EXHIBIT 4.1
EXECUTION COPY
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BERRY PLASTICS CORPORATION
BPC HOLDING CORPORATION
BERRY IOWA CORPORATION
BERRY-CPI PLASTICS CORP.
12 1/4% SENIOR SUBORDINATED NOTES DUE 2004
______________________
INDENTURE
Dated as of April 21, 1994
______________________
______________________
UNITED STATES TRUST COMPANY OF NEW YORK
______________________
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06;7.07
(c) 7.06;12.02
(d) 7.06
314(a) 4.03; 12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.Q4
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05;12.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 6.07;9.02
(b) 6.07
(c) 2.13
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions 1
Section 1.02. Other Definitions 10
Section 1.03. Incorporation by Reference of Trust Indenture Act 10
Section 1.04. Rules of Construction 11
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating 11
Section 2.02. Execution and Authentication 12
Section 2.03. Registrar and Paying Agent 12
Section 2.04. Paying Agent to Hold Money in Trust 13
Section 2.05. Lists of Holders of the Notes 13
Section 2.06. Transfer and Exchange 13
Section 2.07. Replacement Notes 15
Section 2.08. Outstanding Notes 15
Section 2.09. Treasury Notes 16
Section 2.10. Temporary Notes 16
Section 2.11. Cancellation 16
Section 2.12. Defaulted Interest 16
Section 2.13. Record Date 17
Section 2.14. CUSIP Number 17
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee 17
Section 3.02. Selection of Notes to Be Redeemed 18
Section 3.03. Notice of Redemption 18
Section 3.04. Effect of Notice of Redemption 19
Section 3.05. Deposit of Redemption Price 19
Section 3.06. Notes Redeemed in Part 19
Section 3.07. Optional Redemption 19
Section 3.08. Mandatory Redemption 20
Section 3.09. Offer to Purchase by Application of Excess Proceeds 20
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes 22
Section 4.02. Maintenance of Office or Agency 22
Section 4.03. Reports 23
Section 4.04. Compliance Certificate 23
Section 4.05. Taxes 24
Section 4.06. Stay, Extension and Usury Laws 24
Section 4.07. Restricted Payments 24
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries 25
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Section 4.09. Incurrence of Indebtedness and Issuance of
Disqualified Stock 26
Section 4.10. Asset Sales 27
Section 4.11. Transactions with Affiliates 28
Section 4.12. Liens 28
Section 4.13. Additional Guarantees 29
Section 4.14. Corporate Existence 29
Section 4.15. Offer to Repurchase Upon Change of Control 29
Section 4.16. No Senior Subordinated Indebtedness 30
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets 30
Section 5.02. Successor Corporation Substituted 31
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default 31
Section 6.02. Acceleration 33
Section 6.03. Other Remedies 34
Section 6.04. Waiver of Past Defaults 34
Section 6.05. Control by Majority 35
Section 6.06. Limitation on Suits 35
Section 6.07. Rights of Holders of Notes to Receive Payment 35
Section 6.08. Collection Suit by Trustee
Section 6.09. Trustee May File Proofs of Claim 36
Section 6.10. Priorities 36
Section 6.11. Undertaking for Costs 37
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee 37
Section 7.02. Rights of Trustee 38
Section 7.03. Individual Rights of Trustee 38
Section 7.04. Trustee's Disclaimer 39
Section 7.05. Notice of Defaults 39
Section 7.06. Reports by Trustee to Holders of the Notes 39
Section 7.07. Compensation and Indemnity 39
Section 7.08. Replacement of Trustee 40
Section 7.09. Successor Trustee by Merger, etc 41
Section 7.10. Eligibility; Disqualification 41
Section 7.11. Preferential Collection of Claims Against Company 41
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance 42
Section 8.02. Legal Defeasance and Discharge 42
Section 8.03. Covenant Defeasance 42
Section 8.04. Conditions to Legal or Covenant Defeasance 43
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Section 8.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions 44
Section 8.06. Repayment to Company 44
Section 8.07. Reinstatement 45
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes 45
Section 9.02. With Consent of Holders of Notes 46
Section 9.03. Compliance with Trust Indenture Act 47
Section 9.04. Revocation and Effect of Consents 47
Section 9.05. Notation on or Exchange of Notes 47
Section 9.06. Trustee to Sign Amendments, etc 48
ARTICLE 10
NOTE GUARANTEES
Section 10.01. Note Guarantee 48
Section 10.02. Subordination 49
Section 10.03. Liquidation; Dissolution; Bankruptcy 50
Section 10.04. Default on Designated Senior Indebtedness of the Guarantor 50
Section 10.05. Acceleration of Notes 51
Section 10.06. When Distribution Must Be Paid Over 51
Section 10.07. Notice by a Guarantor 52
Section 10.08. Subrogation 52
Section 10.09. Relative Rights 52
Section 10.10. Subordination May Not Be Impaired By Any Guarantor 52
Section 10.11. Distribution or Notice to Representative 52
Section 10.12. Rights of Trustee and Paying Agent 53
Section 10.13. Authorization to Effect Subordination 53
Section 10.14. Limitation of Guarantor's Liability 53
Section l0.15. Execution and Delivery of Note Guarantee 54
Section 10.16. Guarantors May Consolidate, etc., on Certain Terms 54
Section 10.17. Releases Following Sale of Assets 54
ARTICLE 11
SUBORDINATION
Section 11.01. Subordination 55
Section 11.02. Liquidation; Dissolution; Bankruptcy 55
Section 11.03. Default on Senior Indebtedness 55
Section 11.04. Acceleration of Notes 56
Section 11.05. When Distribution Must Be Paid Over 56
Section 11.06. Notice by Company 57
Section 11.07. Subrogation 57
Section 11.08. Relative Rights 57
Section 11.09. Subordination May Not Be Impaired By Company 58
Section 11.10. Distribution or Notice to Representative 58
Section 11.11. Rights of Trustee and Paying Agent 58
Section 11.12. Authorization to Effect Subordination 58
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ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls 59
Section 12.02. Notices 59
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes 60
Section 12.04. Certificate and Opinion as to Conditions Precedent 60
Section 12.05. Statements Required in Certificate or Opinion 60
Section 12.06. Rules by Trustee and Agents 61
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders 61
Section 12.08. Governing Law 61
Section 12.09. No Adverse Interpretation of Other Agreements 61
Section 12.10. Successors 61
Section 12.11. Severability 61
Section 12.12. Counterpart Originals 61
Section 12.13. Table of Contents, Headings, etc 62
EXHIBITS
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF NOTATION ON SENIOR SUBORDINATED
NOTE RELATING TO THE NOTE GUARANTEES
iv
INDENTURE dated as of April 21, 1994 among Berry Plastics Corporation, a
Delaware corporation (the "Company"), BPC Holding Corporation, a Delaware
corporation ("Holding"), Berry Iowa Corporation, a Delaware corporation ("Berry~
Iowa "), and Berry-CPI Plastics Corp., a Delaware corporation ("Berry-CPI
Plastics"; Berry-CPI Plastics, together with Holding and Berry Iowa, the
"Guarantors"), and United States Trust Company of New York, as trustee (the
"Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 12 1A % Senior Subordinated Notes due 2004 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary' of such specified Person
and (ii) Indebtedness encumbering any asset acquired by such specified Person.
"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 meattings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
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; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control. Neither Chase Bank, CITEI, nor their respective
Affiliates shall be deemed an Affiliate of the Company or any of its
Subsidiaries for purposes of this definition by reason of its direct or indirect
beneficial ownership of 15 % or less of the Common Stock of Holding or by reason
of any employee thereof being appointed to the Board of Directors of Holding.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ASSET PURCHASE AGREEMENT" means the agreement pursuant to which Berry-CPI
Plastics will acquire substantially all of the assets and assume certain
indebtedness of CPI Plastics, Inc., CP Illinois, Inc. and CP Ohio, Inc.
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition of
any property or assets of the Company or any Subsidiary (including by way of a
sale-and-leaseback) other than sales of inventory in the ordinary course of
business (provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company shall be governed by Sections
4.15 and 5.01 hereof), or (ii) the issuance or sale of Equity Interests of any
of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in
a single transaction or a series of related transactions, (a) that have a fair
market value in excess of $250,000, or ~) for net proceeds in excess of
$250,000. For purposes
of this definition, the term "Asset Sale" shall not include (I) the transfer of
assets by the Company to a Wholly Owned Subsidiary of the Company or by a Wholly
Owned Subsidiary of the Company to the Company or to another Wholly Owned
Subsidiary of the Company, (ii) any Restricted Payment, dividend or purchase or
retirement of Equity Interests permitted under Section 4.07 hereof or (iii) the
issuance or sale of Equity Interests of any Subsidiary of the Company, PROVIDED
that such Equity Interests are issued or sold in consideration for the
acquisition of assets by such Subsidiary or in connection with a merger or
consolidation of another Person into such Subsidiary.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"BORROWING BASE" means, as of any date, an amount equal to the sum of (a)
85% of the face amount of all accounts receivable owned by the Company and its
Subsidiaries as of such date that are not more than 90 days past due, and ~) 65%
of the book value (calculated on a FIFO basis) of all inventory owned by the
Company and its Subsidiaries as of such date, all calculated on a consolidated
basis and in accordance with GAAP. To the extent that information is not
available as to the amount of accounts receivable or inventory as of a specific
date, the Company may utilize the most recent available information for purposes
of calculating the Borrowing Base.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL 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 so required to be capitalized on a balance sheet prepared
in accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and 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, such partnership.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months from
the date of acquisition and overnight bank deposits, in each case with any
lender party to the New Revolving Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500 million, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Corporation and in each case
maturing within six months after the date of acquisition.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of Holding's or the Company's assets to any person or group
(as such term is used in Section 13(d)(3) of the Exchange Act)
2
(other than the Principals and their Related Parties), (ii) the adoption of a
plan relating to the liquidation or dissolution of Holding or the Company, (iii)
the acquisition by any person or group (as such term is used in Section 13(d)(3)
of the Exchange Act) (other than by the Principals and their Related Parties) of
a direct or indirect interest in more than 35% of the-voting power of the voting
stock of Holding by way of purchase, merger or consolidation or otherwise if (a)
such person or group (as defined above) (other than the Principals and their
Related Parties) owns, directly or indirectly, more of the voting power of the
voting stock of Holding than the Principals and their Related Parties and (b)
such acquisition occurs prior to the Initial Public Offering, (iv) the
acquisition by any person or group (as such term is used in Section 1 3(d)(3) of
the Exchange Act) (other than by the Principals and their Related Parties) of a
direct or indirect interest in more than 50% of the voting power of the voting
stock of Holding by way of purchase, merger or consolidation or otherwise if
such acquisition occurs subsequent to the Initial Public Offering or (v) the
first day on which a majority of the members of the Board of Directors of
Holding are not Continuing Directors.
"CHASE BANK" means The Chase Manhattan Bank, N.A.
"CITHI" means The CIT Group/Equity Investments, Inc.
"CLASS A COMMON STOCK" means the Class A Common Stock, $.OO()05 par value
per share, of Holding.
"COMMON STOCK OF HOLDING" means the Class A Common Stock and the Class B
Common Stock, $.0()005 par value per share, of Holding.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (a) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing Consolidated
Net Income), plus ~) provision for taxes based on income or profits of such
Person for such period, to the extent such provision for taxes was included in
computing Consolidated Net Income, plus (c) Consolidated Interest Expense of
such Person for such period to the extent such expense was deducted in computing
Consolidated Net Income, plus (d) Consolidated Depreciation and Amortization
Expense of such Person for such period to the extent such expense was deducted
in computing Consolidated Net Income, plus (e) other non-cash charges
(including, without limitation, repricing of stock options, to the extent
deducted in computing Consolidated Net Income; but excluding any non-cash charge
that requires an accrual or reserve for cash expenditures in future periods or
which involved a cash expenditure in a prior period), in each case, on a
consolidated basis and determined in accordance with GAAP.
"CONSOLIDATED STEP-UP DEPRECIATION AND AMORTIZATION" means, with respect
to any Person for any period, the total amount of depreciation related to the
write-up of assets and amortization of such Person for such period on a
consolidated basis as determined in accordance with GAAP.
CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" means, with respect to
any Person for any period, the total amount of depreciation and amortization
expense (including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) of such
Person for such period on a consolidated basis as determined in accordance with
GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for any
period, the sum of (a) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or
3
accrued, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, non-cash interest
payments, the interest component of capital leases, and net payments (if any)
pursuant to Hedging Obligations), (b) commissions, discounts and other fees and
charges paid or accrued with respect to letters of credit and bankers'
acceptance financing, and (c) interest actually paid by such Person or its
Subsidiaries under a Guarantee of Indebtedness of any other Person.
"CONSOLIDATED NET IN COME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED, that (i) the Net Income of any Person that is not a 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 paid to the referent
Person or a Wholly Owned Subsidiary thereof that is a Guarantor, (ii) the Net
Income of any Person that is a Subsidiary (other than a wholly Owned Subsidiary)
shall be included only to the extent of the amount of dividends or distributions
paid to the referent Person or a Wholly Owned Subsidiary thereof that is a
Guarantor, (iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded and (iv) the cumulative effect of a change in accounting principles
shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of Preferred Stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such Preferred Stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assetS of a going concern business made within 16 months after the acquisition
of such business) subsequent to the Issuance Date in the book value of any asset
owned by such Person or a consolidated Subsidiary of such Person, (y) all
investments as of such date in unconsolidated Subsidiaries and in Persons that
are not Subsidiaries (except, in each case, Permitted Investments), and (z) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of Holding who (i) was a member of such Board of
Directors on the Issuance Date or (ii) was nominated for election or elected to
such Board of Directors with the affirmative vote of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give written notice to the Company.
"CPI ACQUISITION" means, the acquisition of substantially all of the
assets and the assumption of certain indebtedness of CPI Plastics, Inc., CP
Illinois, Inc. and CP Ohio, Inc. by Berry-CPI Plastics pursuant to the Asset
Purchase Agreement.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
4
"DESIGNATED SENIOR INDEBTEDNESS" means (i) the Senior Bank Indebtedness
and (ii) any other Senior Indebtedness (a) permitted to be incurred under this
Indenture the principal amount of which is $15 million or more and ~) designated
in the instrument creating or evidencing such Senior Indebtedness as "Designated
Senior Indebtedness."
"DISQUALIFIED STOCK" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to July 15,
2004.
"DISTRIBUTION" means, for purposes of Articles 10 and 11, a distribution
consisting of cash, securities or other property, by set-off or otherwise.
"EQUITY INTERESTS" mean~ 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).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than under the New Revolving Credit Facility) in existence
on the Issuance Date, until such amounts are repaid.
"FIXED CHARGES" means, with respect to any Person for any period, the sum
of (a) Consolidated Interest Expense of such Person for such period, whether
paid or accrued, to the extent such expense was deducted in computing
Consolidated Net Income and (1)) the product of (i) all cash dividend payments
(and non-cash dividend payments in the form of securities (other than
Disqualified Stock) of an issuer) on any series of Preferred Stock of such
Person, times (ii) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Subsidiaries incurs, assumes, guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues Preferred Stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of Preferred Stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. For purposes of
making the computation referred to above, acquisitions, dispositions and
discontinued operations (as determined in accordance with GAAP) that have been
made by the Company or any of its Subsidiaries, including all mergers and
consolidations, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be calculated on
a pro forma basis assuming that all such acquisitions, dispositions,
discontinued operations, mergers and consolidations (and the reduction of any
associated fixed charge obligations resulting therefrom) had occurred on the
first day of the four-quarter reference period.
5
"GAAP" means general]y accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issuance Date.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"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.
"GUARANTORS" means each of (i) Holding, Berry Iowa and Berry-CPI Plastics
and (ii) any other Person that executes a Note Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing Capital Lease
Obligations or the balance deferred and unpaid of the purchase price of any
property or representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, if and to the extent any of the
foregoing indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise included,
the Guarantee of any Indebtedness of such Person or any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time.
"INITIAL PUBLIC OFFERING" means a public offering of the Common Stock of
Holding that first results in the Common Stock of Holding becoming listed for
trading on a Stock Exchange.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees), advances or capital contributions (excluding commission, travel and
similar advances to officers, directors, consultants and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"ISSUANCE DATE" means the closing date for the sale and original issuance
of the Notes.
6
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York OR at a place of payment ARE authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding Business Day, and no interest shall accrue for the intervening
period.
"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).
"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, excluding, however, any gain (1,ut not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions), and
excluding any extraordinary gain but not loss), together with any related
provision for taxes on such extraordinary gain ~ut not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Company
or any of its Subsidiaries in respect of any Asset Sale, net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that are the subject of such Asset Sale
and any reserve for indenmification or adjustment in respect of the sale price
of such asset or assets.
"NEW REVOLVING CREDIT FACILITY" means the New Revolving Credit Facility,
dated as of the closing date of the Offering, by and among the Company and
Barclays Business Credit, Inc., providing for up to $28 million of borrowings,
including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING" means the public offering of the Units by the Company and
Holding.
"OFFICER" means, with respect to any unnatural Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
7
"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to Holding, any Subsidiary of
Holding or the Trustee.
"PERMITTED INVESTMENTS" means (a) any Investments in the Company or in a
Wholly Owned Subsidiary of the Company and that is engaged in the same or a
similar line of business as the Company and its Subsidiaries were engaged in on
the Issuance Date and (b) any Investments in Cash Equivalents.
"PERMITTED REFINANCING" means Refinancing Indebtedness if (a) the
principal amount of Refinancing Indebtedness does not exceed the principal
amount of Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of premiums, accrued interest and reasonable expenses
incurred in connection therewith); ~) the Refinancing Indebtedness has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (c) the Refinancing Indebtedness is subordinated
in right of payment to the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, 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 in the
payment of dividends or liquidation or any Disqualified Stock.
"PRINCIPAL" means each of Roberto Buaron and Akros Finanziaria, S.p.A.
"REFINANCING INDEBTEDNESS" means Indebtedness issued in exchange for, or
the proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness referred to in clauses (a) and (b) of the second paragraph
of Section 4.09 hereof.
"RELATED PARTY" means with respect to the Principal (A) in the case of an
individual, any spouse, sibling or descendant of such Principal (whether or not
such relationship arises from birth, adoption or marriage or despite such
relationship being dissolved by divorce) or (B) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding a controlling interest of which consist of such
Principal and/or such other Persons referred to in the immediately preceding
clause (A).
"REPRESENTATIVE" means, for purposes of Articles 10 and 11, the indenture
trustee or other trustee, agent or representative for any Senior Indebtedness
or, with respect to any Guarantor, for any Senior Indebtedness of such
Guarantor.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means any Investment other than a Permitted
Investment.
8
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR BANK INDEBTEDNESS" means the Indebtedness outstanding under the
New Revolving Credit Facility as such agreement may be restated, further
amended, supplemented or otherwise modified or replaced from time to time
hereafter, together with any refunding or replacement of any such Indebtedness.
"SENIOR INDEBTEDNESS" means (i) the Senior Bank Indebtedness and (ii) any
other Indebtedness permitted to be incurred by the Company or a Guarantor, as
the case may be, under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is PARI PASSU
with or subordinated in right of payment to the Notes or a Note Guarantee, as
the case may be. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company or a Guarantor, as the case
may be, (x) any Indebtedness of the Company or a Guarantor, as the case may be,
to Holding or to any of Holding's other Subsidiaries or other Affiliates, (y)
any trade payables or (z) any Indebtedness that is incurred in violation of this
Indenture.
"STOCK EXCHANGE" means the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity 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 owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"TAX SHARING AGREEMENT" means that certain Tax Sharing Agreement, dated as
of the closing date of the Offering, between the Company and Holding.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRUSTEE" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"UNITS" means the Notes of the Company and the Warrants of Holding.
"WARRANT" means any Warrant (as defined in the Warrant Agreement) from
time to time outstanding pursuant to the Warrant Agreement.
"WARRANT AGENT" means United States Trust Company of New York, until a
successor Warrant Agent shall have become such pursuant to the applicable
provisions of the Warrant Agreement and, thereafter, such successor.
"WARRANT AGREEMENT" means the Warrant Agreement dated as of April 21, 1994
between Holding and the Warrant Agent.
9
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the due date of such payment, by (b) the then outstanding
principal amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more wholly Owned Subsidiaries of such Person and one or
more wholly Owned Subsidiaries of such Person.
"1994 BPC HOLDING CORPORATION EXTRAORDINARY BONUS AWARD PLAN" means the
1994 Extraordinary Bonus Award Plan to be adopted by the Board of Directors of
BPC Holding Corporation prior to the consummation of the Offering.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
"Affiliate Transaction" .............................. 4.11
"Asset Sale Offer" ................................... 3.09
"Benefitted Party" ................................... 10.01
"Change of Control Offer" ............................ 4.15
"Change of Control Payment" .......................... 4.15
"Change of Control Payment Date" ..................... 4.15
"Covenant Defeasance" ................................ 8.03
"Event of Default" ................................... 6.01
"Excess Proceeds" .................................... 4.10
"Guarantor Payment Blockage Notice ................... 10.04
"incur" .............................................. 4.09
"Legal Defeasance" ................................... 8.02
"Note Guarantee" ..................................... 10.01
"Offer Amount" ....................................... 3.09
"Offer Period" ....................................... 3.09
"Paying Agent" ....................................... 2.03
"Payment Blockage Notice" ............................ 11.03
"Payment Default" .................................... 6.01
"Purchase Date" ...................................... 3.09
"Registrar" .......................................... 2.03
"Restricted Payments" ................................ 4.07
"Termination Date" ................................... 2.06
SECTION 1.03. INCORPORATION DY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
10
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a 14older of a Note; INDENTURE TO BE
QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company, the Guarantors and any successor
obligor upon the Notes or any Note Guarantee, as the case may be.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DAT1NG.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this indenture. The notation on each Note
relating to the Note Guarantee shall be substantially in the form set forth on
Exhibit B, which is part of this Indenture. The Notes may have notations,
legends or endorsements approved as to form by the Company and required by law,
stock exchange rule, agreements to which the Company or any Guarantor is subject
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issuable only in denominations of $1,000 and integral multiples
thereof.
11
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal shall be reproduce~ on the Notes and
may be in facsimile form. An Officer of each Guarantor shall sign the Note
Guarantee for such Guarantor by manual or facsimile signature.
If an Officer of the Company or a Guarantor whose signature is on a Note or
a Note Guarantee, as the case may be, no longer holds that office at the time
the Note is authenticated, the Note or the Note Guarantee, as the case may be,
shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Notes with the Note Guarantees endorsed
thereon for original issue up to an aggregate principal amount stated in
paragraph 4 of the Notes. The aggregate principal amount of Notes outstanding at
any time shall not exceed the amount set forth herein except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. 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 an
Agent to deal with the Company or any Guarantor or an Affiliate of the Company
or any Guarantor.
Any authenticating agent may resign at any time by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of the authenticating agent by giving written notice of
termination to the authenticating agent and the Company. Upon receiving notice
of such resignation or upon such termination by the Trustee, the Trustee may
appoint a successor authenticating agent acceptable to the Company, in which
case it shall so notify the Holders. Upon its appointment hereunder, any
successor authenticating agent shall become vested with all the rights, powers
and duties of its predecessor hereunder.
The Company shall agree, by separate instrument, to pay each authenticating
agent from time to time reasonable compensation for its services.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company and the Guarantors shall maintain (i) an office or agency where
Notes may be presented for registration of transfer or for exchange (including
any co-registrar, the "REGISTRAR") and (ii) an office or agency where Notes may
be presented for payment ("PAYING AGENT"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent, Registrar or co-registrar without prior notice to any Holder of a Note.
The Company shall notify the Trustee and the Trustee shall notify the Holders of
the Notes of the name and address of any Agent not a party to this Indenture.
The Company or any
12
Guarantor may act as Paying Agent, Registrar or co-registrar. The Company shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of the
Holders of the Notes or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, and interest on the Notes, and shall
notify the Trustee of any Default by the Company or any Guarantor in making any
such payment. While any such Default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a Guarantor)
shall have no further liability for the money delivered to the Trustee. If the
Company or a Guarantor acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders of the Notes all money held
by it as Paying Agent. Upon the occurrence of either event specified in Section
6.01(h) or (i), the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. LISTS OF HOLDERS OF THE NOTES.
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 of the Notes and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company arid/or any Guarantor shall furnish to
the Trustee at least seven Business Days before each interest payment date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders of the Notes, including the aggregate principal amount of
the Notes held by each thereof, and the Company and each Guarantor shall
otherwise comply with TIA ss. 312(a)
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) When Notes are presented to the Registrar with a request to register
the transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; PROVIDED, HOWEVER, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or by his attorney duly authorized in writing. To permit registrations
of transfer and exchanges, the Company shall issue and the Trustee shall
authenticate and deliver Notes at the Registrar's request, subject to such rules
as the Trustee may reasonably require.
Neither the Company nor the Registrar shall be required to (i) issue,
register the transfer of or exchange Notes during a period beginning at the
opening of business on a Business Day 15 days before
13
the day of any selection of Notes for redemption under Section 3.02 hereof or
(ii) register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
No service charge shall be made to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2. ~0, 3.06 or 9.05 hereof, which shall be paid
by the Company).
Prior to due presentment to the Trustee for registration of the transfer of
any Note, the Trustee, any AGENT, the Company and the Guarantors may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of, premium, if any,
and interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and neither the Trustee, any Agent, the Company nor the
Guarantors shall be affected by notice to the contrary.
(b) The following restrictions and related provisions on transfer shall
apply with respect to the
Notes:
(i) Until the Separation Date, no Note may be sold, assigned or otherwise
transferred to any Person unless simultaneously with such transfer,
the Trustee receives confirmation from the Warrant Agent for the
Warrants that the Holder thereof has requested a transfer to the same
transferee of one Warrant (subject to an adjustment under Section 14
of the Warrant Agreement) for each $1,000 aggregate principal amount
of Notes so transferred. In connection with the foregoing, upon
original issuance (if prior to the Separation Date) and, thereafter
until the provisions of Section ofSection2.06~)(ii) hereof have been
satisfied, the certificates evidencing the Notes will bear the
following legend:
"UNTIL THE EARLIEST TO OCCUR OF (I) OCTOBER 15, 1994, (II) SUCH
EARLIER DATE AS MAY BE DETERMINED BY DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPO~ON ("DU") WITH THE CONSENT OF BPC HOLDING CORPORATION
("HOLDING"), WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD, (III) IN
THE EVENT OF A CHANGE OF CONTROL (AS DEFINED IN THE INDENTURE (THE
"INDEN'IURE") GOVERNING THE 121A% SEMOR SUBORDINATED NOTES DUE 2004
(THE '1NOTES") OF BERRY PLASTICS CORPORATION ("BERRY")), THE DATE
BERRY MAILS N~CE THEREOF TO HOLDERS OF NOTES AND (iv) IN THE EVENT OF
AN ASSET SALE OFFER (AS DEFINED IN THE INDENTURE), THE DATE BERRY
MAILS NOTICE THEREOF TO HOLDERS OF NOTES, THE NOTES EVIDENCED HEREBY
MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED TO ANY PERSON
UNLESS, SIMULTANEOUSLY WITH SUCH TRANSFER, THE HOLDER HEREOF TRANSFERS
TO THE SAME TRANSFEREE FOR EACH ONE WARRANT (SUBJECT TO AN ADJUSTMENT
UNDER SE~ON 14 OF THE WARAANT AGREEMENT, DATED AS OF APRIL 21,1994,
BETWEEN HOLDING AND UNITED STATES TRUST COMPANY OF NEW YORK, AS
WARRANT AGENT) TO PURCHASE 1.13237 SHARES OF CLASS A COMMON STOCK, PAR
VALUE $.00005 PER SHARE, OF HOLDING $1,000 PRINCIPAL AMOUNT OF NOTES
SO TRANSFERRED."
14
For purposes of this Section 2.06, "Separation Date" shall mean the
earliest to occur of (1) October 15, 1994, (2) such earlier date as may be
determined by DLJ with the consent of Holding, which consent may not be
unreasonably withheld, (3) in the event a Change of Control, the date the
Company mails notice thereof to Holders of the Notes and (4) in the event
of an Asset Sale Offer, the date the Company mails notice thereof to
Holders of the Notes. The Company shall notify the Trustee of the
occurrence of the Separation Date on or prior to the date thereof.
(ii) On or following the Separation Date, a Holder may surrender the
certificate evidencing such Notes to the Trustee for the exchange of
such certificate for one or more certificates that do not bear the
legend set forth in Section 2.06~)(i) above, representing in the
aggregate a principal amount of Notes equal to the principal amount of
Notes represented by the certificate so surrendered.
(iii) If the Separation Date occurs prior to October 15, 1994, the Company
shall notify the Trustee and the Registrar thereof and shall, or shall
cause the Trustee to give, written notice thereof to each Holder by
first-class mail, postage prepaid.
SECTION 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon the written order of
the Company signed by two Officers of the Company, shall authenticate and
deliver a replacement Note (accompanied by a notation of the Note Guarantees
duly endorsed by the Guarantors) if the Trustee's requirements for replacements
of Notes are met. If required by the Trustee, the Company or the Guarantors, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee, the Company and the Guarantors to protect the Company, the
Guarantors, the Trustee, any Agent or any authenticating agent from any loss
which any of them may suffer if a Note is replaced. Each of the Company, the
Guarantors and the Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and the
Guarantors and shall be entitled to all of the benefits of this Indenture
equally and proportionally with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because the Company, a Subsidiary of the Company or an Affiliate of the Company
holds the Note.
15
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Guarantor, any of their respective Subsidiaries or any Affiliate of
the Company or any Guarantor shall be considered as though not outstanding,
except that for purposes of determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent, only Notes which a
Responsible Officer knows to be so owned shall be so considered. Notwithstanding
the foregoing, Notes that are to be acquired by the Company, any Guarantor, any
Subsidiary of the Company or any Guarantor or an Affiliate of the Company or a
fly Guarantor pursuant to an exchange offer, tender offer or other agreement
shall not be deemed to b e owned by the Company, a Guarantor, a Subsidiary of
the Company or a Guarantor or an Affiliate 0 f the Company or a Guarantor until
legal title to such Notes passes to the Company, Guarantor, Subsidiary of the
Company or a Guarantor or Affiliate of the Company or a Guarantor, as the case
may be.
SECTION 2. 10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes (accompanied by a notation of the
Note Guarantee duly endorsed by the Guarantors). Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
the written order of the Company signed by two Officers of the Company, shall
authenticate definitive Notes (accompanied by a notation of the Note Guarantee
duly endorsed by the Guarantors) in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes
(subject to the record retention requirement of the Exchange Act), unless the
Company directs cancelled Notes to be returned to it. The Company may not issue
new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a written order, signed by two Officers of the Company,
the Company shall direct that cancelled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company or any Guarantor defaults in a payment of interest on the
Notes, the Company or such Guarantor (to the extent of their obligations under
the Note Guarantees) shall pay the defaulted interest in any lawful manner plus,
to the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders of the Notes on a subsequent special record date, which date
shall be at the earliest practicable date but in all events at least five
Business Days prior to the payment date, in each case at the rate provided in
the Notes and in Section 4.01 hereof. The Company shall fix or cause to be fixed
each such special record date and payment date, and shall, promptly thereafter,
notify the Trustee
16
of any such date. The Company shall notify the Trustee in writing of the amount
of defaulted interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such defaulted interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Holders entitled
to such defaulted interest as in this Subsection provided. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such defaulted interest as in this Subsection
provided. At least 15 days before the special record date, the Company (or the
Trustee, in the name of and at the expense of the Company) shall mail to Holders
of the Notes a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of the
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA ss.
316(c).
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and, if it does
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will promptly
notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Notes pursuant to
the provisions of Sections 4.10 or 4.15, it shall furnish to the Trustee, at
least 30 days before the scheduled purchase date, an Officers' Certificate
setting forth (i) the Section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the offer's terms, (iii) the purchase price, (iv) the
principal amount of the Notes to be purchased, and (v) further setting forth a
statement to the effect that (a) the Company or one of its Subsidiaries has made
an Asset Sale and there are Excess Proceeds aggregating more than $5.0 million
and the amount of such Excess Proceeds, or ~) a Change of Control has occurred,
as applicable.
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SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than a]] of the Notes are to be purchased in an Asset Sale Offer or
redeemed at any time, the Trustee shall select the Notes to be purchased- or
redeemed among the Holders of the Notes in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on A PRO RATA basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption. In the event that less than all of
the Notes properly tendered in an Asset Sale Offer are to be purchased, the
particular Notes to be purchased shall be selected promptly upon the expiration
of such Asset Sale Offer.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
purchase or redemption, the principal amount thereof to be purchased or
redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
purchased or redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be purchased or redeemed. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
In the event the Company is required to make an Asset Sale Offer pursuant
to Sections 3.09 and 4.10 hereof and the amount of Excess Proceeds to be applied
to such purchase would result in the purchase of a principal amount of Notes
which is not evenly divisible by $1,000, the Trustee shall promptly refund to
the Company the portion of such Excess Proceeds that is not necessary to
purchase the immediately lesser principal amount of Notes that is so divisible.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a purchase or redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, anew Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
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(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; PROVIDED, HOWEVER, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder and deliver at the expense of the Company a new Note (accompanied by a
notation of the Note Guarantee duly endorsed by the Guarantors) equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) Bxcept as set forth in clause (b) of this Section 3.07, the Company
shall not have the option to redeem the Notes pursuant to this Section 3.07
prior to April 15, 1999. Thereafter, the Company shall
19
have the option to redeem the Notes, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, to the applicable redemption date, if
redeemed during the twelve-month period beginning on April 15 of the years
indicated below:
YEAR PERCENTAGE
1999 106.125%
2000 104.083%
2001 102.042%
2002 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at
any time prior to April 15, 1997, the Company may redeem up to 25% of the
initial principal amount of the Notes originally issued from the net proceeds of
one or more public offerings of the Common Stock of Holding, to the extent such
net proceeds are contributed or otherwise transferred to the Company as a
capital contribution or are used to purchase common equity securities of the
Company, at a redemption price equal to 111.25% of the principal amount thereof
plus accrued and unpaid interest, if any, to the redemption date; provided that
at least 75% of the principal amount of Notes originally issued remain
outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 60 days following the closing of any such public
offering.
(c) my redemption pursuant to this section 3.07 shall be made pursuant
to the provisions of sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the notes
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if
any, shall be paid to the Person in whose name a Note is registered at the close
of business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
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Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled 'Option of Holder to Elect Purchase'~ on the reverse of the Note
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days
before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased pursuant to the terms of Section 3.02 hereof (with such
adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes (accompanied by a notation of the Note Guarantee duly
endorsed by the Guarantors) equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, pursuant to the terms of Section 3.02 hereof, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall
21
authenticate and mail or deliver such new Note (accompanied by a notation of the
Note Guarantee duly endorsed by the Guarantors) to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale Offer
on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Guarantor, holds as
of 10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the Rate equal to
1 % per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company or the Guarantors in respect of the Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
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SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company shall (i) furnish to the Trustee and
to all Holders all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms l0-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with respect
to the annual information only, a report thereon by the Company's certified
independent accountants and (ii) file a copy of all such information and any
other information required by Section 13 or 15(d) of the Exchange Act with the
SEC for public availability (unless the SEC will not accept such a filing) and
file such information with the Trustee and make such information available to
investors, securities analysts and broker-dealers who request it in writing.
