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AMERICOLD CORPORATION,
as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
____________________________
INDENTURE
Dated as of June 30, 1995
____________________________
15% Senior Subordinated Debentures, Due 2007
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TABLE OF CONTENTS<F1>
Page
ARTICLE ONE Definitions
SECTION 1.01. Definitions
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act
SECTION 1.03. Rules of Construction
ARTICLE TWO Issuance, Description, Executionand Exchange of
Securities
SECTION 2.01. Designation, Amount and Issue of Securities
SECTION 2.02. Authentication and Delivery of Securities
SECTION 2.03. Form of Securities and Trustee's
Certificate of Authentication Generally
SECTION 2.04. Denomination and Date of Securities;
Payment of Principal and Interest
SECTION 2.05. Execution of Securities
SECTION 2.06. Exchange and Registration of Transfer of
Securities
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Securities
SECTION 2.08. Cancellation of Surrendered Securities
SECTION 2.09. Temporary Securities
SECTION 2.10. Foreign Holder Certification
Section 2.11. CUSIP Numbers
ARTICLE THREE Redemption of Securities
SECTION 3.01. Optional Redemption
Section 3.02. Notice of Redemption
SECTION 3.03. Procedures for Redemption
SECTION 3.04. Selection of Securities To Be Redeemed
SECTION 3.05. When Securities Called for Redemption
Become Due and Payable
ARTICLE FOUR Particular Covenants, Representationsand
Warranties of the Issuer
SECTION 4.01. Validity of Securities
SECTION 4.02. Payment of Principal of, and Interest on
Securities
SECTION 4.03. SEC Reports
SECTION 4.04. Limitation on Restricted Payments
SECTION 4.05. Limitation on Senior Subordinated Debt
SECTION 4.06. Limitation on Debt
SECTION 4.07. Limitation on Subsidiary Debt and
Preferred Stock
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<F1> This Table of Contents shall not, for any purpose, be deemed
to be part of the Indenture.
SECTION 4.08. Limitation on Restrictions on Distributions
from Subsidiaries
SECTION 4.09. Limitation on Sales of Assets and
Subsidiary Stock
SECTION 4.10. Limitation on Transactions with Affiliates
SECTION 4.11. Change of Control
SECTION 4.12. Appointment of Agents
SECTION 4.13. Paying Agents to Hold Funds in Trust
SECTION 4.14. Appointment of Trustee by Issuer
SECTION 4.15. Availability of Information
SECTION 4.16. Books of Account; Inspection by the Trustee;
Notices; Statements as to Compliance
Section 4.17 Payment of Taxes and Other Claims
SECTION 4.18 Corporate Existence and Rights
SECTION 4.19. Maintenance of Properties
SECTION 4.20. Maintenance of Insurance
SECTION 4.21. Certificate and Opinion as to Conditions
Precedent
SECTION 4.22. Statements Required in Certificate or
Opinion
SECTION 4.23. Further Instruments and Acts
ARTICLE FIVE Events of Default and Remedies
SECTION 5.01. Events of Default
SECTION 5.02. Acceleration
SECTION 5.03. Other Remedies
SECTION 5.04. Waiver of Past Defaults
SECTION 5.05. Control by Majority
SECTION 5.06. Limitation on Suits
SECTION 5.07. Rights of Holders To Receive Payment
SECTION 5.08. Collection Suit by Trustee
SECTION 5.09. Trustee May File Proofs of Claim
SECTION 5.10. Priorities
SECTION 5.11. Undertaking for Costs
SECTION 5.12. Waiver of Stay or Extension Laws
ARTICLE SIX Discharge of Indenture; Defeasance
SECTION 6.01. Discharge of Liability on Securities;
Defeasance
SECTION 6.02. Conditions to Defeasance
SECTION 6.03. Application of Trust Money
SECTION 6.04. Repayment to Issuer
SECTION 6.05. Indemnity for Government Obligations
SECTION 6.06. Reinstatement
ARTICLE SEVEN Concerning the Trustee
SECTION 7.01. Duties of Trustee
SECTION 7.02. Rights of Trustee
SECTION 7.03. Individual Rights of Trustee
SECTION 7.04. Trustee's Disclaimer
SECTION 7.05. Notice of Defaults
SECTION 7.06. Reports by Trustee to Holders
SECTION 7.07. Compensation and Indemnity
SECTION 7.08. Replacement of Trustee
SECTION 7.09. Successor Trustee by Merger
SECTION 7.10. Eligibility; Disqualification
SECTION 7.11. Preferential Collection of Claims Against
Corporation
ARTICLE EIGHT Amendments, Supplements and Waivers
SECTION 8.01. Without Consent of Holders
SECTION 8.02. With Consent of Holders
SECTION 8.03. Compliance with Trust Indenture Act
SECTION 8.04. Revocation and Effect of Consents
SECTION 8.05. Notation on or Exchange of Securities
SECTION 8.06. Trustee To Sign Amendments
SECTION 8.07. Waiver of Compliance by Holders
ARTICLE NINE Successor Company
SECTION 9.01. When Issuer May Merge or Transfer Assets
ARTICLE TEN Subordination
SECTION 10.01. Agreement To Subordinate
SECTION 10.02. Certain Definitions
SECTION 10.03. Liquidation, Dissolution, Bankruptcy
SECTION 10.04. Default on Superior Debt
SECTION 10.05. Acceleration of Payment of Securities
SECTION 10.06. When Distribution Must Be Paid Over
SECTION 10.07. Subrogation
SECTION 10.08. Relative Rights
SECTION 10.09. Subordination May Not Be Impaired by Issuer
SECTION 10.10 Rights of Trustee and Paying Agent
SECTION 10.11. Distribution or Notice to Representative
SECTION 10.12. Article 10 Not To Prevent Events of
Default or Limit Right to Accelerate
SECTION 10.13. Trust Moneys Not Subordinated
SECTION 10.14. Trustee Entitled To Rely
SECTION 10.15. Trustee to Effectuate Subordination
SECTION 10.16. Trustee Not Charged with Knowledge of
Prohibition
SECTION 10.17. Rights of Trustee as Holder of Superior
Debt
SECTION 10.18. Trustee Not Fiduciary for Holders of
Superior Debt
SECTION 10.19. Article Applying to Paying Agents
SECTION 10.20. Reliance by Holders of Superior Debt on
Subordination Provisions
ARTICLE ELEVEN Miscellaneous Provisions
SECTION 11.01. Trust Indenture Act Controls
SECTION 11.02. Communication by Holders with Other Holders
SECTION 11.03. Notices
SECTION 11.04. When Treasury Securities Disregarded
SECTION 11.05. Rules by Trustee, Paying Agent and
Security Registrar
SECTION 11.06. Legal Holidays
SECTION 11.07. Successors
SECTION 11.08. Multiple Originals
SECTION 11.09. Separability Clause
SECTION 11.10. Governing Law
SECTION 11.11. Table of Contents; Headings
ACKNOWLEDGMENTS
EXHIBIT A - Form of Security
INDENTURE, dated as of June 30, 1995, by and
between AMERICOLD CORPORATION, an Oregon corporation (the
"Issuer"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New
York banking corporation, as Trustee hereunder (the "Trustee").
R E C I T A L S
A. On May 9, 1995, the Issuer filed for protec-
tion under Chapter 11 of Title 11 of the United States Code in
the United States Bankruptcy Court for the District of Oregon.
On June 20, 1995, the United States Bankruptcy Court for the
District of Oregon entered an order confirming the Plan of
Reorganization, dated as of May 9, 1995, of the Issuer in Case
No. 395-33058elp11 (the "Plan"), which provides for the issuance
of the Securities (as hereinafter defined).
B. The Issuer has duly authorized the creation
of an issue of 15% Senior Subordinated Debentures, due 2007 (the
"Securities") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture. All things
necessary to make the Securities, when executed by the Issuer and
authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer, and to make this
Indenture a valid agreement of the Issuer, in accordance with
their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For
and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders,
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in
this Section (except as herein otherwise expressly provided or
unless the context otherwise requires), for all purposes of this
Indenture and of any indenture supplemental hereto, shall have
the respective meanings specified in this Section.
AFFILIATE: The term "Affiliate" means with re-
spect to any Person, (i) any other Person (or group of Persons
acting in concert in respect of such specified Person) which,
directly or indirectly, is in control of, is controlled by or is
under common control with such specified Person or (ii) any other
Person who is a director, executive officer or general partner
(a) of such specified Person, (b) of any Subsidiary of such
specified Person or (c) of any Person described in clause (i)
above. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person, whether
by contract or otherwise; and the terms "control" and
"controlled" have meanings correlative to the foregoing;
PROVIDED, HOWEVER, that a Person shall not be deemed to be an
Affiliate of another Person solely as a result of a warehouse
management contract entered into between such Persons in the
ordinary course of business.
ASSET DISPOSITION: The term "Asset Disposition"
means any sale, lease, transfer or other disposition (or series
of related sales, leases, transfers or dispositions) of shares of
Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the
purposes of this definition as a "disposition") by the Issuer or
any of its Subsidiaries, other than (i) a disposition by a
Subsidiary to the Issuer or by the Issuer or a Subsidiary to a
Wholly Owned Subsidiary, (ii) a disposition of property or assets
at fair market value in the ordinary course of business, (iii) a
disposition of obsolete or worn out assets in the ordinary course
of business, (iv) a disposition subject to and made in accordance
with Section 3.01 of the First Mortgage Bonds Indenture, (v) a
disposition subject to Section 4.04, or (vi) a sale-and-leaseback
transaction pursuant to which either (x) the lease in such sale-
and-leaseback transaction is for a period, including renewal
rights, of not in excess of three years or (y) the Issuer could
incur Attributable Debt subject to Section 4.06.
ATTRIBUTABLE DEBT: The term "Attributable Debt"
in respect of a sale-and-leaseback transaction means, as at the
time of determination, the present value (discounted at the
interest rate borne by the Series B Bonds compounded annually) of
the total obligations of the lessee for rental payments during
the remaining term of the lease included in such arrangement
(including any period for which such lease has been extended).
AVERAGE LIFE: The term "Average Life" means, as
of the date of determination, with respect to any Debt or
Preferred Stock, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal
payment of such Debt or redemption payment on such Preferred
Stock multiplied by the amount of such payment by (ii) the sum of
all such payments.
BANKRUPTCY LAW: The term "Bankruptcy Law" means
Title 11, United States Code, or any similar federal or state law
for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
BOARD OF DIRECTORS: The term "Board of
Directors" means the Board of Directors of the Issuer or any
committee thereof duly authorized to act on behalf of such Board.
BOARD RESOLUTION: The term "Board Resolution"
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors of the Issuer and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
BOND TRUSTEE: The term "Bond Trustee" means the
trustee under the First Mortgage Bonds Indenture.
BUSINESS DAY: The term "Business Day" means each
day which is not a Legal Holiday.
CAPITAL LEASE OBLIGATION: The term "Capital
Lease Obligation" of a Person means any obligation which is re-
quired to be classified and accounted for as a capital lease on
the face of a balance sheet of such Person prepared in accordance
with generally accepted accounting principles; the amount of such
obligation shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles; and the
Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee with-
out payment of a penalty.
CAPITAL STOCK: The term "Capital Stock" means
any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in
(however designated) corporate stock, including any Preferred
Stock.
CASH: The term "Cash" means coin or currency of
the United States government.
CHANGE OF CONTROL: The term "Change of Control"
means the occurrence of any of the following events:
(i) prior to the earlier to occur of (A) the
first public offering (which, for purposes of
this definition, shall mean the sale of shares of
common stock of the relevant entity pursuant to
an effective registration statement under the
Securities Act that covers (together with any
such prior effective registrations) not less than
25% of the outstanding shares of common stock of
such entity on a fully diluted basis after giving
effect to all such registrations) of common stock
of Parent or (B) the first public offering of
common stock of the Issuer, the Permitted Holders
cease to be the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have
beneficial ownership of all shares that any such
Person has the right to acquire, whether such
right is exercisable immediately or only after
the passage of time), directly or indirectly, of
a majority in the aggregate of the total voting
power of the Voting Stock of the Issuer, whether
as a result of issuance of securities of the
Issuer, any merger, consolidation, liquidation or
dissolution of the Issuer, any direct or indirect
transfer of securities by Parent or otherwise
(for purposes of this clause (i) and clause (ii)
below, the Permitted Holders shall be deemed to
beneficially own any Voting Stock of a
corporation (the "specified corporation") held by
any other corporation (the "parent corporation")
so long as the Permitted Holders beneficially own
(as so defined), directly or indirectly, in the
aggregate a majority of the voting power of the
Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in
clause (i) above), directly or indirectly, of
more than 30% of the total voting power of the
Voting Stock of the Issuer; PROVIDED, HOWEVER,
that the Permitted Holders beneficially own (as
so defined), directly or indirectly, in the
aggregate a lesser percentage of the total voting
power of the Voting Stock of the Issuer than such
other Person and do not have the right or ability
by voting power, contract or otherwise to elect
or designate for election a majority of the Board
of Directors of the Issuer (for the purposes of
this clause (ii), such other Person shall be
deemed to beneficially own any Voting Stock of a
specified corporation held by a parent
corporation, if such other Person "beneficially
owns" (as so defined), directly or indirectly,
more than 30% of the voting power of the Voting
Stock of such parent corporation and the
Permitted Holders "beneficially own" (as so
defined), directly or indirectly, in the
aggregate a lesser percentage of the voting power
of the Voting Stock of such parent corporation
and do not have the right or ability by voting
power, contract or otherwise to elect or
designate for election a majority of the Board of
Directors of such parent corporation);
(iii) during any period of two consecutive
years, individuals who at the beginning of such
period constituted the Board of Directors of the
Issuer (together with any new directors whose
election by such Board of Directors or whose
nomination for election by the shareholders of
the Issuer was approved by a vote of 66 2/3% of
the directors of the Issuer then still in office
who were either directors at the beginning of
such period or whose election or nomination for
election was previously so approved) cease for
any reason to constitute a majority of the Board
of Directors of the Issuer then in office; or
(iv) the Issuer consolidates with or merges
with or into any other Person or conveys,
transfers or leases all or substantially all of
its assets to any Person or any Person
consolidates with or merges into the Issuer, in
either event pursuant to a transaction in which
either (A) the outstanding Voting Stock of the
Issuer is changed into or exchanged for Cash,
securities or other property (excluding, however,
any such transaction where the outstanding Voting
Stock of the Issuer is changed into or exchanged
for Voting Stock of the surviving or transferee
corporation which is neither Redeemable Stock nor
Exchangeable Stock) or (B) the holders of the
Voting Stock of the Issuer immediately prior to
such transaction, together with Kelso & Company
and Affiliates of Kelso & Company which are
either controlled by or under common control with
Kelso & Company, own, directly or indirectly, in
the aggregate, less than 50.01% of the Voting
Stock of the surviving Person immediately after
such transaction.
CONSOLIDATED EBITDA COVERAGE RATIO: The term
"Consolidated EBITDA Coverage Ratio" as determined on any date
means the ratio of (i) the aggregate amount of Consolidated Net
Income plus (to the extent deducted in calculating Consolidated
Net Income) Consolidated Interest Expense, income taxes,
depreciation expense, amortization expense, non-cash write-offs
of deferred financing costs and non-cash deductions for
contributions to the ESOP (but without giving any effect to any
extraordinary gain or loss) for the Reference Period to (ii) the
aggregate amount of Consolidated Interest Expense for the
Reference Period.
CONSOLIDATED INTEREST EXPENSE: The term
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Issuer and its consolidated Subsidiaries,
including (i) interest expense attributable to capital leases,
(ii) amortization of debt discount and debt issuance cost,
(iii) capitalized interest, (iv) noncash interest payments,
(v) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(vi) net costs under Interest Rate Protection Agreements
(including amortization of fees), (vii) Preferred Stock dividends
in respect of all Preferred Stock held by Persons other than the
Issuer or a Wholly Owned Subsidiary, (viii) interest incurred in
connection with investments in discontinued operations and
(ix) interest actually paid by the Issuer or any of its
consolidated Subsidiaries under any guarantee of Debt or any
other obligation of any other Person.
