Notes ratably from time to time outstanding and the performance
of the covenants will be secured, the Issuer hereby grants, bargains, sells,
conveys, assigns, transfers, mortgages, pledges, sets over and confirms to the
Trustee, and grants to the Trustee, for its benefit and for the benefit of the
Holders of Notes, a security interest in the Intercompany Notes held by the
Issuer and related Intercompany Guarantees (the "Collateral"), pursuant to the
terms set forth in Article 12 of the Indenture.
The Issuer will furnish to any Holder of Notes upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the
books of the Issuer. The agent may substitute another to act for him.
________________________________________________________________________________
Date: _____________________ Your Signature: ______________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Principal
amount of
Amount of Amount of this Global Signature of
decrease in increase Note authorized
Principal in Principal following signatory of
Amount of Amount such Trustee or
Date of this Global of this decrease or Notes
Exchange Note Global Note increase Custodian
--------------------------------------------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.06 (Asset Sale) or 4.09 (Change of Control) of the Indenture, check
the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Note purchased by the Issuer
pursuant to Section 4.06 or 4.09 of the Indenture, state the amount:
Date:__________________ Your Signature:_____________________________________
(Sign exactly as your name appears on the other side of the Note)
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 SUPPLEMENTAL INDENTURE FOR NEW GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of , among
[GUARANTOR] (the "New Guarantor"), an indirect subsidiary of AMERICAN SEAFOODS
CORPORATION. (or its successor), a Delaware corporation (the "Issuer "),
[EXISTING GUARANTORS] and [ ], 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 Issuer and [OLD GUARANTORS] (the "Existing Guarantors") have
heretofore executed and delivered to the Trustee an Indenture (the "Indenture")
dated as of , 2003, providing for the issuance of an unlimited aggregate
principal amount of notes (the "Notes") and [Original Notes have been issued and
our outstanding under the Indenture];
WHEREAS Section 4.12 of the Indenture provides that under certain
circumstances the Issuer 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 Issuer's obligations under the
Notes pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer
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 Issuer, the Existing Guarantors and the Trustee mutually covenant
and agree for the equal and ratable benefit of the holders of the Notes as
follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and
severally with all the Existing Guarantors, to unconditionally guarantee the
Issuer's obligations under the Notes 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 Notes.
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 shall form a part of the
Indenture for all purposes, and every holder of Notes 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.
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.
7. Definitions. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
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:
AMERICAN SEAFOODS CORPORATION.
By:
-------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
-------------------------------------
Name:
Title:
[ ], as Trustee
By:
-------------------------------------
Name:
Title:
