EXHIBIT 10.27
EXECUTION COPY
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BERRY PLASTICS CORPORATION
BPC HOLDING CORPORATION
BERRY PLASTICS ACQUISITION CORPORATION
BERRY IOWA CORPORATION
BERRY TRI-PLAS CORPORATION
BERRY STERLING CORPORATION
AEROCON, INC.
PACKERWARE CORPORATION, a Kansas corporation
PACKERWARE CORPORATION, a Delaware corporation
BERRY PLASTICS DESIGN CORPORATION
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC., an Ohio corporation
VENTURE PACKAGING MIDWEST, INC., a Delaware corporation
VENTURE PACKAGING SOUTHEAST, INC., a South Carolina corporation
VENTURE PACKAGING SOUTHEAST, INC., a Delaware corporation
NIM HOLDINGS LIMITED
NORWICH INJECTION MOULDERS LIMITED
NORWICH ACQUISITION LIMITED
KNIGHT PLASTICS, INC.
CPI HOLDING CORPORATION
CARDINAL PACKAGING, INC.
11% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
Dated as of July 6, 1999
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UNITED STATES TRUST COMPANY OF NEW YORK
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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).................................................. 12.04
(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 ................... 1
SECTION 1.01 DEFINITIONS .......................................... 1
SECTION 1.02 OTHER DEFINITIONS .................................... 15
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT .... 16
SECTION 1.04 RULES OF CONSTRUCTION ................................ 16
ARTICLE 2 THE NOTES .................................................... 16
SECTION 2.01 FORM AND DATING .................................... 16
SECTION 2.02 EXECUTION AND AUTHENTICATION ....................... 17
SECTION 2.03 REGISTRAR AND PAYING AGENT ......................... 18
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST ................ 19
SECTION 2.05 LISTS OF HOLDERS OF THE NOTES ...................... 19
SECTION 2.06 TRANSFER AND EXCHANGE .............................. 19
SECTION 2.07 REPLACEMENT NOTES .................................. 30
SECTION 2.08 OUTSTANDING NOTES .................................. 31
SECTION 2.09 TREASURY NOTES ..................................... 31
SECTION 2.10 TEMPORARY NOTES .................................... 31
SECTION 2.11 CANCELLATION ....................................... 32
SECTION 2.12 DEFAULTED INTEREST ................................. 32
SECTION 2.13 RECORD DATE ........................................ 33
SECTION 2.14 CUSIP NUMBER ....................................... 33
ARTICLE 3 REDEMPTION AND PREPAYMENT .................................... 33
SECTION 3.01 NOTICES TO TRUSTEE ................................. 33
SECTION 3.02 SELECTION OF NOTES TO BE PURCHASED OR REDEEMED ..... 33
SECTION 3.03 NOTICE OF PURCHASE OR REDEMPTION ................... 34
SECTION 3.04 EFFECT OF NOTICE OF PURCHASE OR REDEMPTION ......... 34
SECTION 3.05 DEPOSIT OF PURCHASE OR REDEMPTION PRICE ............ 35
SECTION 3.06 NOTES PURCHASED OR REDEEMED IN PART ................ 35
SECTION 3.07 OPTIONAL REDEMPTION ................................ 35
SECTION 3.08 MANDATORY REDEMPTION ............................... 36
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS 36
ARTICLE 4 COVENANTS .................................................... 37
SECTION 4.01 PAYMENT OF NOTES ................................... 37
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY .................... 38
SECTION 4.03 REPORTS ............................................ 38
SECTION 4.04 COMPLIANCE CERTIFICATE ............................. 39
SECTION 4.05 TAXES .............................................. 39
SECTION 4.06 STAY, EXTENSION AND USURY LAWS ..................... 40
SECTION 4.07 RESTRICTED PAYMENTS ................................ 40
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES ....................................... 42
i
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK ................................. 42
SECTION 4.10 ASSET SALES ........................................ 45
SECTION 4.11 TRANSACTIONS WITH AFFILIATES ....................... 46
SECTION 4.12 LIENS .............................................. 46
SECTION 4.13 ADDITIONAL GUARANTEES .............................. 46
SECTION 4.14 CORPORATE EXISTENCE ................................ 47
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL ......... 47
SECTION 4.16 NO SENIOR SUBORDINATED INDEBTEDNESS ................ 48
SECTION 4.17 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES 48
ARTICLE 5 SUCCESSORS ................................................... 49
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ASSETS ............ 49
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED .................. 49
ARTICLE 6 DEFAULTS AND REMEDIES ........................................ 49
SECTION 6.01 EVENTS OF DEFAULT .................................. 49
SECTION 6.02 ACCELERATION ....................................... 51
SECTION 6.03 OTHER REMEDIES ..................................... 52
SECTION 6.04 WAIVER OF PAST DEFAULTS ............................ 52
SECTION 6.05 CONTROL BY MAJORITY ................................ 53
SECTION 6.06 LIMITATION ON SUITS ................................ 53
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT ...... 53
SECTION 6.08 COLLECTION SUIT BY TRUSTEE ......................... 54
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM ................... 54
SECTION 6.10 PRIORITIES ......................................... 54
SECTION 6.11 UNDERTAKING FOR COSTS .............................. 55
ARTICLE 7 TRUSTEE ...................................................... 55
SECTION 7.01 DUTIES OF TRUSTEE .................................. 55
SECTION 7.02 RIGHTS OF TRUSTEE .................................. 56
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE ....................... 56
SECTION 7.04 TRUSTEE'S DISCLAIMER ............................... 57
SECTION 7.05 NOTICE OF DEFAULTS ................................. 57
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES ......... 57
SECTION 7.07 COMPENSATION AND INDEMNITY ......................... 57
SECTION 7.08 REPLACEMENT OF TRUSTEE ............................. 58
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC ................... 59
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION ...................... 59
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY .. 60
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE ..................... 60
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE ................................ 60
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE ..................... 60
SECTION 8.03 COVENANT DEFEASANCE ................................ 60
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE ......... 61
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS ........... 62
SECTION 8.06 REPAYMENT TO COMPANY ............................... 62
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SECTION 8.07 REINSTATEMENT ...................................... 63
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER ............................. 63
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES ................ 63
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES ................... 64
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT ................ 65
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS .................. 65
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES ................... 66
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC .................... 66
ARTICLE 10 NOTE GUARANTEES ............................................. 66
SECTION 10.01 NOTE GUARANTEE .................................... 66
SECTION 10.02 SUBORDINATION ..................................... 67
SECTION 10.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY .............. 68
SECTION 10.04 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS OF
THE GUARANTOR ..................................... 68
SECTION 10.05 ACCELERATION OF NOTES ............................. 69
SECTION 10.06 WHEN DISTRIBUTION MUST BE PAID OVER ............... 69
SECTION 10.07 NOTICE BY A GUARANTOR ............................. 70
SECTION 10.08 SUBROGATION ....................................... 70
SECTION 10.09 RELATIVE RIGHTS ................................... 70
SECTION 10.10 SUBBORDINATION MAY NOT BE IMPAIRED BY ANY GUARANTOR 70
SECTION 10.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE .......... 70
SECTION 10.12 RIGHTS OF TRUSTEE AND PAYING AGENT ................ 71
SECTION 10.13 AUTHORIZATION TO EFFECT SUBORDINATION ............. 71
SECTION 10.14 LIMITATION OF GUARANTOR'S LIABILITY ............... 71
SECTION 10.15 EXECUTION AND DELIVERY OF NOTE GUARANTEE .......... 72
SECTION 10.16 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS 72
SECTION 10.17 RELEASES FOLLOWING SALE OF ASSETS ................. 72
ARTICLE 11 SUBORDINATION ............................................... 73
SECTION 11.01 SUBORDINATION ..................................... 73
SECTION 11.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY .............. 73
SECTION 11.03 DEFAULT ON SENIOR INDEBTEDNESS .................... 73
SECTION 11.04 ACCELERATION OF NOTES ............................. 74
SECTION 11.05 WHEN DISTRIBUTION MUST BE PAID OVER ............... 74
SECTION 11.06 NOTICE BY COMPANY ................................. 75
SECTION 11.07 SUBROGATION ....................................... 75
SECTION 11.08 RELATIVE RIGHTS ................................... 75
SECTION 11.09 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY ...... 76
SECTION 11.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE .......... 76
SECTION 11.11 RIGHTS OF TRUSTEE AND PAYING AGENT ................ 76
SECTION 11.12 AUTHORIZATION TO EFFECT SUBORDINATION ............. 76
ARTICLE 12 MISCELLANEOUS ............................................... 77
SECTION 12.01 TRUST INDENTURE ACT CONTROLS ...................... 77
SECTION 12.02 NOTICES ........................................... 77
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES .................................. 78
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT 78
iii
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION ..... 78
SECTION 12.06 RULES BY TRUSTEE AND AGENTS ....................... 79