CONSOLIDATED NET INCOME: The term "Consolidated
Net Income" means, for any period, the net income of the Issuer
and its consolidated Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting
principles; provided, however, that there shall not be included
in such Consolidated Net Income:
(i) any net income of any Person if such Person
is not a Subsidiary, except that (A) the Issuer's
equity in the net income of any such Person for
such period shall be included in such
Consolidated Net Income up to the aggregate
amount of Cash actually distributed by such
Person during such period to the Issuer or a
Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other
distribution to a Subsidiary, to the limitations
contained in clause (iii) below) and (B) the
Issuer's equity in a net loss of any such Person
for such period shall be included in determining
such Consolidated Net Income;
(ii) any net income of any Person acquired
by the Issuer or a Subsidiary in a pooling of
interests transaction for any period prior to the
date of such acquisition;
(iii) any net income of any Subsidiary if
such Subsidiary is subject to restrictions,
directly or indirectly, on the payment of
dividends or the making of distributions by such
Subsidiary, directly or indirectly, to the
Issuer, except that (A) the Issuer's equity in
the net income of any such Subsidiary for such
period shall be included in such Consolidated Net
Income up to the aggregate amount of Cash
actually distributed by such Subsidiary during
such period to the Issuer or another Subsidiary
as a dividend or other distribution (subject, in
the case of a dividend or other distribution to
another Subsidiary, to the limitation contained
in this clause) and (B) the Issuer's equity in a
net loss of any such Subsidiary for such period
shall be included in determining such Consoli-
dated Net Income;
(iv) any gain (but not loss) realized upon
the sale or other disposition of any property,
plant or equipment of the Issuer or its
consolidated Subsidiaries (including pursuant to
any sale and leaseback arrangement) which is not
sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss)
realized upon the sale or other disposition of
any Capital Stock of any Person; or
(v) the cumulative non-cash effect of a change
in accounting principles, including (A) the
cumulative or one-time non-cash charges
associated with the implementation of SFAS 106 by
the Issuer with respect to services rendered by
employees in periods prior to its implementation,
but excluding any effects of such implementation
with respect to services rendered in periods
following such implementation and (B) any
cumulative or one-time non-cash charges
associated with the implementation of SFAS 109.
CONSOLIDATED NET TANGIBLE ASSETS: The term "Con-
solidated Net Tangible Assets" means the total assets shown on
the balance sheet of the Issuer and its consolidated
Subsidiaries, determined on a consolidated basis using generally
accepted accounting principles, as of any date selected by the
Issuer not more than 90 days prior to the taking of any action
for the purpose of which the determination is being made, less
(i) all current liabilities and minority interests and
(ii) goodwill and other intangibles.
CONSOLIDATED NET WORTH: The term "Consolidated
Net Worth" of any Person means the total amounts shown on the
balance sheet of such Person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with generally
accepted accounting principles, as of the end of the most recent
fiscal quarter of such Person ending at least 45 days prior to
the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of
all outstanding Capital Stock of such Person plus (ii) paid-in
capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any
accumulated deficit, (B) any amounts attributable to Redeemable
Stock and (C) any amounts attributable to Exchangeable Stock, and
excluding amounts attributable to cumulative or one-time non-cash
charges associated with the implementation of SFAS 106 and 109.
CORPORATE TRUST OFFICE: The term "Corporate
Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered.
DEBT: The term "Debt" of any Person means, with-
out duplication:
(i) the principal of and premium (if any) in
respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by
the Securities, the First Mortgage Bonds, notes,
debentures, bonds or other similar instruments
for the payment of which such Person is
responsible or liable;
(ii) all Capital Lease Obligations of such
Person;
(iii) all obligations of such Person issued
or assumed as the deferred purchase price of
property, all conditional sale obligations of
such Person and all obligations of such Person
under any title retention agreement (but
excluding trade accounts payable arising in the
ordinary course of business);
(iv) all obligations of such Person for the
reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit
transaction (other than obligations with respect
to letters of credit securing obligations (other
than obligations described in (i) through (iii)
above) entered into in the ordinary course of
business of such Person to the extent such
letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reim-
bursed no later than the third Business Day
following receipt by such Person of a demand for
reimbursement following payment on the letter of
credit);
(v) the amount of all obligations of such Person
with respect to the redemption, repayment or
other repurchase of any Redeemable Stock or
Exchangeable Stock;
(vi) all obligations of the type referred to
in clauses (i) through (v) of other Persons and
all dividends of other Persons for the payment of
which, in either case, such Person is responsible
or liable as obligor, guarantor or otherwise;
PROVIDED, HOWEVER that to the extent such Person
is responsible or liable only for the obligation
of another Person to pay interest on Debt, then a
designated percentage of such interest or the
amount of the underlying Debt, as the case may
be, shall be deemed Debt of the referent Person
and the amount of such deemed Debt of the
referent Person shall be equal to the lesser of
(A) the aggregate principal amount of the
underlying Debt or (B) the aggregate amount of
interest due or payable over the term of such
Debt (or the term of the Securities, if shorter)
determined based upon the rate of interest in
effect as of the date of such determination,
together with the maximum prepayment premium or
penalty which could become due or payable with
respect to such Debt if such Debt was prepaid
prior to the maturity of the Securities;
(vii) all obligations of the type referred to
in clauses (i) through (vi) of other Persons
secured by any Lien on any property or asset of
such Person (whether or not such obligation is
assumed by such Person), the amount of such
obligation being deemed to be the lesser of the
value of such property or assets or the amount of
the obligation so secured; and
(viii) all obligations of such Person
consisting of modifications, renewals,
extensions, replacements and refundings of any
obligations described in clause (i), (ii), (iii),
(iv), (v), (vi) or (vii).
DEFAULT: The term "Default" means any condition
or event which constitutes or which, after notice or lapse of
time or both, would constitute an Event of Default hereunder.
DEFAULT RATE: The term "Default Rate" has the
respective meanings specified in the forms of Securities included
in this Indenture.
ESOP: The term "ESOP" means the Issuer's
Employee Stock Ownership Plan.
ESOP PREFERRED STOCK: The term "ESOP Preferred
Stock" means shares of Preferred Stock of the Issuer held by the
ESOP.
EVENT OF DEFAULT: The term "Event of Default"
means any event specified as such in Section 5.01, continued for
the period of time, if any, and after the giving of notice, if
any, therein designated.
EXCHANGE ACT: The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended.
EXCHANGEABLE STOCK: The term "Exchangeable
Stock" means any Capital Stock which is exchangeable or
convertible into another security (other than Capital Stock of
the Issuer which is neither Exchangeable Stock nor Redeemable
Stock).
FIRST MORTGAGE BONDS: The term "First Mortgage
Bonds" means the Issuer's First Mortgage Bonds issued under the
First Mortgage Bonds Indenture.
FIRST MORTGAGE BONDS INDENTURE: The term "First
Mortgage Bonds Indenture" means the Amended and Restated
Indenture, dated as of March 9, 1993, between the Issuer and
Shawmut Bank Connecticut, National Association.
HOLDER; SECURITYHOLDER: The term "Holder" of a
Security and the term "Securityholder" means the Person in whose
name at the time such Security is registered on the Security
Register kept for that purpose in accordance with the terms
hereof.
INDENTURE: The term "Indenture" means this
Indenture as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
INDEPENDENT ACCOUNTANTS: The term "Independent
Accountants" means a firm of independent public accountants
meeting the requirements therefor under the Securities Act and
rules and regulations of the SEC, which shall be KPMG Peat
Marwick or another firm of independent certified public
accountants of nationally recognized standing selected by the
Issuer and reasonably satisfactory to the Trustee.
INTEREST PAYMENT: The term "Interest Payment"
has the respective meanings specified in the forms of Securities
included in this Indenture.
INTEREST PERIOD: The term "Interest Period" has
the respective meanings specified in the forms of Securities
included in this Indenture.