Notwithstanding the foregoing, to the extent permitted under the rules and
regulations of the SEC, the Company may instead supply such information with
respect to Holding. The Company shall at all times comply with TIA ss. 314(a).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) Each of the Company and the Guarantors shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries and
the Guarantors during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company, its Subsidiaries or such Guarantors has kept, observed, performed and
fulfilled their respective obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company, its Subsidiaries or such Guarantors, as the
case may be, has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company or such Guarantor, as the case may be, is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action the
Company, its Subsidiaries or such Guarantor, as the case may be, is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four or Article Five hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) Each of the Company and the Guarantors shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company or such
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
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SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of it's Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any distribution
on account of the Company's or any of its Subsidiaries' Equity Interests (other
than: dividends or distributions payable in Equity Interests of the Person
making such dividend or distribution, other than Disqualified Stock; or
dividends or distributions payable to the Company or any Wholly Owned Subsidiary
of the Company that is a Guarantor); (ii) purchase, redeem or otherwise acquire
or retire for value any Equity Interests of the Company or any Subsidiary or
other Affiliate of the Company (other than any such Equity Interests owned by
the Company or any Wholly Owned Subsidiary of the Company that is a Guarantor);
(iii) purchase, redeem or otherwise acquire or retire for value any Indebtedness
(other than the Notes)' that is PARI PASSU with or subordinated to the Notes or
any Note Guarantee; (iv) directly or indirectly make any loan or advance to, or
make any payment to, Holding; or (v) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (v) 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) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, (A) in the case of any Restricted Payment
other than as defined by clause (i) above, together with the aggregate of
all other Restricted Payments made by the Company and its Subsidiaries after
the Issuance Date (including Restricted Payments permitted by the next
succeeding paragraph (other than such Restricted Payments permitted by
clauses (iv), (v) and (vi) of the next succeeding paragraph)), or (B) in the
case of any Restricted Payment defined in clause (i) above, together with
the aggregate of all other Restricted Payments made by the Company and its
Subsidiaries after the Issuance Date (including Restricted Payments
permitted by
24
the next succeeding paragraph (other than Restricted Payments permitted by
clauses (iv) and (v) of the next succeeding paragraph)), is less than the
sum of (x) 50% of the sum of the Consolidated Net Income and Consolidated
Step-Up Depreciation and Amortization of the Company for the period (taken
as one accounting period) from the beginning of the first fiscal quarter
that begins after the Issuance Date to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income plus Consolidated Step-Up Depreciation and Amortization for such
period is a deficit, 100% of such deficit), plus (y) 100% of the aggregate
net cash proceeds received by the Company from the issue or sale since the
Issuance Date of Equity Interests of the Company or of debt securities of
the Company that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock).
The foregoing provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Subsidiary of the Company) of
other Equity Interests of the Company (other than any Disqualified Stock); (iii)
the defeasance, redemption or repurchase of PAN PASSU or subordinated
Indebtedness in a Permitted Refinancing; (iv) a Restricted Payment to Holding
pursuant to the Tax Sharing Agreement as the same may be amended from lime to
time in a manner that is not materially adverse to the Company; (v) a Restricted
Payment to Holding to pay its operating and administrative expenses including,
without limitation, directors fees, legal and audit expenses, SEC compliance
expenses and corporate franchise and other taxes, not to exceed in any fiscal
year $500,000; (vi) a Restricted Payment to Holding to pay management fees not
to exceed $750,000 in any fiscal year of the Company; (vii) a Restricted Payment
to Holding for the purpose of paying a dividend on the Common Stock of Holding
from the proceeds of the Offering in an amount not to exceed $50 million; (viii)
the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of Holding pursuant to any management equity subscription
agreement or stock option agreement in effect as of the Issuance Date; PROVIDED,
HOWEVER, that (a) the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $1 million and (1)) no
Default or Event of Default shall have occurred and be continuing immediately
after such transaction and (ix) Investments by the Company in joint ventures or
similar projects in a business similar to that conducted by the Company and its
Subsidiaries on the Issuance Date in an aggregate amount not to exceed $1
million.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section were computed, which calculations may be
based upon the Company's latest available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a)(i) pay dividends or make any other distributions to the Company or any of
its Subsidiaries (A) on its Capital Stock or (B) with respect to any other
interest or participation in, or measured by, its profits, or (ii) pay any
indebtedness owed to the Company or any of its Subsidiaries, ~) make loans or
advances to the Company or any of its Subsidiaries or (c) transfer any of its
properties or assets to the Company or any of its Subsidiaries, except for such
encumbrances or restrictions existing
25
under or by reasons of (i) Existing Indebtedness as in effect on the Issuance
Date, (ii) the New Revolving Credit Facility as in effect on the Issuance Date,
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, PROVIDED that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings are no more restrictive with respect to
such dividend and other payment restrictions than those contained in the New
Revolving Credit Facility as in effect on the Issuance Date, (iii) this
Indenture and the Notes, (iv) applicable law, (v) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of 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, PROVIDED that the Consolidated
Cash Flow of such Person, to the extent of such restriction, is not taken into
account in determining whether such acquisition was permitted by the terms of
this Indenture, (vi) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (vii) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (c) above on the property so acquired, or (viii) permitted Refinancing
Indebtedness, PROVIDED that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive than those
contained in the agreements governing the Indebtedness being refinanced.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become directly or indirectly liable with respect to (collectively, "incur" and
correlatively, an "incurrence" of) any Indebtedness (including Acquired Debt)
and the Company shall not issue any, and shall not permit any of its
Subsidiaries to issue any, shares of Disqualified Stock; PROVIDED, HOWEVER, that
the Company may incur Indebtedness or issue shares of Disqualified Stock if the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.00 to 1 if such
Indebtedness is incurred or such Disqualified Stock is issued on or before April
15, 1996 or at least 2.25 to 1 if such Indebtedness is incurred or such
Disqualified Stock is issued after April 15, 1996, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom and
including the earnings of any business acquired by the Company with the proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period; PROVIDED, HOWEVER, that until April 15, 1996, the Company
may incur Indebtedness that is PARI PASSU in right of payment with the Notes
pursuant to the foregoing Fixed Charge Coverage Ratio test only if the net
proceeds thereof are used for capital expenditures (including Capital Lease
Obligations), acquisitions of businesses and Permitted Investments. In addition,
each of the following Indebtedness shall be subordinated in right of payment to
the Notes or the Note Guarantees, as the case may be, at least to the same
extent as the Notes are subordinated to Senior Indebtedness: (A) all
Indebtedness that does not provide for all interest payments to be made in cash;
(B) all Indebtedness of the Company to any of its Subsidiaries; (C) any
Indebtedness of the Company and its Subsidiaries if at the time of incurrence
thereof, Indebtedness of the Company and the Guarantors that is PARI PASSU in
right of payment to the Notes and the Note Guarantees (including, on a pro forma
basis, the Indebtedness to be incurred) exceeds $100 million; and (D) all
obligations under the 1994 BPC Holding Corporation Extraordinary Bonus Award
Plan.
26
The foregoing limitations shall not apply to (a) revolving credit
Indebtedness and letters of credit pursuant to the New Revolving Credit Facility
in an aggregate principal amount not to exceed at any one time outstanding the
greater of (i) $28 million in principal amount (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability of
the Company thereunder), less the aggregate amount of all repayments after the
Issuance Date that permanently reduce the commitment under the New Revolving
Credit Facility, and (ii) the Borrowing Base; (b) the Existing Indebtedness; (c)
the Notes or any Note Guarantee; (d) the incurrence by the Company of
Refinancing Indebtedness; PROVIDED, HOWEVER, that such Refinancing Indebtedness
is a Permitted Refinancing; (e) Indebtedness between or among the Company and
any of its Wholly Owned Subsidiaries that are Guarantors; (f) Indebtedness from
the Company to Holding PROVIDED that the advances evidenced by such Indebtedness
are permitted under Section 4.07 hereof; (g) Hedging Obligations that are
incurred for the purpose of fixing or hedging interest rate risk with respect to
any floating rate Indebtedness that is permitted by the terms of this Indenture
to be outstanding; and (h) the incurrence by the Company or its Subsidiaries of
Indebtedness (in addition to Indebtedness permitted by any other clause of this
paragraph) in an aggregate principal amount at any time outstanding not to
exceed the sum of $1 million at any one time.
Notwithstanding anything to the contrary, the Company and its
Subsidiaries shall not be permitted to incur any additional Senior Indebtedness
unless it is secured.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Subsidiaries to,
conduct an Asset Sale, unless (x) the Company (or the Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee no later than
immediately prior to the consummation of such proposed Asset Sale with respect
to any Asset Sale involving aggregate payments in excess of $1 million) of the
assets sold or otherwise disposed of and (y) at least 75% of the consideration
therefor received by the Company or such Subsidiary is in the form of cash;
PROVIDED, HOWEVER, that the amount of (A) any liabilities (as shown on the
Company's or such Subsidiary's most recent balance sheet or in the notes
thereto), of the Company or any Subsidiary (other than liabilities that are by
their terms subordinated to the Notes or any Guarantee thereof) that are assumed
by the transferee of any such assets and (B) any notes or other obligations
received by the Company or any such Subsidiary from such transferee that are
immediately converted by the Company or such Subsidiary into cash (to the extent
of the cash received), shall be deemed to be cash for purposes of this Section
4.10. Notwithstanding the foregoing, no sale, lease, conveyance or other
disposition of the property or assets in the Jerseyville, Illinois or Alliance,
Ohio facilities acquired in connection with the CPI Acquisition shall be subject
to clauses (x) and (y) of this paragraph.
Within 180 days after any Asset Sale, the Company may apply the Net
Proceeds from such Asset Sale to either (a) permanently reduce Senior
Indebtedness, or (b) make an investment in another business or capital
expenditure or other long-term/tangible assets, in each case, in the same or a
similar line of business as the Company was engaged in on the Issuance Date.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce Senior Bank Indebtedness or otherwise invest such Net
Proceeds in Cash Equivalents. Any Net Proceeds from the Asset Sale that are not
applied or invested as provided in the first sentence of this paragraph shall be
deemed to constitute "Excess Proceeds." If the aggregate amount of Excess
Proceeds exceeds $5 million, the Company shall make an Asset Sale Offer to all
Holders of Notes to purchase the maximum principal amount of Notes, that is an
integral multiple of $1,000, that may be purchased out of the Excess Proceeds,
at an offer price in cash in an amount equal to 101 % of the principal amount
thereof plus accrued and unpaid interest, if any, to
27
the date of purchase, in accordance with the procedures set forth in Section
3.09 hereof. To the extent that the aggregate amount of Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
such deficiency 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 under Section 3.02 hereof. Upon completion of such offer to purchase,
the amount of Excess Proceeds shall be reset to zero. Any Asset Sale Offer
pursuant to this Section 4.10 shall be made pursuant to the provisions of
Section 3.09 hereof.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with an Asset Sale.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(a) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Subsidiary with a Person who was
not an Affiliate and (b) the Company delivers to the Trustee (i) with respect to
any Affiliate Transaction involving aggregate payments in excess of $2 million,
a resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above and
that such Affiliate Transaction has been approved by a majority of the Board of
Directors and (ii) with respect to any Affiliate Transaction involving aggregate
payments in excess of $5 million, an opinion as to the fairness to the Company
or such Subsidiary from a financial point of view issued by an investment
banking firm of national standing; PROVIDED, HOWEVER, that (i) any employment
agreement entered into by the Company or any of its Subsidiaries in the ordinary
course of business and consistent with the past practice of the Company or such
Subsidiary; (ii) transactions between or among the Company and/or its
Subsidiaries; (iii) transactions permitted under Section 4.07 hereof; and (iv)
the $1.5 million advisory fee paid to First Atlantic Capital, Ltd. in
connection with the Offering and the CPI Acquisition, in each case, shall not be
deemed Affiliate Transactions.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly (i) create, incur, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by the Company or any Subsidiary, or
any income or profits therefrom or (ii) assign or convey any right to receive
income therefrom, in any such case to secure any Indebtedness (other than Senior
Indebtedness of the Company or Senior Indebtedness of a Guarantor permitted to
be incurred pursuant to this Indenture) unless contemporaneously therewith or
prior thereto, effective provision is made (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) whereby the Notes or a Note Guarantee are secured equally and ratably
with such other Indebtedness (or if such other Indebtedness is subordinated to
the Notes or a Note Guarantee, the Notes or a Note Guarantee, as the case may
be, are secured on a basis with the same relative priority to such other
Indebtedness).
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SECTION 4.13. ADDITIONAL GUARANTEES.
If the Company or any of its Subsidiaries shall (i) transfer or cause to
be transferred, in one or a series of related transactions (other than a
transaction or series of related transactions constituting a Restricted Payment
permitted pursuant to Section 4.07 hereof), any assets, businesses, divisions,
real property or equipment having a book value in excess of $1 million to any
Subsidiary that is not a Guarantor or (ii) acquire another Subsidiary having (a)
total assets with a book value in excess of $1 million or ~) Consolidated Cash
Flow in excess of $1 million, then the Company shall cause such transferee or
acquired Subsidiary to (A) execute and deliver to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which such
transferee or acquired Subsidiary shall unconditionally guarantee (a "Note
Guarantee," as defined in Article 10 hereof), on a senior subordinated basis,
all of the Company's obligations under the Notes on the terms set forth in
Article 10 hereof and (B) deliver to the Trustee an Opinion of Counsel as to the
enforceability of such Note Guarantee.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 and Article 10 hereof, as the case may be, the
Company and each of the Guarantors shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of their
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company, any such Guarantor or any
such Subsidiary, as the case may be, and (ii) the rights (charter and
statutory), licenses and franchises of the Company, the Guarantors and their
respective Subsidiaries; PROVIDED, HOWEVER, that the Company and the Guarantors
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of their respective
Subsidiaries, if the Board of Directors of Holding shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, the Guarantors and their Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of the
Notes.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company shall make an
offer to each Holder to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "CHANGE OF CONTROL OFFER") at an offer price in cash equal
to 101 % of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "CHANGE OF CONTROL PAYMENT").