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS ........................ 79
SECTION 12.08 GOVERNING LAW ..................................... 79
SECTION 12.09 CONSENT TO JURISDICTION ........................... 79
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ..... 79
SECTION 12.11 SUCCESSORS ........................................ 79
SECTION 12.12 SEVERABILITY ...................................... 80
SECTION 12.13 COUNTERPART ORIGINALS ............................. 80
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC .................. 80
EXHIBITS
EXHIBIT A-1 FORM OF NOTE
EXHIBIT A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
EXHIBIT E FORM OF NOTATION ON SENIOR SUBORDINATED NOTE RELATING TO THE NOTE
GUARANTEES
iv
INDENTURE dated as of July 6, 1999 among Berry Plastics Corporation,
a Delaware corporation (the "Company"), BPC Holding Corporation, a Delaware
corporation ("Holding"), Berry Plastics Acquisition Corporation, a Delaware
corporation ("Berry Acquisition"), Berry Iowa Corporation, a Delaware
corporation ("Berry Iowa"), Berry Tri Plas Corporation, a Delaware corporation
("Berry Tri Plas"), Berry Sterling Corporation, a Delaware corporation ("Berry
Sterling"), AeroCon, Inc., a Delaware corporation ("AeroCon"), PackerWare
Corporation, a Kansas corporation ("PackerWare'), PackerWare Corporation, a
Delaware corporation ("PackerWare Delaware"), Berry Plastics Design Corporation,
a Delaware corporation ("Berry Design"), Venture Packaging, Inc., a Delaware
corporation ("Venture Holdings"), Venture Packaging Midwest, Inc., an Ohio
corporation ("Venture Midwest"), Venture Packaging Midwest Inc., a Delaware
corporation ("Venture Midwest Delaware"), Venture Packaging Southeast, Inc., a
South Carolina corporation ("Venture Southeast"), Venture Packaging Southeast,
Inc., a Delaware corporation ("Venture Southeast Delaware"), NIM Holdings
Limited, a company organized under the laws of England and Wales ("NIM
Holdings"), Norwich Injection Moulders Limited, a company organized under the
laws of England and Wales ("Norwich"), Norwich Acquisition Limited, a company
organized under the laws of England and Wales ("Norwich Acquisition"), Knight
Plastics, Inc., a Delaware corporation ("Knight"), CPI Holding Corporation, a
Delaware corporation ("CPI"), Cardinal Packaging, Inc., an Ohio corporation
("Cardinal"), 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 11% Series A Senior Subordinated Notes due 2007 (the "Series A Notes") and
the 11% Series B Senior Subordinated Notes due 2007 (the "Series B Notes" and,
together with the Series A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person (a)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, whether or not
such Indebtedness is incurred in connection with, or in contemplation of, such
other Person merging with or into or becoming a Subsidiary of such specified
Person; and (b) Indebtedness encumbering any asset acquired by such specified
Person.
"ADDITIONAL NOTES" means an unlimited number of additional Notes
(other than the Initial Notes) issued under this Indenture in accordance with
Sections 2.02 and 4.09 hereof.
"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,"
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. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" shall have correlative meanings. Neither Chase Venture
Capital Associates, L.P. nor its respective Affiliates shall be deemed an
Affiliate of Holding, the Company or any of its Subsidiaries for purposes of
this definition by reason of its direct or indirect beneficial ownership of 30%
or less of the voting 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.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"ASSET SALE" means (a) the sale, lease, conveyance or other
disposition of any property or assets of the Company or any Restricted
Subsidiary, including by way of a sale-and-leaseback, other than sales of
inventory in the ordinary course of business; PROVIDED that the sale, conveyance
or other disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries shall be governed by Section 4.15 hereof and/or
Section 5.01 hereof and not by the provisions of Section 4.10 hereof; or (b) the
issuance or sale of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (a) or (b) above, whether in a single
transaction or a series of related transactions.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales (i) any single transaction or series of related
transactions that involves assets having a fair market value equal to or less
than $1.0 million or for Net Proceeds equal to or less than $1.0 million; (ii) a
transfer of assets between or among the Company and its Wholly Owned Restricted
Subsidiaries, (iii) any Restricted Payment, dividend or purchase or retirement
of Equity Interests that is permitted by Section 4.07 hereof; (iv) the issuance
or sale of Equity Interests of any Restricted Subsidiary of the Company;
PROVIDED that such Equity Interests are issued or sold in consideration for the
acquisition of assets by such Restricted Subsidiary or in connection with a
merger or consolidation of another Person into such Restricted Subsidiary; (v)
the sale or lease of equipment, inventory, accounts receivable or other assets
in the ordinary course of business; and (vi) the sale or other disposition of
cash or Cash Equivalents.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"BOARD OF DIRECTORS" means (a) with respect to a corporation, the
board of directors of the corporation; (b) with respect to a partnership, the
board of directors of the general partner of the partnership; and (c) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"BORROWING BASE" means, as of any date, an amount equal to (a) 85%
of the face amount of all accounts receivable owned by the Company and its
Subsidiaries as of such date that were not more than 90 days past due; PLUS (b)
65% of the book value (calculated on a first in first out 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.
"BROKER-DEALER" has the meaning set forth in the Registration
Rights Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
2
"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 that 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 (a) United States dollars; (b) 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; (c) 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 Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $500.0 million; (d) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above; and (e)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or Standard & Poor's Rating Services and in each case maturing
within six months after the date of acquisition.
"CEDEL" means Cedel Bank, SA.
"CHANGE OF CONTROL" means the occurrence of (a) 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 those
terms are used in Section 13(d)(3) of the Exchange Act) other than the Principal
and his Related Parties; (b) the adoption of a plan relating to the liquidation
or dissolution of Holding or the Company; (c) the acquisition by any "person" or
"group" (as defined above), other than by the Principal and his 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 (i) such person or group (as defined above), other than the Principal and his
Related Parties, owns, directly or indirectly, more of the voting power of the
voting stock of Holding than the Principal and his Related Parties; and (ii)
such acquisition occurs prior to an Initial Public Offering; (d) 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 Principal and his 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 an Initial Public Offering; or (e) the first
day on which a majority of the members of the Board of Directors of Holding are
not Continuing Directors.
"COMMON STOCK OF HOLDING" means the Class A Common Stock, $.00005
par value per share, and the Class B Common Stock, $.00005 par value per share,
of Holding.
"CONSOLIDATED CASH FLOW" means, with respect to any specified 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 by such
Person or any of its Restricted Subsidiaries in connection with an Asset Sale,
to the extent such losses were deducted in computing Consolidated Net Income;
PLUS (b) provision for taxes based on income or profits of such Person and its
Restricted
3
Subsidiaries 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 and its Restricted Subsidiaries 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 and
its Restricted Subsidiaries 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 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 Restricted Subsidiaries for such period, whether paid or accrued, to the
extent such expense was deducted in computing Consolidated Net Income (including
amortization of original issue discount, 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 for such period whether or not paid by such Person or its
Restricted Subsidiaries under a Guarantee of Indebtedness of any other Person.
"CONSOLIDATED NET INCOME" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED that (a) the Net Income of any Person that is not
a Restricted 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 specified Person or a Guarantor; (b) the Net Income of
any Person that is a Restricted Subsidiary (other than a Wholly Owned Restricted
Subsidiary) shall be included only to the extent of the amount of dividends or
distributions paid to the specified Person or a Guarantor; (c) 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; (d) the cumulative effect of
a change in accounting principles shall be excluded; and (e) the Net Income (but
not loss) of any Unrestricted Subsidiary shall be excluded whether or not
distributed to the specified Person or one of its Subsidiaries.
"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 to the extent such
depreciation was deducted in computing Consolidated Net Income.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of Holding who (a) was a member of such Board
of Directors on the date of this Indenture; or (b) 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.
4
"CREDIT FACILITY" means the Second Amended and Restated Financing
and Security Agreement dated as of July 2, 1998, as amended through the date
hereof by and among the Company, NIM Holdings Limited, Norwich Injection
Moulders Limited, the financial institutions party thereto and NationsBank,
N.A., as collateral and administrative agent, providing for up to $142.9 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.
"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.
"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.
"DEFINITIVE NOTE" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DESIGNATED SENIOR INDEBTEDNESS" means (a) the Senior Bank
Indebtedness; and (b) any other Senior Indebtedness permitted to be incurred
under this Indenture the principal amount of which is $15.0 million or more and
that has been 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 the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an
asset sale shall not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 4.07 hereof.
"DISTRIBUTION" means, for purposes of Articles 10 and 11, a
distribution consisting of cash, securities or other property, by set-off or
otherwise.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary
that was formed under the laws of the United States or any state thereof or the
District of Columbia or that guarantees or otherwise provides direct credit
support for any Indebtedness of the Company.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
5
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Facility) in existence on
the date of this Indenture, until such amounts are repaid.
"FIRST ATLANTIC" means First Atlantic Capital, Ltd.
"FIXED CHARGES" means, with respect to any specified Person for any
period, the sum, without duplication, of (a) the Consolidated Interest Expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued, to the extent such expense was deducted in computing Consolidated Net
Income; PLUS (b) the product of (i) all cash dividend payments and noncash
dividend payments in the form of securities (other than Disqualified Stock) on
any series of preferred stock of such Person and its Restricted Subsidiaries,
times (ii) except to the extent such dividend payments are deemed tax
deductible, 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 and its Restricted Subsidiaries, 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 specified
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 specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases or redeems any Indebtedness (other than
revolving credit borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the 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, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
For purposes of calculating the Fixed Charge Coverage Ratio,
acquisitions, dispositions and discontinued operations (as determined in
accordance with GAAP) that have been made by the specified Person or any of its
Restricted Subsidiaries, including all mergers and consolidations and including
any related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be given pro forma effect as if they (and the reduction of any associated
fixed charge obligations resulting therefrom) had occurred on the first day of
the four-quarter reference period.
6
"GAAP" means generally 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 date of this Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A-1 hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"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, through letters of
credit and reimbursement agreements in respect thereof, of all or any part of
any Indebtedness.
"GUARANTORS" means each of (a) each Domestic Restricted Subsidiary
of the Company; (b) NIM Holdings Limited, a company organized under the laws of
England and Wales, and Norwich Injection Moulders Limited, a company organized
under the laws of England and Wales; and (c) any other Restricted Subsidiary
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 specified Person,
the obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and (b) 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.
"IAI GLOBAL NOTE" means a global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that shall be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such person, whether or not: (a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof); (c) representing
Capital Lease Obligations; (d) in respect of the balance deferred and unpaid of
the purchase price of any property, except such balance that constitutes an
accrued expense or trade payable; or (e) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes the Guarantee by the specified Person of any
indebtedness of any other Person.
7
The amount of any Indebtedness outstanding as of any date will be:
(a) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and (b) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL NOTES" means the first $75.0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"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.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"INTEREST PAYMENT DATE" shall have the meaning given to it in the
Notes.
"INVESTMENTS" means, with respect to any Person, all direct or
indirect 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. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.07 hereof. The acquisition by the Company or any Restricted Subsidiary
of the Company of a Person that holds an Investment in a third Person shall be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person in an amount determined as provided
in the final paragraph of Section 4.07 hereof.
"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.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by the
Holders in connection with the Exchange Offer.
"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
8
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
"LIQUIDATED DAMAGES" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"NET INCOME" means, with respect to any specified 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 (a) any
gain (but 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 (b)
any extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted 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, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, and 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
indemnification adjustment in respect of the sale price of such asset or assets.
"1998 INDENTURE" means the Indenture dated August 24, 1998 among the
Company, the Guarantors named therein and the Trustee, governing the 1998 Notes.
"1994 INDENTURE" means the Indenture dated April 21, 1994 among the
Company, the Guarantors named therein and the Trustee, governing the 1994 Notes.
"1998 NOTES" means the $25.0 million in principal amount of the
Company's 12 1/4% Senior Subordinated Notes due 2004.
"1994 NOTES" means the $100.0 million in principal amount of the
Company's 12 1/4% Senior Subordinated Notes due 2004.
"NON-RECOURSE DEBT" means Indebtedness (a) as to which neither the
Company nor any of its Restricted Subsidiaries (i) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor
or otherwise, or (iii) is the lender; (b) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness (other than the Notes) of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (c) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
9
"NOTES" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes, if any, shall be treated
as a single class for all purposes under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"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.
"144A GLOBAL NOTE" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"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.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear and Cedel).
"PERMITTED INVESTMENTS" means (a) any Investments in the Company or
in a Wholly Owned Restricted Subsidiary of the Company; (b) any Investment in
Cash Equivalents; (c) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person becomes a
Wholly Owned Restricted Subsidiary of the Company; or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company; (c) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof; (d) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; and (e) Hedging Obligations.
"PERMITTED JUNIOR SECURITIES" means (a) Equity Interests in the
Company or any Guarantor; or (b) debt securities that are subordinated to all
Senior Indebtedness and any debt securities issued in exchange for Senior
Indebtedness to substantially the same extent as, or to a greater extent than,
the Notes and the Note Guarantees are subordinated to Senior Indebtedness under
this Indenture.
"PERMITTED LIENS" means (a) Liens of the Company and any Guarantor
securing Senior Indebtedness that was permitted by the terms of this Indenture
to be incurred; (b) Liens in favor of the Company or the Guarantors; (c) Liens
on property of a Person existing at the time such Person is merged
10
with or into or consolidated with the Company or any Restricted Subsidiary of
the Company; PROVIDED that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company or
the Restricted Subsidiary; (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
PROVIDED that such Liens were in existence prior to the contemplation of such
acquisition; (e) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (f) Liens to secure Indebtedness
(including Capital Lease Obligations) permitted by clause (d) of the second
paragraph of Section 4.09 hereof covering only the assets acquired with such
Indebtedness; (g) Liens existing on the date of this Indenture; (h) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (i) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries; and (j) Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $5.0 million at any one
time outstanding.
"PERMITTED REFINANCING" means Refinancing Indebtedness if (a) the
principal amount of Refinancing Indebtedness does not exceed the principal
amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of premiums, accrued interest and reasonable
expenses incurred in connection therewith); (b) the Refinancing Indebtedness has
a final maturity date later than the final maturity date of, and 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) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes, the Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and 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; and (d) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on 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,
limited liability company, government or any agency or political subdivision
thereof or any other entity.
"PRINCIPAL" means Roberto Buaron.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"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 the first paragraph of or in
clauses (b), (c), (d) and (l) of the second paragraph of Section 4.09 hereof.
11
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of July 6, 1999, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act."
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S or a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary global Note
in the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"RELATED PARTY" means with respect to the Principal (a) any spouse,
sibling or descendant of the 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 the 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 DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
12
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"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 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 (a) the Senior Bank Indebtedness; (b)
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; and (c) all Obligations with respect to the items listed in
the preceding clauses (a) and (b).
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) the portion of any Indebtedness that is incurred in violation
of this Indenture.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"STATED MATURITY" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"STOCK EXCHANGE" means the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market.
"SUBSIDIARY" means, with respect to any specified Person (a) 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; and (b) any
13
partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general
partners of which are such Person or one or more Subsidiaries of such Person or
any combination thereof.
"TAX SHARING AGREEMENT" means that certain Tax Sharing Agreement, as
in effect on the date of this Indenture, 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.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do
not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a resolution of the Company's Board of Directors, but only to the extent that
such Subsidiary (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (c) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (i) to subscribe for additional Equity
Interests or (ii) to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of operating results; (d)
has not guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness of the Company or any of its Restricted Subsidiaries; and
(e) has at least one director on its Board of Directors that is not a director
or executive officer of the Company or any of its Restricted Subsidiaries and
has at least one executive officer that is not a director or executive officer
of the Company or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Resolution of the Company's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the preceding conditions and was permitted by Section
4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under the covenant described under
Section 4.09 hereof, the Company shall be in default of such Section. The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that such designation shall
be deemed to be an incurrence of
14
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (a) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (b) no Default or Event of
Default would be in existence following such designation.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"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 (i) 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 (ii) the
number of years (calculated to the nearest one-twelfth) that shall elapse
between such date and the due date of such payment; by (b) the then outstanding
principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any specified Person means a
Restricted 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
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
"AFFILIATE TRANSACTION"................ 4.11
"ASSET SALE OFFER"..................... 3.09
"BENEFITED 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
15
SECTION 1.03 INCORPORATION BY 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:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"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 DATING.
(a) GENERAL. 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
16
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.
(b) GLOBAL NOTES. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Restricted Period shall be terminated upon
the receipt by the Trustee of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Note (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a 144A Global Note or an IAI Global Note bearing a Private
Placement Legend, all as contemplated by Section 2.06(a)(ii) hereof), and (ii)
an Officers' Certificate from the Company. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel Bank.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
17
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced 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 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 (1) an office or
agency where Notes may be presented for registration of transfer or for exchange
(including any co-registrar, the "REGISTRAR") and (2) 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 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
18
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, premium or Liquidated Damages, 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 and/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) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange
19
for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED GLOBAL
NOTE. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof
20
in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
21
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
22
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL NOTE TO
DEFINITIVE NOTES. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
23
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv)
shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
24
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase
or cause to be increased the aggregate principal amount of, in the
case of clause (A) above, the appropriate Restricted Global Note, in
the case of clause (B) above, the 144A Global Note, in the case of
clause (C) above, the Regulation S Global Note, and in all other
cases, the IAI Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from
25
such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
26
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
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(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in
the applicable Letters of Transmittal that (x) they are not broker-dealers, (y)
they are not participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY MAY
NOT BE OFFERED, SOLD PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL INVESTOR"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OR REGULATION D UNDER THE SECURITIES
ACT (AN "IAI"); (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO BERRY PLASTICS CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
28
AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(iii), (c)(iv),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction
29
of the Trustee to reflect such reduction; and if the beneficial interest is
being exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07 REPLACEMENT NOTES.
30
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 Guarantee
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.
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 any
Guarantor pursuant to an exchange offer, tender offer or other agreement shall
not be deemed to be owned by the Company, a Guarantor, a Subsidiary of the
Company or a Guarantor or an Affiliate of 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 certificates representing 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
31
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 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
provided in this Section 2.12. 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).
32
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 (a) the clause of this Indenture pursuant to
which the redemption shall occur, (b) the redemption date, (c) the principal
amount of Notes to be redeemed and (d) 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 (a) the Section of this Indenture pursuant to which
the offer to purchase shall occur, (b) the offer's terms, (c) the purchase
price, (d) the principal amount of the Notes to be purchased, and (e) a
statement to the effect that (i) 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 (ii) a Change of Control has
occurred, as applicable.
SECTION 3.02 SELECTION OF NOTES TO BE PURCHASED OR REDEEMED.
If less than all 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 shall deem fair and
appropriate. In the event of partial purchase or 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 purchase or
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 purchase or redemption also apply to portions of Notes
called for purchase or redemption.
33
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 PURCHASE OR 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 purchase or redemption to each Holder whose Notes are to be
purchased or redeemed at its registered address.
The notice shall identify the Notes to be purchased or redeemed and
shall state:
(a) the purchase or redemption date;
(b) the purchase or redemption price;
(c) if any Note is being purchased or redeemed in part, the portion of the
principal amount of such Note to be purchased or redeemed and that, after the
purchase or redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unpurchased or 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 purchase or redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such purchase or redemption
payment, interest on Notes called for purchase or redemption ceases to accrue on
and after the purchase or redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being purchased or 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
purchase or 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 purchase or 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 PURCHASE OR REDEMPTION.
Once notice of purchase or redemption is mailed in accordance with
Section 3.03 hereof, Notes called for purchase or redemption become irrevocably
due and payable on the purchase or redemption date at the purchase or redemption
price. A notice of purchase or redemption may not be conditional.
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SECTION 3.05 DEPOSIT OF PURCHASE OR REDEMPTION PRICE.
One Business Day prior to the purchase or redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the purchase or redemption price of and accrued interest on all Notes to
be purchased or 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
purchase or redemption price of, and accrued interest on, all Notes to be
purchased or redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the purchase or redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for purchase or redemption.
If a Note is purchased or 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 purchase or redemption
shall not be so paid upon surrender for purchase or redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the purchase or 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 PURCHASED OR REDEEMED IN PART.
Upon surrender of a Note that is purchased or 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 unpurchased or unredeemed portion
of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) At any time prior to July 15, 2002, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes issued
under this Indenture at a redemption price of 111% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date, with the net cash proceeds of a public offering of common stock
of the Company or a capital contribution to the Company's common equity made
with the net cash proceeds of an Initial Public Offering; PROVIDED that:
(1) at least 65% of the aggregate principal amount of Notes issued under
the Indenture remains outstanding immediately after the occurrence of
such redemption (excluding Notes held by the Company and its
Subsidiaries); and
(2) the redemption must occur within 45 days of the date of the closing of
such public offering or the making of such capital contribution.
Except as set forth in this clause (a), the Notes shall not be
redeemable at the Company's option prior to July 15, 2003.
(b) After July 15, 2003, the Company may redeem all or a part of the Notes
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal
35
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon, to the applicable redemption date, if redeemed during the
twelve-month period beginning on July 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003................................................. 105.500%
2004 103.667%
2005................................................. 101.833%
2006 and thereafter.................................. 100.000%
(c) Any 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.
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;
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(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
(or transferred by book entry) 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 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.
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The Company shall pay or cause to be paid the principal of, premium
and Liquidated Damages, 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 and
Liquidated Damages, if any, (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.
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 (a) furnish to the Trustee
and to all Holders of Notes 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 on the annual financial
statements by the Company's certified independent accountants and (b) 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, in each case
within the time periods specified in the Commission's rules and regulations
(unless the SEC will not accept such a filing) and file such information with
the Trustee and make such information available to investors who request it in
writing. In addition, for so long as any Notes remain outstanding, the Company
and the Guarantors will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the
38
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. 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).
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraphs shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
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 have 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, have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company, its Subsidiaries 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.
SECTION 4.05 TAXES.
39
The Company shall pay, and shall cause each of its 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 Restricted
Subsidiaries to, directly or indirectly (a) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
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 Restricted Subsidiary of the Company that is a Guarantor); (b)
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company or any Restricted Subsidiary or other Affiliate of the Company
(other than any such Equity Interests owned by the Company or any Wholly Owned
Restricted Subsidiary of the Company that is a Guarantor); (c) purchase, redeem
or otherwise acquire or retire for value any Indebtedness that is subordinated
to the Notes or the Note Guarantees, except a payment of interest or principal
at the Stated Maturity (other than intercompany Indebtedness between or among
the Company and any of its Wholly Owned Restricted Subsidiaries that is a
Guarantor); (d) directly or indirectly make any loan or advance to, or make any
other payment to, Holding; or (e) make any Restricted Investment (all such
payments and other actions set forth in clauses (a) through (e) above being
collectively referred to as "Restricted Payments"), unless, at the time of such
Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(2) 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
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (b), (c), (e), (f) and (g) of the next
succeeding paragraph), is less than the sum, without duplication, of
(A) 50% 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
40
the first fiscal quarter commencing after the date of this Indenture
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, less 100% of such deficit); plus (B) 100% of the aggregate
net cash proceeds received by the Company since the date of this
Indenture as a contribution to its common equity capital or from the
issue or sale of Equity Interests of the Company (other than
Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged
for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the
Company); plus (C) to the extent that any Restricted Investment that
was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the cash
return of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (ii) the initial amount of such
Restricted Investment.