INTEREST RATE PROTECTION AGREEMENT: The term
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial
agreement or arrangement designed to protect the Issuer or any
Subsidiary against fluctuations in interest rates.
INVESTMENT: The term "Investment" in any Person
means any loan or advance to, any acquisition of Capital Stock,
equity interest, obligation or other security of, or capital
contribution or other investment in, such Person.
ISSUE: The term "issue" means issue, assume,
guarantee, incur or otherwise become liable for; PROVIDED,
HOWEVER, that any Debt or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be
issued by such Subsidiary at the time it becomes a Subsidiary.
ISSUE DATE: The term "Issue Date" means,
June 30, 1995.
ISSUER: The term "Issuer" means the party named
as such in this Indenture until a successor replaces it, and
thereafter, means the successor, and, for purposes of any
provision contained herein and required by the TIA, each other
obligor on the Securities.
ISSUER ORDER: The term "Issuer Order" means a
written order signed in the name of the Issuer by the Chairman of
the Board, the President or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer, and delivered to the Trustee.
LEGAL HOLIDAY: The term "Legal Holiday" has the
meaning set forth in Section 11.06.
LIEN: The term "Lien" means any mortgage,
pledge, security interest, conditional sale or other title
retention agreement, constructive trust or other similar lien.
MATURITY DATE: The term "Maturity Date" means,
May 1, 2007.
NET AVAILABLE CASH: The term "Net Available
Cash" from an Asset Disposition means Cash payments received
(including any Cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or
otherwise, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring
Person of Debt or other obligations relating to such properties
or assets or received in any other non-Cash form) therefrom, in
each case net of all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all
federal, state, provincial, foreign and local taxes required to
be accrued as a liability under generally accepted accounting
principles, as a consequence of such Asset Disposition, and in
each case net of all payments made on any Debt which is secured
by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon or other security agreement of
any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law be repaid out of the proceeds
from such Asset Disposition, and net of all distributions and
other payments required to be made and actually made to minority
interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition.
NET CASH PROCEEDS: The term "Net Cash Proceeds",
with respect to any issuance or sale of Capital Stock, means the
Cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
NEW CREDIT AGREEMENT: The term "New Credit
Agreement" means the Second Amended and Restated Credit Agree-
ment, dated June 19, 1995, between the Issuer and United States
National Bank of Oregon.
NON-CONVERTIBLE CAPITAL STOCK: The term "Non-
Convertible Capital Stock" means, with respect to any corpora-
tion, any non-convertible Capital Stock of such corporation and
any Capital Stock of such corporation convertible solely into
non-convertible common stock of such corporation; PROVIDED,
HOWEVER, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
NON-RECOURSE DEBT: The term "Non-Recourse Debt"
means Debt or that portion of Debt of a Subsidiary as to which
(i) neither the Issuer nor any Subsidiary (other than a Non-
Recourse Subsidiary) (A) provides credit support or (B) is
directly or indirectly liable and (ii) no default with respect to
such Debt (including any right which the holders thereof may have
to take enforcement action against such Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Debt
of the Issuer or any other Subsidiary to declare a default on
such other Debt or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.
NON-RECOURSE SUBSIDIARY: The term "Non-Recourse
Subsidiary" means a Subsidiary organized or acquired after the
date of this Indenture which has no Debt other than Non-Recourse
Debt and which has been designated as a Non-Recourse Subsidiary
by the Board of Directors of the Issuer, as provided below. The
Board of Directors of the Issuer may designate any Subsidiary
organized or acquired after the date of this Indenture as a Non-
Recourse Subsidiary, PROVIDED, HOWEVER, that, notwithstanding the
foregoing, no Subsidiary as of the date of this Indenture shall
be reclassified as a Non-Recourse Subsidiary or become a
Subsidiary of a Non-Recourse Subsidiary. The Trustee shall be
given prompt notice by the Issuer of each resolution adopted by
the Board of Directors under this provision, together with a
certified copy of each such resolution adopted and an Officers'
Certificate certifying that such designation complies with the
foregoing conditions.
OBLIGATIONS: The term "Obligations" means
(a) the due and punctual payment of principal of, and interest on
the Securities, (b) the due and punctual payment by the Issuer of
all other sums due or to become due under the Securities or this
Indenture, and (c) the performance of all covenants, agreements,
obligations and liabilities of the Issuer under or pursuant to
the Securities and this Indenture.
OFFER: The term "Offer" has the meaning set
forth in Section 4.09(b).
OFFER AMOUNT: The term "Offer Amount" has the
meaning set forth in Section 4.09(c)(2).
OFFER PERIOD: The term "Offer Period" has the
meaning set forth in Section 4.09(c)(2).
OFFICER: The term "Officer" means the Chairman
of the Board, the President, any Vice President, the Treasurer or
the Secretary of the Issuer.
OFFICERS' CERTIFICATE: The term "Officers' Cer-
tificate" means a certificate signed by two Officers.
OPINION OF COUNSEL: The term "Opinion of
Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Trustee.
OUTSTANDING: The term "Outstanding", when used
with reference to Securities means, subject to the provisions of
Section 11.04, as of any particular time, all Securities
authenticated by the Trustee and delivered under this Indenture,
except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities for the payment or redemption in
whole of which Cash in the necessary amount
(including interest, if any) shall have been
deposited in trust with the Trustee or any paying
agents (other than in the case of defeasance
pursuant to Article Six), provided that if such
Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of or in substitution or
exchange for which other Securities shall have
been authenticated and delivered, or which have
been paid, pursuant to the terms of Section 2.07,
unless proof satisfactory to the Issuer and the
Trustee is presented that any such Securities are
held by Persons in whose hands any of such
Securities is a valid, binding and legal
obligation of the Issuer.
PARENT: The term "Parent" means any Person of
which the Issuer is a Subsidiary at the relevant time.
PAYMENT DATE: The term "Payment Date" has the
respective meanings specified in the forms of Securities included
in this Indenture.
PERMITTED HOLDERS: The term "Permitted Holders"
means Kelso & Company and its Affiliates, the Co-Investors and
the Management Shareholders. The terms Co-Investors and
Management Shareholders have the respective meanings specified in
the Stockholders' Agreement, as in effect on the date hereof.
PERMITTED INVESTMENTS: The term "Permitted In-
vestments" means (i) U.S. Government Obligations maturing within
90 days of the date of acquisition thereof, (ii) investments in
certificates of deposit maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States or any state
thereof having capital, surplus and undivided profits aggregating
in excess of $500,000,000 or issued in an amount not to exceed
$1 million at any time by United States National Bank of Oregon
(or, if United States National Bank of Oregon ceases to be the
bank with which the Issuer has its principal banking
relationship, the bank with which the Issuer then has its
principal banking relationship), (iii) investments in commercial
paper given the highest rating (i.e., A-1/P-1 or better) by two
established national credit rating agencies and maturing not more
than 90 days from the date of acquisition thereof and (iv) solely
with respect to Investments by the Trustee, in the absence of any
direction by the Issuer or during the continuance of a Default or
an Event of Default, shares in any money market fund registered
under the Investment Company Act of 1940, as amended, the
portfolio of which is limited to U.S. Government Obligations and
U.S. agency obligations.
PERSON: The term "Person" means any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
PREFERRED STOCK: The term "Preferred Stock", as
applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
PRINCIPAL: The term "principal" of a Security
means the principal of the Security which is due or overdue or is
to become due at the relevant time.
PURCHASE DATE: The term "Purchase Date" has the
meaning set forth in Section 4.09(c)(1).
RECORD DATE: The term "Record Date" has the
respective meanings provided in the forms of Securities included
in this Indenture.
REDEEMABLE STOCK: The term "Redeemable Stock"
means any Capital Stock that by its terms or otherwise is
required to be redeemed on or prior to the first anniversary of
the Stated Maturity of the Securities or is redeemable at the
option of the holder thereof at any time on or prior to the first
anniversary of the Stated Maturity of the Securities.
REFERENCE PERIOD: The term "Reference Period",
with respect to any computation of the Consolidated EBITDA
Coverage Ratio, means the most recent four consecutive fiscal
quarters ending at least 45 days prior to the date of
determination of the Consolidated EBITDA Coverage Ratio.