Within 10 days following any Change of Control, the Company will mail a notice
to each Holder stating: (i) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes tendered will be accepted for
payment; (ii) the purchase price and the purchase date, which will be no earlier
than 30 days nor later than 60 days from the date such notice is mailed (the
"CHANGE OF CONTROL PAYMENT DATE"); (iii) that any Note not tendered will
continue to accrue interest; (iv) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date; (v) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (vi) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
29
of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Notes
purchased; and (vii) that Holders whose Notes are being purchased only in part
will be issued new Notes equ4 in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall comply with
the requirements of Rule 14e- I under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes in connection with a
Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent shall
promptly mail to each Holder of Notes so accepted the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and mail to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered by such Holder, if any; PROVIDED, that each such new Note
shall be in a principal amount of $1,000 or an integral multiple thereof. Prior
to making the Change of Control Payment, but in any event within 90 days
following a Change of Control, the Company shall either repay all outstanding
Designated Senior Indebtedness or obtain the requisite consents, if any, under
all agreements governing outstanding Designated Senior Indebtedness to permit
the repurchase of Notes required by this Section 4.15. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
SECTION 4.16. NO SENIOR SUBORDINATED INDEBTEDNESS.
Notwithstanding the provisions of Section 4.09 hereof, (i) the Company
shall not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to any Senior
Indebtedness and senior in any respect in right of payment to the Notes, and
(ii) no Guarantor shall incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to its Senior Indebtedness and senior in any respect in right of payment
to its Note Guarantee.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company 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 another Person unless (i) the
Company is the surviving Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under the Notes and
this Indenture; (iii) immediately after such transaction no Default or Event of
Default exists; and (iv) the
30
Company or any Person formed by or surviving any such consolidation or merger,
or to which such sale. assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have Consolidated Net Worth
(immediately after the transaction) equal to or greater than the Consolidated
Net Worth of the Company immediately preceding the transaction and (B) shall, at
the time of such transaction and after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company or the Company and its Subsidiaries on a consolidated basis in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" or the "Guarantor,9' as
the case may be, shall refer instead to the successor corporation and not to the
Company or the Guarantor, as the case may be), and may exercise every right and
power of the Company or the Guarantors, as the case may be, under this Indenture
with the same effect as if such successor Person had been named as the Company
or Guarantor, as the case may be, herein; PROVIDED, HOWEVER that the predecessor
Company and the predecessor Subsidiaries that are Guarantors shall not be
relieved from the obligation to pay the principal of and interest on the Notes
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.01 hereof.
The Trustee shall, at the written request of the Company and the
Holders, authenticate and deliver new Notes representing such successor pursuant
to the terms of Section 2.02 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company or the Guarantors default in the payment when
due of interest on the Notes (whether or not prohibited by the
subordination provisions of Article 10 or Article 11 hereof, as the case
may be) and such default continues for a period of 30 days;
(b) the Company or the Guarantors default in the payment when
due of principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of Article 10 or Article 11
hereof, as the case may be) when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to
purchase) or otherwise;
(c) the Company fails to comply with any of the provisions of
Section 4.07, 4.09, 4.10 or 4.15 hereof;
31
(d) the Company or the Guarantors fail to observe or perform any
other covenant, representation, warranty or other agreement in this
indenture or the Notes for 60 days after notice to the Company by the
Trustee or the Holders df at least 25% in principal amount of the Notes
then outstanding;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company, Holding or
any of their respective Subsidiaries (or the payment of which is
guaranteed by the Company, Holding or any of their respective
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is
created after the Issuance Date, which default (i) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in
such Indebtedness (a "PAYMENT DEFAULT") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates 52 million or more;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company, Holding or any of their respective Subsidiaries and such
judgment or judgments remain unpaid or undischarged for a period (during
which execution shall not be effectively stayed) of 60 days, PROVIDED
that the aggregate of all such undischarged judgments exceeds $2
million;
(g) except as permitted by this Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect or any
Guarantor (or its successors or assigns), or any Person acting on behalf
of such Guarantor (or its successors or assigns), shall deny or
disaffirm its obligations or shall fail to comply with any obligations
under its Note Guarantee.
(h) the Company, any Guarantor or any of their respective
Subsidiaries pursuant to or within the meaning of 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 all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become
due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, any Guarantor or
any of their respective Subsidiaries in an involuntary case;
32
(ii) appoints a Custodian of the Company, any Guarantor
or any of their respective Subsidiaries or for all or
substantially all of the property of the Company, any Guarantor
or any of their respective Subsidiaries; or
(iii) orders the liquidation of the Company, any
Guarantor or any of their respective Subsidiaries; and the order
or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.01 hereof with respect to the Company, any
Guarantor or any of their respective Subsidiaries) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately;
PROVIDED, HOWEVER, that if any Indebtedness is outstanding pursuant to the New
Revolving Credit Facility, upon a declaration of acceleration, the principal and
interest on the Notes shall be payable, upon the earlier of (i) the day which is
five Business Days after notice of acceleration is given to the Company and the
lender under the New Revolving Credit Facility or (ii) the date of acceleration
of the Indebtedness under the New Revolving Credit Facility. Notwithstanding the
foregoing, if an Event of Default specified in clause (h) or (i) of Section 6.01
hereof occurs with respect to the Company, Holding or any of their respective
Subsidiaries, all outstanding Notes shall be due and payable immediately without
further action or notice. The Holders of at least a majority in aggregate
principal amount of the then outstanding Notes by written notice to the Trustee
may on behalf of all of the Holders rescind any acceleration of the Notes and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal,
interest or premium that has become due solely because of the acceleration) have
been cured or waived.
If an Event of Default occurs on or after April 15, 1999 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to April 15, 1999
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable in an amount, for each of the years beginning on April 15 of the years
set forth below, as set forth below (expressed as a percentage of the principal
amount that would otherwise be due but for the provisions of this sentence):
33
YEAR PERCENTAGE
---- ----------
1994......................... 112.250%
1995......................... 111.025%
1996......................... 109.800%
1997......................... 108.575%
1998......................... 107.350%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture, including, but not limited to, notifying the Guarantors
pursuant to the terms hereof and the Note Guarantees.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this Article
Six or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an
34
offer to purchase) (PROVIDED, HOWEVER, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25 % in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense reasonably anticipated by the
Trustee in complying with such request;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60 day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring Suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and 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 is authorized to recover judgment in its own name and as
trustee of an express trust against the Company
35
for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes, including the Guarantors), its creditors
or its property and shall be entitled and empowered to collect, receive and
distribute any money or securities or other property payable or deliverable upon
the exchange of the Notes or upon any such clairns and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article it shall pay
out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to the holders of Senior Indebtedness of the Company or the
Guarantors, as the case may be, to the extent required by Article 10 or Article
11 hereof, as applicable.
THIRD: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
FOURTH: to the Company or to such party as a court of competent
jurisdiction direct
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
36
SECTION 6.11. UNDERTAKING FOR COST.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a Suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
37
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other paper
or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled, upon reasonable notice and during normal business hours, to examine
the books, records and premises of the Company, personally or by agent or
attorney so long as such examination does not interfere with the Company's
business.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or Omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that in the reasonable discretion of the Trustee, might be incurred by it in
compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may Otherwise deal with the Company, the Guarantors or
any Affiliate of the Company or the Guarantors with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the SEC
38
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS DY TRUSTEE TO HOLDERS OF TI"E NOTES.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA ss. 313(a) but if no event described in TIA ss.
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA ss.
3I3~)(2). The Trustee shall a]so transmit by mail all reports as required by TIA
ss. 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA ss. 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Guarantors shall pay to the Trustee from time to
time reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and the Guarantors
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether
39
asserted by the Company, any Guarantor or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company and the
Guarantors of their obligations hereunder. The Company and the Guarantors shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company and the Guarantors shall pay the
reasonable fees and expenses of such counsel. The Company and the Guarantors
need not pay for any settlement made without their consent, which consent shall
not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's and the Guarantors' payment obligations in this
Section, the Trustee shall have, and the Company does hereby grant, assign and
convey to the Trustee, to the benefit of the Holders, a security interest in and
a Lien on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
The Trustee's right to receive payment of any amounts due under this
Section 7.07 shall not be subordinate to any other liability or indebtedness of
the Company (even though the Notes may be subordinated) and the payments of
principal and interest on the Notes shall be subordinate to the Trustee's right
to receive such payment.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the
extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
40
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal ainount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, any
Guarantor, or the Holders of Notes of at least 10% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, PROVIDED all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's and the Guarantors' obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310 (b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
41
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASAN~.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate delivered to the Trustee, at
any time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from its obligations with respect to all
outstanding Notes and Note Guarantees on the date the conditions set forth below
are satisfied (hereinafter, 'LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (1')
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, ~) the Company's and
the Guarantors' obligations with respect to such Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith and (d) this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15 and 4.16 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, 'COVENANT DEFEASANCE"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
42
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(e) through
6.01(f) and Section 6.01(h) and 6.01(i) hereof shall not constitute Events of
Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the
case may be, of such principal or installment of principal of, premium,
if any, or interest on the outstanding Notes;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Issuance Date, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the Notes pursuant to
this Article Eight concurrently with such incurrence) or insofar as
Sections 6.01(h) or 6.01(i) hereof is concerned, at any time in the
period ending on the day on which all applicable preference periods have
run;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
43
(f) the Company shall have delivered to [he Trustee an Opinion
of Counsel to the effect that after the day on which all applicable
preference periods have run, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over the other creditors of the
Company or the Guarantors or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or the
Guarantors; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest, if any, on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest, if any, have become due and
payable shall be paid to the Company on its written request accompanied by an
Officers' Certificate or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying
44
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company
and the Guarantors make any payment of principal of, premium, if any, or
interest, if any, on any Note following the reinstatement of its obligations,
the Company and the Guarantors shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide. (or uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's or any Guarantor's
obligations to Holders of the Notes in the case of a merger or consolidation
pursuant to Article Five or Article 10 hereof, as the case may be;
(d) to make any change that would provide any additional rights or benefits
to the Holders of the Notes (including providing for additional Note
Guarantees pursuant to Section 4.13 hereof) or that does not adversely affect
the legal rights hereunder of any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be
45
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 9.02, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture or the Notes with the
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 offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption
of the Notes;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at
46
least a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any Note;
(h) make any change to the subordination provisions of Article 10 or
Article 11 hereof that adversely affects Holders;
(i) except pursuant to Article 8 and Article 10 hereof, release any
Guarantor from its obligations under its Note Guarantee, or change any
Note Guarantee in any manner that would adversely affect Holders; or
(j) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or a supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
(accompanied by a notation of the Note Guarantee duly endorsed by the
Guarantors) that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
and the Guarantors may not sign an amendment or supplemental indenture until the
Board of Directors of the Company approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled 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 the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01. NOTE GUARANTEE.