The preceding provisions shall not prohibit (a) 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; (b) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any Guarantor or
of any Equity Interests of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of other Equity Interests of the Company (other than
Disqualified Stock); PROVIDED that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (3) (B) of the preceding
paragraph; (c) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company or any Guarantor in a Permitted
Refinancing; (d) a Restricted Payment to Holding pursuant to the Tax Sharing
Agreement as the same may be amended from time to time in a manner that is not
materially adverse to the Company; (e) 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, in an aggregate amount not to exceed $500,000 in any
fiscal year; (f) a Restricted Payment to Holding to pay management fees in an
aggregate amount not to exceed $750,000 in any fiscal year of the Company; (g)
the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its common Equity Interests on a pro rata basis; (h) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of Holding from any current or former employee of Holding, the Company or any
Subsidiary of the Company; PROVIDED, HOWEVER, that (1) the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $1.0 million in any fiscal year, net of cash proceeds received from
the sale of Equity Interests to employees and (2) no Default or Event of Default
shall have occurred and be continuing immediately after such transaction; (i)
Investments by the Company in joint ventures or similar projects in a business
similar to that conducted by the Company and its Restricted Subsidiaries on the
date of this Indenture in an aggregate amount not to exceed $5.0 million; (j) a
Restricted Payment to Holding to pay cash interest payments on Holding's 12 1/2%
Senior Secured Notes dUE 2006 and on any Refinancing Indebtedness incurred to
refund, refinance or replace Holding's 12 1/2% Senior Secured Notes due 2006 in
a Permitted Refinancing; and (k) other RestrictED Payments in an aggregate
amount not to exceed $5.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued to or
41
by the Company or its Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any assets or securities that are
required to be valued by this Section 4.07 shall be determined by the Board of
Directors whose resolution with respect thereto shall be delivered to the
Trustee if the fair market value exceeds $1.0 million. The Board of Directors'
determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $5.0 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 4.07 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 Restricted
Subsidiaries to, directly or indirectly, create or cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or any of its Restricted Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries; (b) make
loans or advances to the Company or any of its Restricted Subsidiaries; or (c)
transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances
or restrictions existing under or by reasons of (a) Existing Indebtedness as in
effect on the date of this Indenture 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 such Existing Indebtedness, as in
effect on the date of this Indenture; (b) the 1994 Indenture, the 1994 Notes and
the guarantees thereof, the 1998 Indenture and the 1998 Notes and the guarantees
thereof; (c) this Indenture, the Notes and the Note Guarantees; (d) applicable
law; (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted 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; (f) customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices; (g) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions on
the property so acquired of the nature described in clause (c) of the preceding
paragraph; and (h) Refinancing Indebtedness that is a Permitted Refinancing,
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, guarantee or otherwise
become directly or indirectly liable with respect to (collectively, "incur" and
correlatively, an "incurrence" of) any Indebtedness (including
42
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 and its Subsidiaries may incur Indebtedness (including Acquired
Debt) or issue 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 2.25 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom and including the pro forma
earnings of any business acquired by the Company or any of its Subsidiaries with
the proceeds therefrom), as if the additional Indebtedness had been incurred or
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The first paragraph of this Section 4.09 shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(a) the incurrence by the Company and its Restricted Subsidiaries of term
Indebtedness, revolving credit Indebtedness and letters of credit under the
Credit Facility in an aggregate principal amount at any one time
outstanding under this clause (a) not to exceed the greater of
(i) $150.0 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 Net Proceeds
of Asset Sales that have been applied by the Company or any of its
Restricted Subsidiaries since the date of this Indenture to repay any term
Indebtedness under a Credit Facility pursuant to Section 4.10 hereof, and
(ii) the Borrowing Base;
(b) the incurrence by the Company and its Restricted Subsidiaries of the
Existing Indebtedness;
(c) the incurrence by the Company and the Guarantors of Indebtedness
represented by the Notes and the related Note Guarantees to be issued on
the date of this Indenture and the New Notes and the related Note
Guarantees to be issued pursuant to the Registration Rights Agreement;
(d) the incurrence by the Company or any Restricted Subsidiary of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of financing all
or any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company or such
Restricted Subsidiary, in an aggregate principal amount, including all
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (d) in a Permitted
Refinancing, not to exceed $10.0 million at any time outstanding;
(e) the incurrence by the Company or any of its Restricted Subsidiaries of
Refinancing Indebtedness; provided, however, that such Refinancing
Indebtedness is a Permitted Refinancing;
(f) the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Restricted Subsidiaries that is a Guarantor; PROVIDED,
HOWEVER, that
(iii) if the Company or any Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all
43
Obligations with respect to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Guarantor; and
(iv) (A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary thereof and (B) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary that is a Guarantor
thereof; shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may
be, that was not permitted by this clause (f);
(g) the incurrence by the Company of Indebtedness between the Company and
Holding; PROVIDED that the advances evidenced by such Indebtedness are
permitted under the covenant described above under Section 4.07 hereof;
(h) the incurrence by the Company or any of its Restricted Subsidiaries of
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;
(i) the guarantee by the Company or any of the Guarantors of Indebtedness of
the Company or a Restricted Subsidiary of the Company that was permitted to
be incurred by another provision of this Section 4.09;
(j) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse
Debt; PROVIDED, HOWEVER, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed
to constitute an incurrence of Indebtedness by a Restricted Subsidiary of
the Company that was not permitted by this clause (j);
(k) the accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends
on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock shall not be deemed to be an incurrence of Indebtedness
or an issuance of Disqualified Stock for purposes of this covenant;
PROVIDED, in each such case, that the amount thereof is included in Fixed
Charges of the Company as accrued; and
(l) the incurrence by the Company or its Restricted Subsidiaries of
Indebtedness (in addition to Indebtedness permitted by any other clause of
this paragraph) in an aggregate principal amount, including all Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (l) in a Permitted Refinancing, not to
exceed the sum of $25.0 million at any time outstanding.
Notwithstanding anything to the contrary, the Company shall not
incur any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company unless
such Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially identical terms; PROVIDED, HOWEVER, that no Indebtedness
of the Company shall be deemed to be contractually subordinated in right of
payment to any other Indebtedness of the Company solely by virtue of being
unsecured.
For purposes of determining compliance with this Section 4.09, in
the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt
44
described in clauses (a) through (l) above, or is entitled to be incurred
pursuant to the first paragraph of this covenant, the Company shall be permitted
to classify such item of Indebtedness on the date of its incurrence, or later
reclassify all or a portion of such item of Indebtedness, in any manner that
complies with this covenant.
SECTION 4.10 ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, conduct an Asset Sale unless (a) the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets sold or otherwise
disposed of; (b) such fair market value is determined by the Company's Board of
Directors and 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 $2.0 million; and (c) at least
75% of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash. For purposes of this provision, each of the
following shall be deemed to be cash (i) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto), of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by the transferee of any such assets; and (ii) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received).
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, make a capital
expenditure or acquire other long-term tangible assets, in each case, in the
same or a similar line of business as the Company or any Restricted Subsidiary
was engaged in on the date of this Indenture. 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 preceding paragraph shall constitute "Excess
Proceeds." If the aggregate amount of Excess Proceeds exceeds $5.0 million, upon
completion of the Asset Sale Offers required under the 1994 Indenture and the
1998 Indenture, the Company shall make an Asset Sale Offer to all Holders of
Notes and all holders of other Indebtedness that is PARI PASSU with the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount of Notes and such other PARI PASSU Indebtedness,
that is in an integral multiple of $1,000, that may be purchased out of the
Excess Proceeds, if any, remaining upon completion of the Asset Sale Offers
required under the 1994 Indenture and the 1998 Indenture. The offer price in any
Asset Sale Offer shall be equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and shall be payable in cash. If the aggregate amount of Notes and
such other PARI PASSU Indebtedness 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 and such other
PARI PASSU Indebtedness surrendered by Holders into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other PARI PASSU Indebtedness to be purchased in the manner described in
Section 3.02 hereof. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset to zero.
45
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 each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
conflict.
SECTION 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
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, an "Affiliate Transaction"), unless (a)
such Affiliate Transaction is on terms that are no less favorable to the Company
or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted 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 $2.0 million, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
this Section 4.11 and that such Affiliate Transaction is approved by a majority
of the Board of Directors; and (ii) with respect to any Affiliate Transaction
involving aggregate payments in excess of $5.0 million, an opinion as to the
fairness to the Holders from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, shall not be subject to the provisions of the prior paragraph:
(a) any employment agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary; (b) transactions
between or among Holding, the Company and/or its Restricted Subsidiaries; (c)
payment of reasonable directors fees to Persons who are not otherwise Affiliates
of the Company; (d) Restricted Payments that are permitted by Section 4.07
hereof; and (e) the payment of annual fees and expenses to First Atlantic
PROVIDED that such payment is permitted by Section 4.07 hereof.
SECTION 4.12 LIENS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly create, incur, assume or suffer to exist any Lien of
any kind securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, except Permitted Liens.
SECTION 4.13 ADDITIONAL NOTE GUARANTEES.