REPRESENTATIVE: The term "Representative" has
the meaning set forth in Section 10.02.
RESTRICTED PAYMENT: The term "Restricted
Payment" has the meaning set forth in Section 4.04.
SEC: The term "SEC" means the Securities and
Exchange Commission.
SECURITIES ACT: The term "Securities Act" means
the Securities Act of 1933, as amended.
SECURITY: The term "Security" means any Security
authenticated by the Trustee and delivered under this Indenture.
SECURITY REGISTER: The term "Security Register"
has the meaning set forth in Section 2.06.
SECURITY REGISTRAR; SECURITY CO-REGISTRAR: The
terms "Security Registrar" and "Security Co-Registrar" have the
meanings set forth in Section 2.06.
SENIOR DEBT: The term "Senior Debt" means Debt
unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that
such obligations are pari passu or subordinate or junior in right
of payment to the Securities; PROVIDED, HOWEVER, that Senior Debt
shall not be deemed to include (1) any obligation of the Issuer
to any Subsidiary, (2) any liability for federal, state, local or
other taxes owed or owing by the Issuer, (3) any accounts payable
or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments
evidencing such liabilities), (4) any indebtedness, guarantee or
obligation of the Issuer which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer (including, without limitation, the Securities), (5) the
portion of any Debt issued in violation of Section 4.05 or
Section 4.06 hereof or (6) any obligations of the Issuer or any
Subsidiary with respect to the redemption, repayment or other
repurchase of any Redeemable Stock or Exchangeable Stock.
SENIOR SUBORDINATED DEBT: The term "Senior Sub-
ordinated Debt" has the meaning set forth in Section 10.02.
SERIES B BONDS: The term "Series B Bonds" means
the 11 1/2% First Mortgage Bonds, Series B, Due 2005 of the
Issuer issued pursuant to the First Mortgage Bonds Indenture.
STATED MATURITY: The term "Stated Maturity"
means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant
to any mandatory redemption provision.
STOCKHOLDERS' AGREEMENT: The term Stockholders'
Agreement means the Stockholders' Agreement, dated as of
December 24, 1986, as amended or restated, among the Issuer and
the parties listed on the signature pages thereof.
SUBORDINATED OBLIGATION: The term "Subordinated
Obligation" means any Debt of the Issuer (whether outstanding on
the date hereof or hereafter incurred) which is subordinate or
junior in right of payment to the Securities.
SUBSIDIARY: The term "Subsidiary" means any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) the Issuer, (ii) the Issuer and one or more
Subsidiaries or (iii) one or more Subsidiaries.
SUPERIOR DEBT: The term "Superior Debt" has the
meaning set forth in Section 10.02.
TANGIBLE PROPERTY: The term "Tangible Property"
means all land, buildings, machinery and equipment and leasehold
interests and improvements which would be reflected on a
consolidated balance sheet of the Issuer and its consolidated
Subsidiaries, prepared in accordance with generally accepted
accounting principles, excluding (i) all such tangible property
located outside the United States, including the Commonwealth of
Puerto Rico and each territory and possession of the United
States and all areas subject to its jurisdiction, (ii) all
rights, contracts and other intangible assets of any nature
whatsoever and (iii) all inventories and other current assets.
TIA: The term "TIA" means the Trust Indenture
Act of 1939 (15 U.S.C. sections 77aaa--77bbbb) as in effect on
the date of this Indenture; PROVIDED, HOWEVER, that in the event
that the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
TRUSTEE: The term "Trustee" means the
corporation or trust company or national banking association
named as Trustee in this Indenture until any successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
TRUST OFFICER: The term "Trust Officer" means
any vice president, trust officer or corporate trust officer of
the Trustee, in each case employed by the Corporate Trust
Administration department of the Trustee.
UNITED STATES: The term "United States" means
the United States of America, including the states and the
District of Columbia.
UNITED STATES PERSON: The term "United States
Person" means a Person who, for United States federal income tax
purposes, is (a) a citizen or resident of the United States, (b)
an estate or trust the income of which is subject to United
States federal income taxation regardless of its source, or (c) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any state or the
District of Columbia.
U.S. GOVERNMENT OBLIGATIONS: The term "U.S.
Government Obligations" means direct obligations (or certificates
evidencing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not
callable at the issuer's option.
VOTING STOCK: The term "Voting Stock" of a
corporation means all classes of Capital Stock of such corpora-
tion then outstanding and normally entitled to vote in the
election of directors.
WHOLLY OWNED SUBSIDIARY: The term "Wholly Owned
Subsidiary" means a Subsidiary all the Capital Stock of which
(other than directors' qualifying shares) is owned by the Issuer
or another Wholly Owned Subsidiary.
SECTION 1.02. INCORPORATION BY REFERENCE OF
TRUST INDENTURE ACT. Whenever this Indenture refers to a provi-
sion 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:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Security-
holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE"
means the Trustee.
"OBLIGOR" on the indenture securities means the
Issuer.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule have the meanings assigned to them
by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) an accounting term not otherwise defined has
the meaning assigned to it in accordance with
generally accepted accounting principles as in
effect from time to time;
(2) "or" is not exclusive;
(3) "including" means including, without limita-
tion;
(4) words in the singular include the plural and
words in the plural include the singular;
(5) the principal amount of any non-
interest bearing or other discount security at
any time shall be the principal amount thereof
that would be shown on a balance sheet of the
Issuer dated such date prepared in accordance
with generally accepted accounting principles and
accretion of principal on such security shall be
deemed to be the issuance of Debt; and
(6) the principal amount of any Redeemable Stock
shall be the greater of (i) the maximum
liquidation value of such Redeemable Stock or
(ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such
Redeemable Stock, whichever is greater.
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION
AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION, AMOUNT AND ISSUE OF
SECURITIES. The Securities shall be designated as the Issuer's
"15% Senior Subordinated Debentures, Due 2007." The Securities
will be limited to $115,000,000 in aggregate principal amount,
except as provided in Section 2.07.
SECTION 2.02. AUTHENTICATION AND DELIVERY OF
SECURITIES. Upon the execution and delivery of this Indenture,
and from time to time thereafter, the Securities shall be
executed by the Issuer and such Securities may thereupon be
delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Securities upon an
Issuer Order.
SECTION 2.03 FORM OF SECURITIES AND TRUSTEE'S
CERTIFICATE OF AUTHENTICATION GENERALLY. The Securities and the
Trustee's certificate of authentication to be borne by the
Securities shall be in substantially the form annexed hereto as
Exhibit A, with such appropriate insertions, omissions,
substitutions and other warranties as are required or permitted
under this Indenture, in temporary or definitive form, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Issuer may
deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to usage. The terms and
provisions contained in the form of the Securities annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Issuer and
the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.04 DENOMINATION AND DATE OF SECURI-
TIES; PAYMENT OF PRINCIPAL AND INTEREST. The Securities shall be
issuable in registered form without coupons. The Securities
shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the
Issuer executing the same may determine with the approval of the
Trustee.
The Securities shall be issuable in denominations
of $1,000 and such greater denominations as are whole multiples
of $1,000. Each Security shall be dated the date of its
authentication and shall bear interest on the unpaid principal
amount thereof from and after the most recent Payment Date to
which interest has been paid or, if no interest has been paid,
from and after the Issue Date. Each Security authenticated
between the Record Date for any Payment Date and such Payment
Date shall be dated the date of its authentication but shall bear
interest from such Payment Date, unless the Issuer shall default
in the payment of interest due on such Payment Date, in which
case any such Security shall bear interest from the Payment Date
next preceding the date of such Security to which interest has
been paid or, if no interest has been paid on the Securities,
from the Issue Date.
The Person in whose name any Security is regis-
tered at 5:00 p.m., New York City time on any Record Date with
respect to any Payment Date for such Security shall be entitled
to receive the Interest Payment payable on such Payment Date
notwithstanding any transfer or exchange of such Security
subsequent to the Record Date and prior to such Payment Date,
except that, if and to the extent the Issuer shall default in the
payment of the Interest Payment due on such Payment Date or shall
not have duly provided for the payment thereof, such defaulted
payment shall be paid to the Persons in whose names Securities
then Outstanding are registered on a subsequent date of record
established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 10 days preceding such
subsequent date of record and payment of such defaulted Interest
Payment shall be made not less than five days after such date of
record.