The Guarantors and each Subsidiary of the Company which in accordance with
Section 4.13 hereof is required to guarantee the obligations of the Company
under the Notes upon execution of a counterpart of this Indenture, hereby
jointly and severally unconditionally guarantees (each such guarantee, a "NOTE
GUARANTEE") to each Holder of a Note authenticated and delivered by the Trustee
irrespective of the validity or enforceability of this Indenture, the Notes or
the obligations of the Company under this Indenture or the Notes, that: (i) the
principal of and interest on the Notes will be paid in full when due, whether at
the maturity or interest payment or mandatory redemption date, by acceleration,
call for redemption or otherwise, and interest on the overdue principal of and
interest, if any, on the Notes and all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Notes will be promptly paid
in full or performed, all in accordance with the terms of this indenture and the
Notes; and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, they will be paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, each Guarantor will be obligated to pay the
same whether or not such failure to pay has become an Event of Default which
could cause acceleration pursuant to Section 6.02 hereof. Each Guarantor agrees
that this is a guarantee of payment not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard to this Note
Guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company under
this Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require the Trustee, the Holders or the Company (each, a
"BENEIFITTED PARTY") to proceed against the Company or any other Person or to
proceed against or exhaust any security held by a Benefitted Party at any time
or to pursue any other remedy in any Benefitted Party's power before proceeding
against such Guarantor; (b) the defense of the statute of limitations in any
action hereunder or in any action for the collection of any Indebtedness or the
performance of any obligation hereby guaranteed; (c) any defense that may arise
by reason of the incapacity, lack of authority, death or
48
disability of any other Person or the failure of a Benefitted Party to file or
enforce a claim against the estate (in administration, bankruptcy or any other
proceeding) of any other Person; (d) demand, protest and notice of any kind
including but not limited to notice of the existence, creation or incurring of
any new or additional Indebtedness or obligation or of any action or non-action
on the part of such Guarantor, the Company, any Benefitted Party, any creditor
of such Guarantor, the Company or on the part of any other Person whomsoever in
connection with any Indebtedness or obligations hereby guaranteed; (e) any
defense based upon an election of remedies by a Benefitted Party, including but
not limited to an election to proceed against such Guarantor for reimbursement;
(f) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (g) any defense arising because of a
Benefitted Party's election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal
Bankruptcy Code; or (h) any defense based on any borrowing or grant of a
security interest under Section 364 of the Federal Bankruptcy Code. Each
Guarantor hereby covenants that its Note Guarantee will not be discharged except
by complete performance of the obligations contained in ITS Note Guarantee and
this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to either the Company or any Guarantor, or any Custodian, trustee, or
similar official acting in relation to either the Company or such Guarantor, any
amount paid by the Company or such Guarantor to the Trustee or such Holder, the
applicable Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
Each Guarantor further agrees that, as between such Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration as to the Company
or any other obligor on the Notes of the obligations guaranteed hereby, and (ii)
in the event of any declaration of acceleration of those obligations as provided
in Section 6.02 hereof, those obligations (whether or not due and payable) will
forthwith become due and payable by such Guarantor for the purpose of this Note
Guarantee
SECTION 10.02. SUBORDINATION.
Each Guarantor, the Trustee, and each Holder by accepting a Note agrees,
that the obligations of such Guarantor hereunder shall be subordinated in right
of payment to the prior payment in full of all Obligations of every type
whatsoever, contingent or otherwise due in respect of Senior Indebtedness of
such Guarantor and of the Company (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed). The subordination
provisions of this Article 10 are made for the benefit of the holders of all
Senior Indebtedness (whether outstanding on the date hereof or issued hereafter)
of each Guarantor, such holders of Senior Indebtedness of each Guarantor are
made Obligees under this Article 10 and such holders of Senior Indebtedness of
each Guarantor or any of them may enforce the provisions of this Article 10.
Holders of Senior Indebtedness of each Guarantor are third party beneficiaries
of this Article 10 and no amendment thereof shall be effected without the prior
written consent of the holders of a majority of the outstanding principal amount
of Senior Indebtedness of each Guarantor.
49
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of any Guarant6r in a liquidation or
dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor or its property,
in an assignment for the benefit of creditors or any marshaling of such
Guarantor's assets and liabilities:
(1) holders of Senior Indebtedness of such Guarantor shall be entitled to
receive payment in full of all Obligations due in respect of such Senior
Indebtedness of such Guarantor (including interest after the commencement of
any such proceeding at the rate specified in the applicable Senior
Indebtedness of such Guarantor, whether or not such interest was an allowed
claim) before the Trustee or any Holder shall be entitled to receive any
payment from the Guarantor under or pursuant to this Note Guarantee with
respect to the Notes; and
(2) until all Obligations with respect to Senior Indebtedness of such
Guarantor (as provided in subsection (1) above) are paid in full, any
distribution to which the Trustee or any Holder would be entitled but for this
Article shall be made to holders of Senior Indebtedness of such Guarantor
(except that Holders may receive securities that are subordinated in right and
priority of payment to at least the same extent as the Note Guarantee to (a)
Senior Indebtedness of such Guarantor and 0,) any securities issued in
exchange for Senior Indebtedness of such Guarantor).
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS OF THE GUARANTOR.
No Guarantor shall make any payment or distribution to the Trustee or any
Holder upon or in respect of its Note Guarantee or the Notes, or any Obligation
with respect thereto, and no Guarantor shall acquire from the Trustee or any
Holder any Notes for cash or property (other than securities that are
subordinated in right and priority of payment to at least the same extent as its
Note Guarantee to (a) Senior Indebtedness of such Guarantor and (1)) any
securities issued in exchange for Senior Indebtedness of such Guarantor) until
all principal and other Obligations with respect to the Senior Indebtedness of
such Guarantor have been paid in full if:
(i) a default in the payment when due, whether upon acceleration or
otherwise, of any principal, premium, if any, or interest on Senior
Indebtedness of such Guarantor occurs and is continuing beyond any applicable
grace period; or
(ii) any other default on Designated Senior Indebtedness of such Guarantor
occurs and is continuing and the Trustee receives a notice of the default from
such Guarantor, or the holders of any such Designated Senior Indebtedness of
such Guarantor, stating that such Guarantor or holders are invoking a payment
blockage under this Section 10.04(u) (a "GUARANTOR PAYMENT BLOCKAGE NOTICE").
If the Trustee receives any such notice, a subsequent notice received within
365 days thereafter shall not be effective for purposes of this Section.
Each Guarantor may and shall resume payments on and distributions in
respect of its Note Guarantee, the Notes and all Obligations with respect
thereto, and may acquire such Notes, Obligations for value when:
(1) in the case of a payment default as described in (i) above, upon the
date on which such default is cured or waived, and
50
(2) in the case of a nonpayment default as described in (ii) above, on the
earlier of the date on which such nonpayment default is cured or waived or 179
days after the date on which a Guarantor Payment Blockage Notice is received
if the maturity of such Designated Senior Indebtedness of such Guarantor has
not been accelerated, and this Article otherwise permits the payment at the
time of such payment.
SECTION 10.05. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, each
Guarantor shall promptly notify each Representative of holders of Senior
Indebtedness of such Guarantor of the acceleration.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from a Guarantor any
payment of any Obligations with respect to the Notes or any other Obligation
guaranteed hereby at a time when the Trustee or such Holder has actual knowledge
that such payment is prohibited by Section 10.03 or Section 10.04 hereof, such
payment shall be held by the Trustee or such Holder, in trust for the benefit
of, and shall be paid forthwith over and delivered, upon written request, to,
the holders of Senior Indebtedness of such Guarantor as their interests may
appear, or their Representative under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness of such Guarantor may have been issued, as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Indebtedness of such Guarantor remaining
unpaid to the extent necessary to pay such Obligations in full in accordance
with their terms, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness of such Guarantor.
If a distribution is made to the Trustee or any Holder that because of this
Article 10 should not have been made to it at a time when the Trustee or such
Holder has actual knowledge that such distribution should not have been made to
it, the Trustee or such Holder who receives the distribution shall hold it in
trust for the benefit of, and, upon written request, pay it over to, the holders
of Senior Indebtedness of such Guarantor as their interests may appear, or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Indebtedness of such Guarantor may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to Senior Indebtedness of such Guarantor remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness of such Guarantor.
With respect to any Guarantor, with respect to the holders of Senior
Indebtedness of such Guarantor, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations with respect to the holders
of Senior Indebtedness of such Guarantor shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness of such Guarantor, and shall not be liable
to any such holders if the Trustee shall pay over or distribute to or on behalf
of Holders or the Company or any other Person money or assets to which any
holders of Senior Indebtedness of such Guarantor shall be entitled by virtue of
this Article 10, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
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SECTION 1O.07. NOTICE BY A GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the Paying Agent of
any facts known to such Guarantor that would cause a payment of any Obligations
with respect to the Notes or its Note Guarantee to violate this Article, but
failure to give such notice shall not affect the subordination of its Note
Guarantee or of the Notes to the Senior Indebtedness of such Guarantor as
provided in this Article.
SECTION 10.08. SUBROGATION.
With respect to any Guarantor, after all Senior Indebtedness of such
Guarantor is paid in full and until the Notes are paid in full, Holders shall,
without duplication, be subrogated to the rights of holders of Senior
Indebtedness of such Guarantor to receive distributions applicable to Senior
Indebtedness of such Guarantor to the extent that distributions otherwise
payable to the Holders have been applied to the payment of Senior Indebtedness
of such Guarantor. A distribution made under this Article to holders of Senior
Indebtedness of such Guarantor that otherwise would have been made to Holders is
not, as between such Guarantor and Holders, a payment by the Company on the
Senior Indebtedness of such Guarantor.
SECTION 10.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of Senior
Indebtedness of such Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Guarantor and the Holders, the obligation of
such Guarantor, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of such Guarantor
other than their rights in relation to holders of Senior Indebtedness of such
Guarantor; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of holders
of Senior Indebtedness of such Guarantor set forth herein to receive
distributions and payments otherwise payable to Holders.
SECTION 10.10. SUBORDINATION MAY NOT BE IMPATIRD BY ANY GUARANTOR.
With respect to any Guarantor, no right of any holder of Senior
Indebtedness of such Guarantor to enforce the subordination of the Note
Guarantee shall be impaired by any act or failure to act by such Guarantor or
any Holder or by failure of such Guarantor or any Holder to comply with this
Indenture.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
With respect to any Guarantor, whenever a distribution is to be made or a
notice given to holders of Senior Indebtedness of such Guarantor, the
distribution may be made and the notice given to their Representative.
Upon any payment or distribution of assets referred to in this Article 10,
the Trustee and the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction or upon any certificate of such
Representative or of the liquidating trustee or agent or other Person
52
making any distribution for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness of such
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 10.
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Note Guarantee to violate this Article. Only a Guarantor, the holder of any
Senior Indebtedness of such Guarantor, or the Representative of holders of
Senior Indebtedness of such Guarantor may give the notice. Nothing in this
Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
With respect to any Guarantor, the Trustee in its individual or any other
capacity may hold Senior Indebtedness of such Guarantor with the same rights it
would have if it were not Trustee.
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee the Holder's artorney4n-fact for any and
all such purposes. If the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding relative any Guarantor referred
to in Section 6.09 hereof at least 30 days before the expiration of the time to
file such claim, the holders (or their Representative) of Senior Indebtedness of
each Guarantor are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
SECTION 10.14. LIMITATION OF GUARANTOR'S LIABILTY.
Each Guarantor and by its acceptance hereof, each beneficiary hereof,
hereby confirms that it is its intention that the Note Guarantee by such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantees. To effectuate the foregoing intention, each such person hereby
irrevocably agrees that the obligation of such Guarantor under its Note
Guarantee under this Article 10 shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws, 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
this Article 10, result in the obligations of such Guarantor in respect of such
maximum amount not constituting a fraudulent conveyance. Each beneficiary under
the Note Guarantees, by accepting the benefits hereof, confirms its intention
that, in the event of a bankruptcy, reorganization or other similar proceeding
of the Company or any Guarantor in which concurrent claims are made upon such
Guarantor hereunder, to the extent such claims will not be fully satisfied, each
such claimant with a valid claim against the Company shall be entitled to a
ratable share of all payments by such Guarantor in respect of such concurrent
claims.
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SECTION 10.15. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that this Indenture shall be executed on behalf of each
Guarantor by its President or one of its Vice Presidents and attested to by an
Officer and that the notation on each Note relating to the Note Guarantee shall
be executed on behalf of each Guarantor by an Officer.