If the Company or any of its Subsidiaries transfers or causes 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 by Section 4.07 hereof; any assets, businesses, divisions, real
property or equipment having a book value in excess of $1.0 million to any
Subsidiary that is not a Guarantor or if the Company or any of its Subsidiaries
shall acquire another Domestic Restricted Subsidiary having (a) total assets
with a book value in excess of $1.0 million or (b) Consolidated Cash Flow in
excess of $1.0 million, then such transferee or acquired Subsidiary (if other
than a Subsidiary that has been properly designated as an Unrestricted
Subsidiary in accordance with the terms of this Indenture) shall execute a Note
Guarantee and deliver an Opinion of Counsel as to the enforceability of such
46
Note Guarantee, in accordance with the terms of this Indenture.
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 (a) 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 (b) 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.
(a) Upon the occurrence of a Change of Control, each Holder of Notes shall have
the right to require the Company to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of that 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 of Notes repurchased plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the date of
purchase. Within 10 days following any Change of Control, the Company shall 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 shall be accepted
for payment; (ii) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 60 days from the date the notice is mailed
(the "CHANGE OF CONTROL PAYMENT DATE"); (iii) that any Note not tendered shall
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 shall 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 shall 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 shall 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
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
shall be issued new Notes equal 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-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 the Notes in connection with a Change of Control. To the extent
that the provisions of any securities laws or regulations conflict with the
Change of Control provisions of this Indenture, the Company shall comply with
the applicable securities laws and
47
regulations and shall not be deemed to have breached its obligations under the
Change of Control provisions of this Indenture by virtue of such conflict.
(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 aggregate principal
amount of 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 (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; PROVIDED that each such new Note will 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.
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 of the Company and senior in any
respect in right of payment to the Notes. 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.
SECTION 4.17 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an
Investment made as of the time of such designation and shall reduce the amount
available for Restricted Payments under the first paragraph of Section 4.07
hereof or Permitted Investments, as applicable. That designation shall only be
permitted if such Restricted Payment would be permitted at that time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default.
Upon the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or
the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Company shall notify the Trustee.
48
ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company shall not (a) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation); or (b) sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company and its Subsidiaries taken as a
whole, in one or more related transactions, to another Person; unless (i) the
Company is the surviving corporation; or the 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 the
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 agreements reasonably satisfactory to the Trustee, under the Notes,
this Indenture and the Registration Rights Agreement; (iii) immediately after
such transaction no Default or Event of Default exists; and (iv) the 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 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 the first paragraph of 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," 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.
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An "Event of Default" occurs if:
(a) the Company or the Guarantors default in the payment when due of
interest or Liquidated Damages, 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) 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;
(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 of
at least 25% in principal amount of the Notes (including Additional Notes, if
any) 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 date of the Indenture, 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 $2.0
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 $2.0 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,
50
(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;
(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, Holding 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
(including Additional Notes, if any) may declare all the Notes to be due and
payable immediately; PROVIDED, HOWEVER, that if any Indebtedness is outstanding
pursuant to the 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 Credit Facility or (ii) the date of
acceleration of the Indebtedness under the 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 not less than a majority in aggregate
principal amount of the then outstanding Notes (including Additional Notes, if
any) by written notice to the Trustee may on behalf of all of the Holders 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, premium or Liquidated Damages that has become due solely
because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after July 15, 2003 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 July 15, 2003
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 July 15 of the years
set forth below, as set forth below
51
(expressed as a percentage of the principal amount of the Notes on the date of
payment that would otherwise be due but for the provisions of this Indenture):
YEAR PERCENTAGE
1999 . . . . . . . . . . . . . . . . . 112.932%
2000 . . . . . . . . . . . . . . . . . 111.099%
2001 . . . . . . . . . . . . . . . . . 109.166%
2002 . . . . . . . . . . . . . . . . . 107.333%
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 and
Liquidated Damages, 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 (including Additional Notes, if any) 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
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continuing Default or Event of Default in the payment of the principal of,
premium and Liquidated Damages, if any, or interest on, any Note held by a
non-consenting Holder (including in connection with an offer to purchase)
(PROVIDED, HOWEVER, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes (including Additional Notes, if any) 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 not less than a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) 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 (including Additional Notes, if any) 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 (including Additional Notes, if any) 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 and Liquidated
Damages, 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.
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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 for the whole amount of
principal of, premium and Liquidated Damages, 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 claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that 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 and Liquidated Damages, 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 and Liquidated Damages, if any, and
interest, respectively; and
54
FOURTH: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by 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 (including Additional Notes, if
any) .
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 person would
exercise or use under the circumstances in the conduct of his or her 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 7.01;
(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
55
(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 7.01.
(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.
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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 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 and
Liquidated Damages, 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 BY TRUSTEE TO HOLDERS OF THE 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.
313(b)(2). The Trustee shall also 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.
57
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 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 7.07, 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 (including Additional
Notes, if any) 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;
58
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes (including
Additional Notes, if any) 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 (including Additional Notes, if any) 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).
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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.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
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 the
outstanding Notes and the Note Guarantees 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 their 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 and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
and the Note Guarantees, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and other Sections of this
Indenture referred to in (a) and (b) 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 and Liquidated Damages, if any, and interest on such
Notes when such payments are due, (b) 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 their 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 and the Note
Guarantees 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,
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Covenant Defeasance means that, with respect to the outstanding Notes, the
Company and the Guarantors may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. 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) 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 U.S. 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 and Liquidated Damages, 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, interest or Liquidated Damages, if any, 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 (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) 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
either: (i) 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 (ii) 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;
61
(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;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that, assuming no intervening bankruptcy of the Company or any
Guarantor between the date of deposit and the day on which all applicable
preferences have run and assuming that no Holder is an "insider" of the Company
under applicable bankruptcy law, after the day on which all applicable
preferences 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 of Notes over the other creditors of the Company or
the Guarantors or with the intent of defeating, hindering, delaying or
defrauding 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 and
Liquidated Damages, 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.
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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 or
Liquidated Damages, if any, or interest, if any, on any Note and remaining
unclaimed for two years after such principal, premium or Liquidated Damages, 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 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 or Liquidated
Damages, 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 for 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 Notes;
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(e) to provide for the issuance of Additional Notes in accordance with the
provisions set forth herein; or
(f) 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 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 (including Additional Notes, if any) then outstanding (including
consents obtained in connection with a tender offer or exchange offer for
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 Additional Notes, if any) voting as a single class
(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 (including Additional Notes,
if any) 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 of Notes):
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(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, interest or Liquidated Damages, if any, on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including Additional
Notes, if any) 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 or Liquidated Damages, 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.
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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.
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 Restricted 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: (a) the principal of, interest and Liquidated Damages, if any,
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 (b) 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
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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 "BENEFITED PARTY") to proceed against the
Company or any other Person or to proceed against or exhaust any security held
by a Benefited Party at any time or to pursue any other remedy in any Benefited
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 disability of any other Person or the failure of a Benefited
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
Benefited 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
Benefited 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 Benefited Party's election, in any proceeding
instituted under the Federal Bankruptcy Code, of the application of Section
111l(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, (a) 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 (b) 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
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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.
SECTION 10.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of any Guarantor 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 (except that Holders of Notes may receive and retain
Permitted Junior Securities and payments from the trust described in
Article Eight hereof); 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 upon the proper written request of the holders
of Senior Indebtedness of such Guarantor, to holders of Senior Indebtedness
of such Guarantor or their proper Representative.
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 Permitted Junior
Securities and payments from the trust described in Article Eight hereof) until
all principal and other Obligations with respect to the Senior Indebtedness of
such Guarantor have been paid in full if:
(a) a default in the payment when due, whether upon acceleration or
otherwise, of the principal, premium, if any, or interest on any Senior
Indebtedness of such Guarantor occurs and is continuing; or
(b) any other default on any series or 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(b) (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:
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(a) in the case of a payment default as described in (i) above, upon the
date on which such default is cured or waived, and
(b) 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 10.07 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 IMPAIRED 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.
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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
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 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 relative to 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 LIABILITY.
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 Guarantee. 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
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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.
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 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 sell or otherwise dispose of all or substantially
all of its assets to, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person), another Person, other than the Company
or another 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, the person acquiring the property in such sale or disposition or the
Person formed by or surviving any such consolidation or merger will, 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. 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 OF NOTE GUARANTEE.
The Note Guarantee of a Guarantor shall be released: (a) in
connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor (other than Holding), by way of merger, consolidation
or otherwise, to a Person that is not (either before or after giving effect to
such transaction) a Subsidiary of the Company, if the Company applies the Net
Proceeds of that sale or other disposition in accordance with Section 3.09 and
4.10 hereof; (b) in connection with the sale or other disposition of all of the
Capital Stock of any Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Subsidiary of the Company, if the Company
applies the Net Proceeds
72
of that sale or other disposition in accordance with Section 3.09 and 4.10
hereof; or (c) if the Company properly designates any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary in accordance with Section 4.17
hereof.