The principal of the Securities at maturity or
upon redemption in whole or in part shall be payable, together
with accrued interest, upon surrender of the Securities at the
offices of the paying agent of the Issuer designated for that
purpose, as provided in Section 4.12. Interest Payments on
Securities will be made in U.S. dollars, at the office of the
Trustee, but, at the option of the Issuer, such payments may be
made by check drawn on a bank in New York, New York mailed to the
address of the Holder as such address shall appear on the
Security Register.
Interest on the Securities will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 2.05 EXECUTION OF SECURITIES. Each
Security shall be signed in the name and on behalf of the Issuer
manually or by facsimile by its President or any Vice President
under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise) attested
by the manual or facsimile signature of its Secretary or an
Assistant Secretary, prior to the authentication of the Security,
and the delivery of such Security by the Trustee upon an Issuer
Order, after the authentication thereof hereunder, shall
constitute due delivery of such Security on behalf of the Issuer.
In case any officer of the Issuer who shall have signed, or whose
facsimile signature appears on any of the Securities shall cease
to be such officer before the Securities shall have been
authenticated and delivered by the Trustee or disposed of, such
Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Security had not
ceased to be such officer. Any Security may be signed on behalf
of the Issuer by such officer as, at the actual date of the
execution of such Security shall be the proper officer of the
Issuer, although at the date of the execution of this Indenture
any such Person was not such an officer.
Only such Securities as shall bear thereon a
certificate of authentication substantially in the form herein
recited, executed by the Trustee by manual signature of one of
its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.06 EXCHANGE AND REGISTRATION OF TRANS-
FER OF SECURITIES. The Issuer shall keep, at the office or
agency to be maintained by the Trustee for such purpose (herein
referred to as the "Security Registrar" or the "Security Co-
Registrar") in the Borough of Manhattan, The City of New York, as
provided in Section 4.12, a register (herein sometimes referred
to as the "Security Register") in which, subject to such reason-
able regulations as it may prescribe, the Issuer shall provide
for the registration of the Securities and the registration of
transfers thereof as in this Article Two provided. Upon written
notice to the Trustee and any acting Security Registrar, the
Issuer may appoint a successor Security Registrar for such
purposes. The Issuer may appoint one or more Security
Co-Registrars for such purposes. At all reasonable times, any
Security Register shall be open for inspection by the Trustee.
Upon due presentment for registration of transfer of any Security
at the office or agency of any Security Registrar or any Security
Co-Registrar, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the transferee or
transferees, one or more new Securities of like tenor of any
authorized denominations for an aggregate principal amount equal
to the then current principal balance of the Security presented
for registration of transfer.
All Securities presented for registration of
transfer or for exchange, redemption or payment, as the case may
be, shall (if so required by the Issuer or the Trustee or the
Security Registrar or any Security Co-Registrar) be duly endorsed
by, or be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person
imposing such requirement duly executed by, the Holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities (except the costs of
mailing), but the Issuer may require payment of a sum sufficient
to cover any tax, assessment or other governmental charge that
may be imposed in connection therewith.
The Issuer shall not be required to exchange or
register the transfer of any Securities called for redemption or
any Securities for a period of fifteen days before a selection of
Securities to be redeemed.
Upon delivery by any Security Registrar or
Security Co-Registrar of a Security in exchange for a Security
surrendered to it in accordance with the provisions of this
Indenture, the Security so delivered shall, for all purposes of
this Indenture, be deemed to be fully registered in the Security
Register; PROVIDED, HOWEVER, that in making any determination as
to the identity of Persons who are Holders of Securities, the
Trustee shall, subject to the provisions of Section 7.01, be
fully protected in relying on the Security Register.
SECTION 2.07 MUTILATED, DESTROYED, LOST OR
STOLEN SECURITIES. In case any Security shall become mutilated,
destroyed, lost or stolen, the Issuer shall execute, and the
Trustee shall authenticate and deliver, a new Security or
Securities of like series and tenor, bearing a number not
contemporaneously outstanding in an aggregate principal amount
equal to the current principal balance of, and in substitution
for, the Security so mutilated, destroyed, lost or stolen. In
every such case, the applicant for a substitute Security shall,
at the expense of the applicant, furnish to the Issuer, the
Trustee, the Security Registrar and any Security Co-Registrar
such security or indemnity as may be required by them to save
each of them harmless. Also, in every case of destruction, loss
or theft, the applicant shall furnish to the Issuer, the Trustee,
the Security Registrar and any Security Co-Registrar evidence to
their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. In every case of
mutilation, the applicant shall surrender to the Trustee the
Security so mutilated. The Trustee shall authenticate any such
substitute Security and deliver the same. Upon the issuance of
any substitute Security, the Issuer may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. If required by the Trustee or the Issuer,
such applicant shall furnish an indemnity bond sufficient in the
judgment of the Issuer and the Trustee to protect the Issuer, the
Trustee, the paying agent, the Security Registrar and any
Security Co-Registrar from any loss which any of them may suffer
if a Security is replaced. In case any Security shall have
become mutilated, destroyed, lost or stolen and has become or is
about to become due or payable, the Issuer may pay or authorize
the payment of the same instead of issuing a substitute Security
as permitted by this Section 2.07.
Every substitute Security issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any
Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not
the destroyed, lost or stolen Security shall at any time be found
by anyone, and shall be entitled to all the benefits and be
subject to all the terms and conditions of this Indenture equally
and proportionately with any and all other Securities duly issued
and outstanding hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall preclude any and all other rights or
remedies, notwithstanding any law or statute now existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08 CANCELLATION OF SURRENDERED SECURI-
TIES. All Securities surrendered for redemption in whole or in
part pursuant to the provisions of Article Three and all
Securities surrendered for payment or for substitution or
exchange or registration of transfer hereunder shall be delivered
to the Trustee for cancellation and shall be canceled by the
Trustee, and no Securities shall be issued in lieu thereof,
except as otherwise provided in this Indenture. The Trustee
shall destroy all canceled Securities held by it and shall
deliver to the Issuer a certificate in respect of such
destruction. If the Issuer shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for
cancellation. Any Securities acquired by the Issuer and
delivered to the Trustee shall be canceled by the Trustee upon
receipt of written instructions from the Issuer.
SECTION 2.09 TEMPORARY SECURITIES. Until defin-
itive Securities are ready for delivery, the Issuer may prepare
and, upon written request signed by two Officers of the Issuer,
the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities, but may have variations that the Issuer considers
appropriate for temporary Securities, as conclusively evidenced
by the execution of such Securities. Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate
definitive Securities and deliver them in exchange for temporary
Securities.
SECTION 2.10 FOREIGN HOLDER CERTIFICATION. Each
Holder that is not a United States Person shall provide the
Issuer and the Trustee on or prior to the date of the acquisition
of a Security with two copies of a properly completed United
States Internal Revenue Service Form 4224 or Form 1001 (or, if a
Holder is not described in Section 871(h)(3) or Section 881(c)(3)
of the Code, Form W-8), as appropriate, or any successor forms
thereto, in each case together with such other information or
necessary certification establishing to the satisfaction of the
Issuer that such Holder is not subject to United States federal
withholding tax on interest paid by the Issuer under the
Securities (or subject to such tax at a reduced rate of
withholding), in each case based on applicable United States law
or the provisions of an applicable United States treaty as in
effect at the time of delivery by such Holder of the appropriate
forms. Further, each such Holder shall provide the Issuer and
the Trustee with a new Form 4224 or Form 1001 (or Form W-8), as
appropriate, or applicable successor forms, together with such
other information or necessary certification as described in the
preceding sentence, on or before the date the previously
delivered forms (or such other information or certification)
become obsolete or expire or promptly after the occurrence of any
event requiring a change to the most recent forms (or such other
information or certification) previously delivered. In the case
of any payment of interest under the Securities to a Holder that
is not a United States Person, unless the Issuer and the Trustee
shall have received such forms (together with such information or
certification), satisfactory to them, indicating that such pay-
ment to such Holder by the Issuer is not subject to United States
federal withholding tax, the Issuer or the Trustee shall withhold
taxes from such payment at the applicable rate. If such forms
indicate that such Holder is subject to United States federal
withholding tax at a reduced rate under an applicable income tax
treaty, the Issuer or the Trustee shall withhold at the
applicable reduced treaty rate. The Trustee may assume that any
Holder is a United States Person unless the Trustee has actual
knowledge to the contrary or has received such forms. Any
amounts required to be withheld for taxes under the laws of the
United States shall be so withheld and remitted to the
appropriate tax authorities by the Issuer or the Trustee. The
Issuer or the Trustee shall promptly forward to such Holder an
original or certified copy of a tax receipt evidencing the
payment of such taxes.