SECTION 10.16. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person
whether or not it is affiliated with such Guarantor unless (i) subject to
the provisions of the following paragraph and Section 10.17 hereof, the
Person formed by or surviving any such consolidation or merger (if other
than such Guarantor) assumes all the obligations of such Guarantor pursuant
to a supplemental indenture in a form reasonably satisfactory to the
Trustee, under its Note Guarantee and this Indenture, (ii) immediately
after giving effect to such transaction, no Default or Event of Default
exists, and (iii) in the case of any Guarantor other than Holding, such
Guarantor, or any Person formed by or surviving any such consolidation or
merger, (A) shall have Consolidated Net Worth (immediately after giving
effect to such transaction), equal to or greater than the Consolidated Net
Worth of such Guarantor immediately preceding the transaction and (B) will
be permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio to incur, immediately after giving effect to such transaction, at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test Set forth in Section 4.09 hereof. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Note Guarantee
in this Indenture and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by
the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
Notwithstanding the foregoing, (A) a Guarantor may consolidate with or
merge with or into the Company, PROVIDED, that the surviving corporation (if
other than the Company) shall expressly assume by supplemental indenture
complying with the requirements of this Indenture, the due and punctual payment
of the principal of, premium, if any, and interest on all of the Notes, and the
due and punctual performance and observance of all the covenants and conditions
of this Indenture to be performed by the Company and (B) a Guarantor may
consolidate with or merge with or into any other Guarantor.
SECTION 10.17. RELEASES FOLLOWING SALE OF ASSETS.
Upon a sale or other disposition of all or substantially all of the assets
of any Guarantor (other than Holding), by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Guarantor, then such Guarantor (in the event of a sale or other disposition, by
way of such a merger, consolidation or otherwise, of all of the Capital Stock of
such Guarantor) or the corporation acquiring the property (in the event of a
sale or other disposition of all or substantially all of the assets of such
Guarantor) shall be released and relieved of its obligations under its Note
Guarantee; PROVIDED that the Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.10 hereof.
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ARTICLE 11
SUBORDINATION
SECTION 11.01. SUBORDINATION.
The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Notes shall be subordinated in right of
payment to the prior payment in full of all Obligations of every type
whatsoever, contingent or otherwise due in respect of Senior Indebtedness of the
Company (whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed). The subordination provisions of this Article 11 are made
for the benefit of the holders of all Senior Indebtedness (whether outstanding
on the date hereof or issued hereafter) of the Company, such holders of Senior
Indebtedness of the Company are made obligees under this Article 11 and such
holders of Senior Indebtedness of the Company or any of them may enforce the
provisions of this Article 11. Holders of Senior Indebtedness of the Company are
third party beneficiaries of this Article 11 and no amendment hereof shall be
effected without the prior written consent of the holders of a majority of the
outstanding principal amount of Senior Indebtedness of the Company.
SECTION 11.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full of all Obligations due in respect of such Senior
Indebtedness of the Company (including interest after the commencement of
any such proceeding at the rate specified in the applicable Senior
Indebtedness of the Company, whether or not such interest is an allowed
claim) before the Holders shall be entitled to receive any payment with
respect to the Notes; and
(2) until all Obligations with respect to Senior Indebtedness of the
Company (as provided in subsection (1) above) are paid in full, any
distribution to which Holders would be entitled but for this Article shall
be made to holders of Senior Indebtedness of the Company (except that
Holders may receive securities that are subordinated in right and priority
of payment to at least the same extent as the Notes to (a) Senior
Indebtedness of the Company and (b) any securities issued in exchange for
any such Senior Indebtedness of the Company).
SECTION 11.03. DEFAULT ON SENIOR INDEBTEDNESS.
The Company may not make any payment or distribution to the Trustee or
any Holder upon or in respect of the Notes, or any Obligation with respect
thereto, and may not acquire from the Trustee or any Holder any Notes for cash
or property (other than securities that are subordinated in right and priority
of payment to at least the same extent as the Notes to (a) Senior Indebtedness
of the Company and (b) any securities issued in exchange for Senior Indebtedness
of the Company) until all principal and other Obligations with respect to the
Senior Indebtedness of the Company have been paid in full if:
55
(i) a default in the payment when due, whether upon acceleration or
otherwise, of the principal of, premium, if any, or interest on any Senior
Indebtedness of the Company occurs and is continuing beyond any applicable
grace period; or
(ii) any other default on Designated Senior Indebtedness of the Company
occurs and is continuing and the Trustee receives a notice of such default
from the Company, or from, or on behalf of, the holders of any such
Designated Senior Indebtedness of the Company, stating that it is or such
holders are invoking a payment blockage under this Section 11.03(ii) (a
"PAYMENT BLOCKAGE NOTICE"). If the Trustee receives any such notice, a
subsequent notice received within 365 days thereafter shall not be effective
for purposes of this Section.
The Company may and shall resume payments on and distributions in
respect of the Notes, and all Obligations with respect thereto, and may acquire
them when:
(1) in the case of a payment default as described in (i) above, upon
the date on which such default is cured or waived, and
(2) in the case of a nonpayment default as described in (ii) above, on
the earlier of the date on which such nonpayment default is cured or waived
or 179 days after the date on which the applicable Payment Blockage Notice
is received, unless the maturity of any such Designated Senior Indebtedness
of the Company has been accelerated, and this Article otherwise permits the
payment at the time of such payment.
SECTION 11.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify each Representative of holders of Senior
Indebtedness of the Company of the acceleration.
SECTION 11.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when the Trustee or such Holder
has acknowledge that such payment is prohibited by Section 11.02 or Section
11.03 hereof, such payment shall be held by the Trustee or such Holder, in trust
for the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Indebtedness of the Company as their
interests may appear, or their Representatives under the indenture or other
agreement (if any) pursuant to which Senior Indebtedness of the Company may have
been issued, as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Indebtedness of the Company
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness of the Company.
If a distribution is made to the Trustee or any Holder that because of
this Article 11 should not have been made to it at a time when the Trustee or
such Holder has actual knowledge that such distribution should not have been
made to it, the Trustee or such Holder who receives the distribution shall hold
it in trust for the benefit of, and, upon written request, pay it over to, the
holders of Senior Indebtedness of the Company as their interests may appear, or
their Representative under the indenture or other agreement (if any) pursuant to
which Senior Indebtedness of the Company may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to
56
Senior Indebtedness of the Company remaining unpaid to the extent necessary to
pay such Obligations in full in accordance with their terms, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness of the Company.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 11 and no implied covenants or
obligations with respect to the holders of Senior Indebtedness of the Company
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Company and shall not be liable to any such holders if the Trustee shall pay
over or distribute to or on behalf of Holders or the Company or any other Person
money or assets to which any holders of Senior Indebtedness of the Company shall
be entitled by virtue of this Article 11, except if such payment is made as a
result of negligent action, its own negligent failure to act or its own willful
conduct or gross negligence of the Trustee.
SECTION 11.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article, but failure to give such
notice shall not affect the subordination of the Notes to the Senior
Indebtedness of the Company as provided in this Article.
SECTION 11.07. SUBROGATION.
After all Senior Indebtedness of the Company is paid in full and until
the Notes are paid in full, Holders shall, without duplication, be subrogated to
the rights of holders of Senior Indebtedness of the Company to receive
distributions applicable to Senior Indebtedness of the Company to the extent
that distributions otherwise payable to the Holders have been applied to the
payment of Senior Indebtedness of the Company. A distribution made under this
Article to holders of Senior Indebtedness of the Company that otherwise would
have been made to Holders is not, as between the Company and Holders, a payment
by the Company on Senior Indebtedness of the Company.
SECTION 11.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of
Senior Indebtedness of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and the Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the Company
other than their rights in relation to holders of Senior Indebtedness of the
Company; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders of Senior Indebtedness of the Company set forth herein to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
57
SECTION 11.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness of the Company to enforce
the subordination of the Indebtedness with respect to the Notes shall be
impaired by any act or failure to act by the Company or any Holder or by failure
of the Company or any Holder to comply with this Indenture.
SECTION 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness of the Company, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets referred to in this Article
11, the Trustee and the Holders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating trustee or agent or other Person
making any distribution for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 11.
SECTION 11.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least three Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article. Only the Company, the holder
of any Senior Indebtedness of the Company, or any Representative of holders of
Senior Indebtedness of the Company may give the notice. Nothing in this Article
11 shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee.
SECTION 11.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee the Holder's attorney-in-fact for any and
all such purposes. If the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding referred to in Section 6.09
hereof at least 30 days before the expiration of the time to file such claim,
the holders (or their Representative) of Senior Indebtedness of the Company are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Notes.
58
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company, the Guarantors or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company or any Guarantor:
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
Telecopier No.: (812) 421-9604
Attention: Martin R. Imbler
With a copy to:
O'Sullivan Graev & Karabell
30 Rockefeller Plaza
New York, New York 10112
Telecopier No.: (212) 408-2420
Attention: Kenneth S. Siegel, Esq.
If to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Telecopier No.: (212) 852-1625
Attention: Corporate Trust Administration
The Company, the Guarantors or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
59
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company or any Guarantor mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312 (b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA ss. 312(c).
SECTION 12.04. CERTIFICATE AND OPINON AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantors to the
Trustee to take any action under this Indenture, the Company or the Guarantors
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 12. 05. STATEMENTS REQUIRED IN CERTIFICATE OR OPIMON.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 3 14(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
60
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the Note
Guarantees, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
and the Note Guarantees waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the Note
Guarantees.
SECTION 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTE.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and
the Notes and the Note Guarantees, as the case may be, shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture, or in the Notes or in the Note
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
61
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
62
SIGNATURES
Dated as of April 21, 1994 BERRY PLASTICS CORPORATION
By:/s/ROBERTO BUARON
Name: Roberto Buaron
Title: Chairman
Attest:
/s/JAMES KRATOCHVIL (SEAL)
James Kratochvil
Secretary
Dated as of April 21, 1994 BPC HOLDING CORPORATION, as Guarantor
By:/s/ROBERTO BUARON
Name: Roberto Buaron
Title: Chairman
Attest:
/s/JAMES KRATOCHVIL (SEAL)
James Kratochvil
Secretary
Dated as of April 21, 1994 BERRY IOWA CORPORATION, as Guarantor
By:/s/ROBERTO BUARON
Name: Roberto Buaron
Title: Chairman
Attest:
/s/JAMES KRATOCHVIL (SEAL)
James Kratochvil
Secretary
Dated as of April 21, 1994 BERRY-CPI PLASTICS CORP., as Guarantor
By:/s/ROBERTO BUARON
Name: Roberto Buaron
Title: Chairman
Attest:
/s/JAMES KRATOCHVIL (SEAL)
James Kratochvil
Secretary
Dated as of April 21, 1994 UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
By:/s/JOHN GUILIANO
Name: John Guiliano
Title: Vice President
Attest:
(SEAL)
Dated as of April 21, 1994
_______________________________________________________________________________
_______________________________________________________________________________
EXHIBIT A
(Face of Note)
12 1/4% Senior Subordinated Notes due 2004
No. $____________
BERRY PLASTICS CORPORATION
promises to pay to
or registered assigns,
the principal sum of
Dollars on April 15, 2004.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated:___________________ __, 1994
BERRY PLASTICS CORPORATION
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
(SEAL)
This is one of the Notes
referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: __________________________
Authorized Signatory
_______________________________________________________________________________
_______________________________________________________________________________
(Back of Security)
12 1/4% SENIOR SUBORDINATED NOTE
DUE April 15, 2004
"UNTIL THE EARLIEST TO OCCUR OF (I) OCTOBER 15, 1994, (II) SUCH
EARLIER DATE AS MAY BE DETERMINED BY DONALDSON, LUFKIN &
JENRETTE SECURITIES CORPORATION ("DLJ") WITH THE CONSENT OF BPC
HOLDING CORPORATION ("HOLDING"), WHICH CONSENT MAY NOT BE
UNREASONABLY WITHHELD, (III) IN THE EVENT OF A CHANGE OF CONTROL
(AS DEFINED IN THE INDENTURE (THE "INDENTURE") GOVERNING THE
12 1/4% SENIOR SUBORDINATED NOTES DUE 2004 (THE "NOTES") OF BERRY
PLASTICS CORPORATION ("BERRY")), THE DATE BERRY MAILS NOTICE THEREOF TO
HOLDERS OF NOTES AND (iv) IN THE EVENT OF AN ASSET SALE OFFER (AS
DEFINED IN THE INDENTURE), THE DATE BERRY MAILS NOTICE THEREOF TO
HOLDERS OF NOTES, THE NOTES EVIDENCED HEREBY MAY NOT BE SOLD,
ASSIGNED OR OTHERWISE TRANSFERRED TO ANY PERSON UNLESS,
SIMULTANEOUSLY WITH SUCH TRANSFER, THE HOLDER HEREOF TRANSFERS TO
THE SAME TRANSFEREE FOR EACH ONE WARRANT (SUBJECT TO AN
ADJUSTMENT UNDER SECTION 14 OF THE WARRANTY AGREEMENT, DATED AS OF
APRIL 21, 1994, BETWEEN HOLDING AND UNITED STATES TRUST COMPANY
OF NEW YORK, AS WAAAANT AGENT) TO PURCHASE 1.13237 SHARES OF
CLASS A COMMON STOCK, PAR VALUE $.00005 PER SHARE, OF HOLDING
$1,000 PRINCIPAL AMOUNT OF NOTES SO TRANSFERRED."