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 was an allowed claim)
before the Holders shall be entitled to receive any payment with
respect to the Notes (except that Holders of Notes may receive
and retain Permitted Junior Securities and payments made from the
trust described in Article Eight hereof); 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; upon the proper
written request of the holders of Senior Indebtedness of the
Company, to holders of Senior Indebtedness of the Company or
their proper Representative (except that Holders of Notes may
receive and retain Permitted Junior Securities and payments made
from the trust described in Article Eight hereof).
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
73
Trustee or any Holder any Notes for cash or property (other than Permitted
Junior Securities and payments from the trust described in Article Eight hereof)
until all principal and other Obligations with respect to the Senior
Indebtedness of the Company have been paid in full if:
(a) a default in the payment when due, whether upon acceleration or
otherwise, of the principal, premium, if any, or interest on any Senior
Indebtedness of the Company occurs and is continuing; or
(b) any other default on any series of 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(b) (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:
(a) in the case of a payment default as described in (i) above, upon the
date on which such default is cured or waived, and
(b) 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 actual knowledge 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
74
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 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
75
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.
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
76
Company are hereby authorized to file an appropriate claim for and on behalf of
the Holders of the Notes.
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, LLP
30 Rockefeller Plaza
New York, New York 10112
Telecopier No.: (212) 408-2420
Attention: Michael Joseph O'Brien, 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
77
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
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 OPINION 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 OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(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;
78
(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
(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 CONSENT TO JURISDICTION.
To the fullest extent permitted by applicable law, each of the
parties hereto hereby irrevocably submits to the jurisdiction of any New York
State court or Federal court sitting in the borough of Manhattan in New York
City in respect of any suit, action or proceeding arising out of or relating to
the provisions of this Indenture and irrevocably agrees that all claims in
respect of any such suit, action or proceeding may be heard and determined in
any such court. Each of the parties hereto waive, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in any such
court, and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 12.11 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.
79
SECTION 12.12 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 12.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14 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]
80
SIGNATURES
Dated as of July 6, 1999
BERRY PLASTICS CORPORATION
By: _____________________________________
Name:
Title:
BPC HOLDING CORPORATION
By: _____________________________________
Name:
Title:
BERRY PLASTICS ACQUISITION CORPORATION
By: _____________________________________
Name:
Title:
BERRY IOWA CORPORATION
By: _____________________________________
Name:
Title:
BERRY STERLING CORPORATION
By: _____________________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By: _____________________________________
Name:
Title:
AEROCON, INC.
By: _____________________________________
Name:
Title:
PACKERWARE CORPORATION, a Kansas
corporation
By: _____________________________________
Name:
Title:
PACKERWARE CORPORATION, a Delaware
corporation
By: _____________________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By: _____________________________________
Name:
Title:
VENTURE PACKAGING, INC.
By: _____________________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC., an Ohio
corporation
By: _____________________________________
Name:
Title:
2
VENTURE PACKAGING MIDWEST, INC., a
Delaware corporation
By: _____________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC., a
South Carolina corporation
By: _____________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC., a
Delaware corporation
By: _____________________________________
Name:
Title:
NIM HOLDINGS LIMITED
By: _____________________________________
Name:
Title:
3
NORWICH INJECTION MOULDERS LIMITED
By: _____________________________________
Name:
Title:
NORWICH ACQUISITION LIMITED
By: _____________________________________
Name:
Title:
KNIGHT PLASTICS, INC.
By: _____________________________________
Name:
Title:
CPI HOLDING CORPORATION
By: _____________________________________
Name:
Title:
CARDINAL PACKAGING, INC.
By: _____________________________________
Name:
Title:
4
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
By: ______________________________________
Name:
Title:
Dated as of July 6, 1999
5
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT A-1
(Face of Note)
CUSIP
11% Series A Senior Subordinated Notes due 2007
No.1 $75,000,000
BERRY PLASTICS CORPORATION
promises to pay to CEDE & CO. or registered assigns,
the principal sum of Seventy Five Million Dollars ($75,000,000)
on July 15, 2007.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
A-1-1
Dated: July 6, 1999
BERRY PLASTICS CORPORATION
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
(SEAL)
A-1-2
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
A-1-3
(Back of Security)
11% SERIES A SENIOR SUBORDINATED NOTE DUE 2007
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY MAY NOT BE
OFFERED, SOLD PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL INVESTOR" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A) (1), (2), (3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT (AN
"IAI"); (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO BERRY PLASTICS CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
A-1-4
1. INTEREST. Berry Plastics Corporation, a Delaware corporation
(the "Company"), 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 11% from January 15, 2000 until maturity and
shall pay the Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreements referred to below. The Company will pay interest
and Liquidated Damages semi-annually on January 15 and July 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"). The first Interest
Payment Date shall be January 15, 2000.
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.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages 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 Company will pay
principal, interest and Liquidated Damages 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, interest and Liquidated
Damages 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 July 6, 1999 (the "Indenture") among the Company, the guarantors named
therein (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 unlimited in aggregate principal amount.
5. OPTIONAL REDEMPTION. On or after July 15, 2003, 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 and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve month period beginning
on July 15 of the years indicated below:
YEAR PERCENTAGE
2003 105.500%
2004 103.667%
2005 101.833%
2006 and thereafter 100.000%
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6. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
7. REDEMPTION OR REPURCHASE 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 and Liquidated Damages, 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, upon completion of the Asset Sale Offers required under the
1994 Indenture and the 1998 Indenture, the Company shall be required to make an
offer to all Holders of Notes and all holders of other Indebtedness that is PARI
PASSU with the Notes containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes (including any
Additional Notes) and such other PARI PASSU Indebtedness that may be purchased
out of the Excess Proceeds if any, remaining upon completion of the Asset Sale
Offers required under the 1994 Indenture and the 1998 Indenture at 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase. If the aggregate principal amount of
Notes and such other PARI PASSU Indebtedness surrendered by Holders into such
Asset Sale Offer 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 (including any Additional
Notes) and such other PARI PASSU Indebtedness 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 by
first class mail at least 30 days but not more than 60 days before the purchase
or redemption date to each Holder of Notes to be purchased or redeemed at its
registered address. Notes may be purchased or redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
purchased or redeemed. On and after the purchase or redemption date, interest
ceases to accrue on Notes or portions of them called for purchase or 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
A-1-6
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 purchase or redemption. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be purchased or 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 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, SUPPLEMENTS AND WAIVERS. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) (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 at least a majority in
principal amount of the then outstanding Notes (including Additional Notes, if
any) (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 sale of all or substantially
all of the Company's assets, 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 legal rights under the Indenture of any Holder, to provide
for the issuance of Additional Notes in accordance with the provisions of 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 or Liquidated
Damages, 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) 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 notice to the Company by the Trustee or
the Holders of at least 25% in principal amount of the Notes (including
Additional Notes, if any) 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 date of the
Indenture, 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
A-1-7
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 $2.0 million or more; 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 $2.0
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
(including Additional Notes, if any) may declare all the Notes to be due and
payable immediately; PROVIDED, HOWEVER, that if any Indebtedness is outstanding
pursuant to the 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 Credit Facility or (2) the date of acceleration
of the Indebtedness under the 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, Holding or any of their respective 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 (including Additional Notes,
if any) 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).
A-1-8
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 CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
A-1-9
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Request may be made to:
Berry Plastics Corporation
101 Oakley Street
P.O. Box 959
Evansville, Indiana 47710-0959
Attention: Chief Financial Officer
A-1-10
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 ID. 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-1-11
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 the Note)
Tax Identification No.: _________________________
Signature Guarantee.