Section 2.11 CUSIP NUMBERS. The Issuer, in
issuing the Securities, may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in
notices of redemption or exchange as a convenience to Holders;
PROVIDED, HOWEVER, that any such notice shall state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on
the other identification numbers printed on the Securities and
any redemption shall not be affected by any defect in or omission
of such numbers. The Issuer will promptly notify the Trustee of
the receipt of or any change in CUSIP numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. OPTIONAL REDEMPTION. The Se-
curities may be redeemed in whole, or from time to time in part,
at the option of the Issuer, upon notice given pursuant to
Section 3.02, at a redemption price equal to 100% of the
outstanding principal amount of the Securities to be redeemed,
plus accrued interest to the redemption date prior to maturity.
For purposes of this Indenture and the Securities, the term
"redeem" shall have the same meaning as the term "prepay".
Section 3.02. NOTICE OF REDEMPTION. In the
event that the Issuer elects to redeem the Securities pursuant to
Section 3.01 hereof, the Issuer shall deliver to the Trustee, at
least 45 days prior to the date fixed for redemption, an
Officers' Certificate of the Issuer (i) stating that the Issuer
is entitled to effect such redemption and (ii) specifying the
date fixed for redemption and the principal amount of the
Securities to be redeemed. The Trustee will be entitled to rely
conclusively upon such Officers' Certificate. At least 30 but
not more than 60 days prior to any date fixed for redemption, the
Trustee shall mail by first-class mail, postage prepaid, to the
Holders of the Securities at their addresses as the same appear
on the Security Register, a notice of such redemption containing
the following information:
(1) the date fixed for redemption;
(2) the redemption price;
(3) the name and address of the paying agent;
(4) that Securities called for redemption must
be surrendered to the paying agent to collect the
redemption price;
(5) if fewer than all the Outstanding Securities
are to be redeemed, the identification and
principal amounts of the particular Securities to
be redeemed and, if any Security is being
redeemed in part, the portion of the principal
amount of such Security to be redeemed and that,
after the redemption date, upon surrender of such
Security, a new Security or Securities in
principal amount equal to the unredeemed portion
will be issued;
(6) that, unless the Issuer defaults in making
such redemption payment, interest will cease to
accrue on Securities called for redemption on and
after the redemption date; and
(7) the paragraph of the Securities pursuant to
which the Securities called for redemption are
being redeemed.
The notice, if mailed as herein provided, shall
be conclusively presumed to have been duly given to the Holder of
a Security to whom such notice is mailed whether or not any
Holder receives such notice. Neither any failure to give notice
by mail nor any defect in the notice to the Holder of any
Security to be redeemed shall affect the validity of the
proceedings for the redemption of any other Security.
SECTION 3.03. PROCEDURES FOR REDEMPTION. On or
before 3 p.m. New York time on the Business Day next preceding
the date fixed for the redemption of Securities, the Issuer shall
deposit with the Trustee or with the paying agents an amount of
money sufficient to redeem on the date fixed for redemption, the
principal amount of the Securities to be redeemed (at the appli-
cable redemption price thereof, together with any interest
accrued thereon to the date of redemption in the case of
redemptions).
The Trustee shall not in any event be liable for
the payment of principal of, or interest on, any Securities
called for redemption as herein provided, except to the extent
that money shall have been deposited with it for such purpose.
Upon any redemption of Securities pursuant to
Section 3.01, the Issuer shall deliver to the Trustee an
Officers' Certificate of the Issuer stating that such Securities
have been redeemed.
SECTION 3.04. SELECTION OF SECURITIES TO BE
REDEEMED. In the case of the partial redemption of Securities
pursuant to the terms of this Indenture, selection of the
Securities for redemption will be made by the Trustee on a pro
rata basis, by lot or by such other method that complies with
applicable legal and securities exchange requirements, if any,
and that the Trustee in its sole discretion shall deem to be fair
and appropriate. Securities and portions thereof selected by the
Trustee for redemption shall be in amounts of $1,000 or integral
multiples thereof (with such adjustments as may be deemed
appropriate by the Trustee so that only Securities in de-
nominations of $1,000 or integral multiples thereof shall be
redeemed). Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.05. WHEN SECURITIES CALLED FOR REDEMP-
TION BECOME DUE AND PAYABLE. If notice of redemption has been
mailed as provided in Section 3.02, the Securities called for
redemption specified therein shall become due and payable on the
date and at the place or places stated in such notice, at the
applicable redemption price, and on and after said date (unless
the Issuer shall default in the payment of such principal at the
applicable redemption price) interest on such principal so to be
redeemed shall cease to accrue.
Upon surrender to the Trustee or a paying agent
of a Security to be redeemed in whole or in part in accordance
with the terms of this Indenture, a payment of principal with
respect to such Security shall be made in accordance with the
terms of this Indenture at the redemption price, plus accrued
interest thereon to the redemption date, PROVIDED that any
Interest Payment the maturity of which is on or prior to such
redemption date will be payable on the relevant Payment Date to
the Holders of record at the close of business on the relevant
record dates referred to in the Securities.
Upon presentation of any Security redeemed in
part only, the Issuer shall execute and the Trustee shall authen-
ticate and deliver to or on the order of the Holder thereof, at
the expense of the Issuer, a new Security or Securities, of
authorized denominations, in principal amount equal to the
current principal balance of the unredeemed portion of the
Security so presented.
ARTICLE FOUR
PARTICULAR COVENANTS, REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
The Issuer represents, warrants, covenants and
agrees, as follows:
SECTION 4.01. VALIDITY OF SECURITIES. The
Issuer is duly authorized under applicable law and its charter
documents to create and issue the Securities and to execute and
deliver this Indenture; all corporate action and governmental
consents, authorizations and approvals necessary or required
therefor have been duly and effectively taken or obtained. The
Securities are legal, valid and binding obligations of the
Issuer.
SECTION 4.02. PAYMENT OF PRINCIPAL OF, AND
INTEREST ON SECURITIES. The Issuer will duly and punctually pay
or cause to be paid the principal of, and interest (without
deduction or withholding for or on account of any taxes except as
required by law) on each of the Securities at the places, at the
respective times and in the manner provided in the Securities and
this Indenture.
SECTION 4.03. SEC REPORTS. The Issuer shall
file with the Trustee and provide Securityholders, within 15 days
after it files them with the SEC, copies of its annual report and
of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Issuer is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Issuer may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Issuer shall continue to file with the SEC
so long as any Securities remain Outstanding and provide the
Trustee and Securityholders with such annual reports and such
information, documents and other reports (or copies of such por-
tions of any of the foregoing as the SEC may by rules and
regulations prescribe) which are specified in Sections 13 and
15(d) of the Exchange Act. The Issuer also shall comply with the
other provisions of TIA section 314(a).