By accepting a Note bearing the legend above, each Holder of a Note shall
be bound by all of the terms and provisions of the Warrant Agreement (a copy of
which is available on request to Holding or the Warrant Agent) AS fully and
effectively AS if such Holder had signed the same.
Capitalized terms used herein have the meanings assigned to them
in the Indenture (as defined below) unless otherwise indicated.
1. INTEREST. Berry Plastics Corporation, a Delaware corporation (the
oCompany~), promises to pay interest on the principal amount of this Note at the
rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount of
this Note at the rate per annum of 12 1/4%. The Company will pay interest
semi-annually on October 15 and April 15 of each year, or if any such day is not
a Business Day (as defined in the Indenture), on the next succeeding Business
Day (each an "Interest Payment Date").
Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months. Interest shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Notes. To the extent lawful, the Company shall pay
interest on overdue principal at the rate of 1% per annum in excess of the then
applicable interest rate on the Notes; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
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2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date. The Holder hereof must surrender this Note to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal, premium, if any, and interest by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice to any Holder. The Company or any Guarantor (as
defined below) may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of April 21, 1994 (the "Indenture") among the Company, BPC Holding
Corporation, a Delaware corporation ("Holding"), Berry Iowa Corporation, a
Delaware corporation ("Berry Iowa"), Berry-CPI Plastics Corp., a Delaware
corporation ("Berry-CPI Plastics"; Berry-CPI Plastics, together with Holding and
Berry Iowa, 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. Code ss.ss. 77aaa-77bbbb) as in
effect on the date of the Indenture. The Notes are subject to all such terms,
and Holders of the Notes are referred to the Indenture and such act for a
statement of such terms. The terms of the indenture shall govern any
inconsistencies between the Indenture and the Notes. The Notes are unsecured
general obligations of the Company limited to $100,000,000 in aggregate
principal amount.
5. OPTIONAL REDEMPTION. Except as set forth below, the Company shall
not have the option to redeem the Notes pursuant to Section 3.07 of the
Indenture prior to April 15, 1999. Thereafter, the Company shall have the option
to redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of the principal amount) set forth below, plus accrued and unpaid
interest thereon, to the applicable redemption date, if redeemed during the 12
month period beginning on April 15 of the years indicated below:
YEAR PERCENTAGE
1999 106.125%
2000 104.083%
2001 102.042%
2002 AND THEREAFTER 100.000%
Notwithstanding the foregoing, at any tune prior to April 15, 1997,
the Company may redeem up to 25 % of the initial principal amount of the Notes
originally issued from the net proceeds of one or more public offerings of the
Common Stock of Holding, to the extent such net proceeds are contributed or
otherwise transferred to the Company as a capital contribution or are used to
purchase common equity securities of the Company at a redemption price equal to
111.25% of the principal amount thereof plus accrued and unpaid interest, if
any, to the redemption date; PROVIDED that at least 75 % of the principal of
Notes originally issued remain outstanding immediately after the occurrence of
any such redemption and that such redemption occurs within 60 days following the
closing of any such public offering.
6. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
A-3
7 REDEMPTION OR REDEMPTION AT OPTION OF HOLDER. (a) If there is a
Change of Control, the Company shall be required to offer to purchase all Notes
at 101 % of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase. Holders of Notes that are subject to
an offer to purchase will receive an offer to purchase from the Company prior to
any related purchase date, and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" appearing
below.
(b) When the aggregate amount of Excess Proceeds from Asset Sales
exceeds $5 million, the Company shall be required to offer to purchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds at 101 % of the principal amount thereof plus accrued and unpaid
interest, if any, to the date fixed for the closing of such offer. If the
aggregate principal amount of Notes tendered by Holders thereof exceeds the
amount of Excess Proceeds, the Notes to be redeemed shall be selected pursuant
to the terms of Section 3.02 of the Indenture (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased). To the extent that the
aggregate amount of Notes tendered by Holders thereof is less than the Excess
Proceeds, the Company may use such deficiency for general corporate purposes.
Holders of Notes which are the subject of an offer to purchase will receive an
offer to purchase from the Company prior to any related purchase date, and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but than 60 days before the redemption date to each Holder of
Notes to be redeemed at its address. Notes may be redeemed in part but only in
whole multiples of $1,000, unless all of held by a Holder are to be redeemed. On
and after the redemption date, interest~ ceases to Notes or portions of them
called for redemption.
9. SUBORDINATION. The Notes are subordinated to Senior Indebtedness
of the Company (whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed) and all Obligations with respect
thereto. To the extent provided in the Indenture, Senior Indebtedness of the
Company must be paid before the Notes may be paid. The Company agrees, and each
Holder by accepting a Note agrees, to the subordination and authorizes the
Trustee to give it effect.
10. NOTE GUARANTEES. Payment of principal of, premium, if any, and
interest (including interest on overdue principal, premium, if any, and
interest, if lawful) on the Notes is unconditionally guaranteed by the
Guarantors, on a senior subordinated basis, pursuant to Article 10 of the
Indenture.
11. DENOMINATIONS. TRANSFER. EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before ~ selection of Notes to be
redeemed, during the period between a record date and the corresponding Interest
Payment Date.
12. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee
for registration of the transfer of this Note, the Trustee, any Agent, the
Company and the Guarantors may deem and treat the Person in whose name this Note
is registered as its absolute owner for the purpose of receiving payment of
principal of and interest on this Note and for all other purposes whatsoever,
whether or not
A-4
this Note is overdue, and neither the Trustee, any Agent, the Company nor any
Guarantor shall be affected by notice to the contrary. The registered holder of
a Note shall be treated as its owner for all purposes.
13. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing default or compliance with any provision of the
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 tender offer or exchange offer for Notes). Without
the consent of any Holder, the Indenture or the Notes may be amended to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for assumption of the
Company's or any Guarantor's obligations to Holders in the case of a merger or
consolidation or to make any change that would provide any additional rights or
benefits to the Holders (including providing for additional Note Guarantees
pursuant to Section 4.13 of the Indenture) or that does not adversely affect the
rights of any Holder under the Indenture or to comply with the requirements of
the SEC in order to effect or maintain the qualification of the Indenture under
the TIA.
14. DEFAULTS AND REMEDIES. Events of Default include: default by the
Company or the Guarantors in the payment when due of interest on the Notes
(whether or not prohibited by the subordination provisions of Article 10 or
Article 11 of the Indenture, as the case may be) and such default continues for
a period of 30 days; default by the Company or the Guarantors in the payment
when due of principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of Article 10 or Article 11 of the
Indenture, as the case may be) when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase or
otherwise); failure by the Company to comply with Sections 4.07, 4.09, 4.10 or
4.15 of the Indenture; failure by the Company or the Guarantors to observe or
perform any other covenant, representation, warranty or other agreement in the
Notes for 60 days after the notice to the Company by the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding; default
occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company, Holding or any of their respective Subsidiaries (or the
payment of which is guaranteed by the Company, Holding or any of their
respective Subsidiaries) whether such Indebtedness or Guarantee now exists, or
is created after the Issuance Date, which default (a) is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $2 million or1T?~re; a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company, Holding or any of their respective
Subsidiaries and such judgment or judgments remain unpaid or undischarged for a
period (during which execution shall not be effectively stayed) of 60 days,
PROVIDED that the aggregate of all such undischarged judgments exceeds $2
million; except as permitted by the Indenture, any Note Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor (or its successors or
assigns), or any Person acting on behalf of such Guarantor (or its successors or
assigns), shall deny or disaffirm its obligations or shall fail to comply with
any obligations under its Note Guarantee; and certain events of bankruptcy or
insolvency with respect to the Company, any Guarantor or any of their respective
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately; except, that if any
A-5
Indebtedness is outstanding pursuant to the New Revolving Credit Facility, upon
a declaration of acceleration, the principal and interest on the Notes shall be
payable upon the earlier of (1) the day which is five business days after notice
of acceleration is given to the Company and the lender under the New Revolving
Credit Facility or (2) the date of acceleration of the Indebtedness under the
New Revolving Credit Facility and except that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company or any of its Subsidiaries, all outstanding Notes will become due and
payable without further action or notice. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Company must furnish an annual compliance certificate
to the Trustee.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, the Guarantors or their respective
Affiliates, and may otherwise deal with the Company the Guarantors or their
respective Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes, the Note Guarantees, the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note and the Note Guarantees waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and the Note Guarantees.
17. AUTHENTICATION. Neither this Note nor any Note Guarantee shall
be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to 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.
20. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO ~NSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
A-6
Berry Plastics Corporation
101 Oakley Street
P.O. Box 959
Evansville, Indiana 47706-0959
Attention:Chief Financial Officer
NOTE GUARANTEE
Each of the Guarantors and each Subsidiary of the Company which in
accordance with Section 4.13 of the Indenture is required to guarantee the
obligations of the Company under the Notes upon execution of a counterpart of
this Indenture, has jointly and severally unconditionally guaranteed (I) the due
and punctual payment of the principal of and interest on the Notes, whether at
the maturity or interest payment or mandatory redemption date, by acceleration,
call for redemption or otherwise, and of interest on the overdue principal of
and interest, if any, on the Notes and all other obligations of the Company to
the Holders or the Trustee under the Indenture or the Notes and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at maturity,
by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the Trustee
pursuant to this Note Guarantee and the Indenture are as expressly set forth in
Article 10 of the Indenture, and reference is hereby made to such Indenture for
the precise terms of this Note Guarantee. The terms of Article 10 of the
Indenture are incorporated herein by reference.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of the Company's obligations under the Notes
and the Indenture 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 herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This is
a guarantee of payment and not a guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Note
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
A-7
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Guarantors:
BPC HOLDING CORPORATION
By:_____________________________________
Name:
Title:
Attest:
_____________________________________ (SEAL)
BERRY IOWA CORPORATION
By:_____________________________________
Name:
Title:
Attest:
_____________________________________ (SEAL)
BERRY-CPI PLASTICS CORP.
By:_____________________________________
Name:
Title:
Attest:
_____________________________________ (SEAL)
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
_______________________________________________________________________________
(INSERT ASSIGNEE'S SOC. SEC. OR tax I.D. NO~)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
and irrevocably appoint________________________________________________________
To transfer this Note on the books of the Company. The agent may substitute
another to act for him.
_______________________________________________________________________________
Date:__________________
Your Signature:_______________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 (upon the occurrence of an Asset Sale) or 4.15 (upon the occurrence
of a Change of Control) of the Indenture, check the box below:
[]Section 4.10 []Section 4.15
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.15 of the Indenture, state the amount you elect to have
purchased: $__________
Date: _________________ Your Signature: ______________________________
(Sign exactly as your name appears on
on the Note)
Tax Identification No.:_____________
Signature Guarantee.
A-10
EXHIBIT B
[FORM OF NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO THE NOTE GUARANTEES]
Each of the Guarantors and each Subsidiary of the Company which in
accordance with Section 4.13 of the Indenture is required to guarantee the
obligations of the Company under the Notes upon execution of a counterpart of
this Indenture, has jointly and severally unconditionally guaranteed (i) the due
and punctual payment of the principal of and interest on the Notes, whether at
the maturity or interest payment or mandatory redemption date, by acceleration,
call for redemption or otherwise, and of interest on the overdue principal of
and interest, if any, on the Notes and all other obligations of the Company to
the Holders or the Trustee under the Indenture or the Notes and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at maturity,
by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the Trustee pursuant
to this Note Guarantee and the Indenture are as expressly set forth in Article
10 of the Indenture, and reference is hereby made to such Indenture for the
precise terms of this Note Guarantee. The terms of Article 10 of the Indenture
are incorporated herein by reference.
This is a continuing guarantee and shall remain in full force and effect
and shall be binding upon each Guarantor and its successors and assigns until
full and final payment of all of the Company's obligations under the Notes and
the Indenture 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 herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a guarantee
of payment and not a guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Note Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
B-1