A-1-12
SCHEDULE OF EXCHANGES OF GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note, or of other Restricted Global Notes for an
interest in this Global Note, have been made:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Principal of this authorized
Amount Amount Global Note officer of
of of following such Trustee or
DATE OF THIS GLOBAL THIS GLOBAL decrease Note
EXCHANGE NOTE NOTE (OR INCREASE) CUSTODIAN
A-1-13
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
CUSIP
11% Series A Senior Subordinated Notes due 2007
No.1 $
BERRY PLASTICS CORPORATION
promises to pay to CEDE & CO. or registered assigns,
the principal sum of _______________ ($___________)
on July 15, 2007.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
A-2-1
Dated: July 6, 1999
BERRY PLASTICS CORPORATION
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
(SEAL)
B-4
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
B-4
(Back of Regulation S Temporary Global Note)
11% SERIES A SENIOR SUBORDINATED NOTE DUE 2007
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY MAY NOT BE
OFFERED, SOLD PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL INVESTOR" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A) (1), (2), (3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT (AN
"IAI"); (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO BERRY PLASTICS CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND
B-4
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
21. INTEREST. Berry Plastics Corporation, a Delaware corporation
(the "Company"), 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 11% from January 15, 2000 until maturity and
shall pay the Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreements referred to below. The Company will pay interest
and Liquidated Damages semi-annually on January 15 and July 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"). The first Interest
Payment Date shall be January 15, 2000.
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.
Until this Regulation S Temporary Global Note is exchanged for one
or more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Senior Subordinated Notes under the Indenture.
22. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages 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 Company will pay
principal, interest and Liquidated Damages 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, interest and Liquidated
Damages by check payable in such money. It may mail an interest check to a
Holder's registered address.
23. 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.
24. INDENTURE. The Company issued the Notes under an Indenture dated
as of July 6, 1999 (the "Indenture") among the Company, the guarantors named
therein (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 unlimited in aggregate principal amount.
B-4
25. OPTIONAL REDEMPTION. On or after July 15, 2003, 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 and Liquidated Damages, if any, thereon,
to the applicable redemption date, if redeemed during the twelve month period
beginning on July 15 of the years indicated below:
YEAR PERCENTAGE
2003 105.500%
2004 103.667%
2005 101.833%
2006 and thereafter 100.000%
26. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
27. REDEMPTION OR REPURCHASE 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 and Liquidated Damages, 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, upon completion of the Asset Sale Offers required under the
1994 Indenture and the 1998 Indenture, the Company shall be required to make an
offer to all Holders of Notes and all holders of other Indebtedness that is PARI
PASSU with the Notes containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes (including any
Additional Notes) and such other PARI PASSU Indebtedness that may be purchased
out of the Excess Proceeds if any, remaining upon completion of the Asset Sale
Offers required under the 1994 Indenture and the 1998 Indenture at 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase. If the aggregate principal amount of
Notes and such other PARI PASSU Indebtedness surrendered by Holders into such
Asset Sale Offer 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 (including any Additional
Notes) and such other PARI PASSU Indebtedness 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.
28. NOTICE OF REDEMPTION. Notice of redemption shall be mailed by
first class mail at least 30 days but not more than 60 days before the purchase
or redemption date to each Holder of Notes to be purchased or redeemed at its
registered address. Notes may be purchased or redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
purchased or redeemed. On and after the purchase or redemption date, interest
ceases to accrue on Notes or portions of them called for purchase or redemption.
B-4
29. 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.
30. 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.
31. 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 purchase or redemption. Also, it need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of Notes to
be purchased or redeemed, during the period between a record date and the
corresponding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Global Notes only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Article 2 of the Indenture. Upon exchange of this Regulation S Temporary
Global Note for one or more Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
32. 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 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.
33. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) (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 at least a majority in
principal amount of the then outstanding Notes (including Additional Notes, if
any) (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 sale of all or substantially
all of the Company's assets, 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 legal rights under the Indenture of any Holder, to provide
for the issuance of
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Additional Notes in accordance with the provisions of 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.
34. DEFAULTS AND REMEDIES. Events of Default include: default by the
Company or the Guarantors in the payment when due of interest or Liquidated
Damages, 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) 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 notice to the Company by the Trustee or
the Holders of at least 25% in principal amount of the Notes (including
Additional Notes, if any) 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 date of the
Indenture, 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
$2.0 million or more; 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 $2.0 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 (including Additional Notes, if
any) may declare all the Notes to be due and payable immediately; PROVIDED,
HOWEVER, that if any Indebtedness is outstanding pursuant to the 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 Credit Facility or (2) the date of acceleration of the Indebtedness under
the 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,
Holding or any of their respective 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 (including Additional Notes, if any) 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.
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35. 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.
36. 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.
37. AUTHENTICATION. Neither this Note nor any Note Guarantee shall
be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
38. 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).
39. 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.
40. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
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The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Request may be made to:
Berry Plastics Corporation
101 Oakley Street
P.O. Box 959
Evansville, Indiana 47710-0959
Attention: Chief Financial Officer
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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 ID. 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.
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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 the Note)
Tax Identification No.: _________________________
Signature Guarantee.
________________________________________________________________________________
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SCHEDULE OF EXCHANGES OF GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary
Global Note for an interest in another Global Note, or of other Restricted
Global Notes for an interest in this Regulation S Temporary Global Note, have
been made:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Principal of this authorized
Amount Amount Global Note officer of
of of following such Trustee or
DATE OF THIS GLOBAL THIS GLOBAL decrease Note
EXCHANGE NOTE NOTE (OR INCREASE) CUSTODIAN
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FORM OF CERTIFICATE OF TRANSFER
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: % Senior Subordinated Notes due 2007
Reference is hereby made to the Indenture, dated as of July 6, 1999
(the "INDENTURE"), among Berry Plastics Corporation, as issuer (the "COMPANY"),
the Guarantors named therein and UNITED STATES TRUST COMPANY OF NEW YORK, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________, (the "TRANSFEROR") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of
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Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor hereby further certifies that it has not engaged in
any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Definitive Notes and in the Indenture and the Securities Act.
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4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE
NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By: ______________________________________
Name:
__________________________ Title:
Dated:
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ___________ ), or
(ii) [ ] Regulation S Global Note (CUSIP __________ ), or
(iii) [ ] IAI Global Note (CUSIP __________ ); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP __________ ), or
(ii) [ ] Regulation S Global Note (CUSIP __________ ), or
(iii) [ ] IAI Global Note (CUSIP __________ ); or
(iv) [ ] Unrestricted Global Note (CUSIP __________ ); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: 11% Senior Subordinated Notes due 2007
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of July 6, 1999
(the "INDENTURE"), among Berry Plastics Corporation, as issuer (the "COMPANY"),
the Guarantors named therein and [UNITED STATES TRUST COMPANY OF NEW YORK], as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________, (the "OWNER") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "EXCHANGE").
In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "SECURITIES ACT"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
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(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] |_| 144A Global Note, |_| Regulation S Global Note, |_| IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_____________________________________
[Insert Name of Transferor]
By: _____________________________________
Name:
Title:
Dated: _____________________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: 11% Senior Subordinated Notes due 2007
Reference is hereby made to the Indenture, dated as of July 6, 1999
(the "INDENTURE"), among Berry Plastics Corporation, as issuer (the "COMPANY"),
the Guarantors named therein and United States Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________________
[Insert Name of Accredited Investor]
By: _____________________________________
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
NOTE GUARANTEE
Each of the Guarantors and each Restricted 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, interest and Liquidated Damages,
if any, 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.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
BPC HOLDING CORPORATION
By: _____________________________________
Name:
Title:
BERRY PLASTICS ACQUISITION CORPORATION
By: _____________________________________
Name:
Title:
BERRY IOWA CORPORATION
By: _____________________________________
Name:
Title:
BERRY STERLING CORPORATION
By: _____________________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By: _____________________________________
Name:
Title:
E-2
AEROCON, INC.
By: _____________________________________
Name:
Title:
PACKERWARE CORPORATION, a Kansas
corporation
By: _____________________________________
Name:
Title:
PACKERWARE CORPORATION, a Delaware
corporation
By: _____________________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By: _____________________________________
Name:
Title:
VENTURE PACKAGING, INC.
By: _____________________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC., an
Ohio corporation
By: _____________________________________
Name:
Title:
E-3
VENTURE PACKAGING MIDWEST, INC., a
Delaware corporation
By: _____________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC., a
South Carolina corporation
By: _____________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC., a
Delaware corporation
By: _____________________________________
Name:
Title:
NIM HOLDINGS LIMITED
By: _____________________________________
Name:
Title:
NORWICH INJECTION MOULDERS LIMITED
By: _____________________________________
Name:
Title:
NORWICH ACQUISITION LIMITED
By: _____________________________________
Name:
Title:
E-4
KNIGHT PLASTICS, INC.
By: _____________________________________
Name:
Title:
CPI HOLDING CORPORATION
By: _____________________________________
Name:
Title:
CARDINAL PACKAGING, INC.
By: _____________________________________
Name:
Title:
E-5