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Issuer shall not, and shall not permit any Subsidiary,
directly or indirectly, to (i) declare or pay any dividend or
make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or
consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-Convertible
Capital Stock and except dividends or distributions payable to
the Issuer or a Subsidiary), (ii) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Issuer or of
any direct or indirect Parent of the Issuer, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations
(other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of and used
for satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date
of acquisition) or (iv) make any Investment in any Affiliate of
the Issuer, other than a Subsidiary that is not a Non-Recourse
Subsidiary or a Person which will become a Subsidiary that is not
a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being
hereinafter referred to as a "Restricted Payment") if at the time
the Issuer or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be
continuing (or would result therefrom);
(2) the Issuer is not able to issue $1.00 of
additional Debt in accordance with the provisions
of Section 4.06(a); or
(3) the aggregate amount of such Restricted
Payment and all other Restricted Payments since
the date of issuance of the Securities would
exceed the sum of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting
period) from the date of issuance of the Se-
curities, to the end of the most recent fiscal
quarter ending at least 45 days prior to the date
of such Restricted Payment (or, in case such Con-
solidated Net Income shall be a deficit, minus
100% of such deficit) and minus 100% of the
amount of any write-downs, write-offs, other
negative revaluations and other negative
extraordinary charges not otherwise reflected in
Consolidated Net Income during such period;
(B) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) subsequent to the date of
issuance of the Securities (other than an
issuance or sale to a Subsidiary or an employee
stock ownership plan);
(C) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) to an employee stock
ownership plan subsequent to the date of issuance
of the Securities, but (if such employee stock
ownership plan incurs any Debt) only to the
extent that any such proceeds are equal to any
increase in the Consolidated Net Worth of the
Issuer resulting from principal repayments made
by such employee stock ownership plan with
respect to Debt incurred by it to finance the
purchase of such Capital Stock; and
(D) the amount by which Debt of the Issuer is
reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Subsid-
iary) subsequent to the date of issuance of the
Securities of any Debt of the Issuer convertible
or exchangeable for Capital Stock (other than
Redeemable Stock or Exchangeable Stock) of the
Issuer (less the amount of any Cash, or other
property, distributed by the Issuer upon such
conversion or exchange).
(b) The provisions of Section 4.04(a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock
or Subordinated Obligations of the Issuer made by
exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock
of the Issuer (other than Redeemable Stock or
Exchangeable Stock and other than Capital Stock
issued or sold to a Subsidiary or an employee
stock ownership plan); PROVIDED, HOWEVER, that
(A) such purchase or redemption shall be excluded
in the calculation of the amount of Restricted
Payments made since the date of issuance of the
Securities and (B) the Net Cash Proceeds from
such sale shall be excluded from clauses (3)(B)
and (3)(C) of Section 4.04(a);
(ii) any purchase or redemption of
Subordinated Obligations of the Issuer made by
exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated
Obligations of the Issuer; PROVIDED, HOWEVER,
that such purchase or redemption shall be
excluded in the calculation of the amount of
Restricted Payments made since the date of
issuance of the Securities;
(iii) any purchase or redemption of
Subordinated Obligations from Net Available Cash
to the extent permitted by Section 4.09;
PROVIDED, HOWEVER, that such purchase or
redemption shall be excluded in the calculation
of the amount of Restricted Payments made since
the date of issuance of the Securities;
(iv) dividends paid within 60 days after the
date of declaration thereof if at such date of
declaration such dividends would have complied
with this Section; PROVIDED, HOWEVER, that at the
time of payment of such dividends, no other
Default shall have occurred and be continuing (or
result therefrom); PROVIDED FURTHER, HOWEVER,
that such dividends shall be included in the
calculation of the amount of Restricted Payments
made since the date of issuance of the
Securities;
(v) any repurchase of Capital Stock of the
Issuer after the date of issuance of the
Securities pursuant to the terms of the
Stockholders' Agreement from officers and
employees (or their estates) of the Issuer or its
Subsidiaries upon death, disability or termin-
ation of employment of such officers and
employees; PROVIDED, HOWEVER, that (A) the
aggregate amount of all such repurchases
(excluding repurchases made with proceeds of life
insurance policies maintained by the Issuer on
such employees or officers) in any fiscal year
shall not exceed $500,000; (B) to the extent that
the aggregate amount of such repurchases
(excluding repurchases made with proceeds of life
insurance policies maintained by the Issuer on
such employees or officers) in any fiscal year is
less than $500,000, the difference between
$500,000 and such amount may be carried forward
and applied to repurchases in subsequent fiscal
years; and (C) all such repurchases shall be
included in the calculation of the amount of
Restricted Payments made since the date of
issuance of the Securities;
(vi) Cash dividends paid after the date of
issuance of the Securities with respect to the
ESOP Preferred Stock; PROVIDED, HOWEVER, that
(A) the aggregate amount of all such dividends
paid in any fiscal year shall not exceed
$500,000; (B) to the extent that the aggregate
amount of such dividends paid in any fiscal year
is less than $500,000, the difference between
$500,000 and such amount may be carried forward
and applied to the payment of such dividends in
subsequent fiscal years; and (C) all such
dividends shall be included in the calculation of
the amount of Restricted Payments made since the
date of issuance of the Securities;
(vii) Investments in Non-Recourse
Subsidiaries, not to exceed $5,000,000 in the
aggregate during the term of this Indenture;
PROVIDED, HOWEVER, that all such Investments
shall be excluded in the calculation of the
amount of Restricted Payments made since the date
of issuance of the Securities; or
(viii) Restricted Payments not to exceed
$5,000,000 in the aggregate during the term of
this Indenture; PROVIDED, HOWEVER, that all such
Restricted Payments shall be included in the
calculation of the amount of Restricted Payments
made since the date of issuance of the
Securities.
SECTION 4.05. LIMITATION ON SENIOR SUBORDINATED
DEBT. The Issuer shall not, and shall not permit any Subsidiary
to, issue, directly or indirectly, any Debt that is expressly
subordinate in right of payment to any Superior Debt unless such
Debt, by its terms or by the terms of any agreement or instrument
pursuant to which such Debt is outstanding, is expressly made
PARI PASSU with, or subordinate in right of payment to, the
Securities, pursuant to provisions substantially similar to those
contained in Article 10 of this Indenture; PROVIDED, that the
foregoing limitation shall not apply to distinctions between
categories of Superior Debt of the Issuer that exist by reason of
any Liens arising or created in respect of some but not all of
such Superior Debt.
SECTION 4.06. LIMITATION ON DEBT. (a) The
Issuer shall not issue, directly or indirectly, any Debt unless
the Consolidated EBITDA Coverage Ratio (as shown by a
consolidated pro forma income statement of the Issuer and its
consolidated Subsidiaries for the Reference Period after giving
effect to (i) the issuance of such Debt and (if applicable) the
application of the net proceeds thereof to refinance other Debt
as if such Debt was issued and the application of such proceeds
occurred at the beginning of the Reference Period, (ii) the
issuance and retirement of any other Debt since the last day of
the most recent fiscal quarter covered by such income statement
as if such Debt was issued or retired at the beginning of the
Reference Period and (iii) the acquisition or disposition of any
company or business acquired or disposed of by the Issuer since
the first day of the Reference Period, including any acquisition
or disposition which will be consummated substantially
contemporaneously with the issuance of such Debt, as if such
acquisition or disposition occurred at the beginning of the
Reference Period), exceeds 1.75 to 1.0 for the Reference Period.
(b) Notwithstanding Section 4.06(a), the Issuer
may issue the following Debt:
(1) Debt issued as working capital and letter of
credit financing in an aggregate principal amount
outstanding at any time not to exceed the greater
of (i) the sum of (A) 85% of the book value of
the net trade receivables of the Issuer and its
Subsidiaries and (B) $7.5 million or (ii) up to
$27.5 million of Debt incurred pursuant to the
terms of the New Credit Agreement and Debt issued
in exchange for, or the proceeds of which are
used to refund or refinance, the Debt permitted
by this clause (ii);
(2) Debt owed to and held by a Wholly Owned
Subsidiary; PROVIDED, HOWEVER, that any
subsequent issuance or transfer of any Capital
Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned
Subsidiary or any transfer of such Debt (other
than to a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the issuance
of such Debt by the Issuer;
(3) the Securities and Debt issued in exchange
for, or the proceeds of which are used to refund
or refinance, any Debt permitted by this
clause (3); PROVIDED, HOWEVER, that (i) the
principal amount of the Debt so issued shall not
exceed the principal amount of the Debt so
exchanged, refunded or refinanced and (ii) the
Debt so issued (A) shall not mature prior to the
Stated Maturity of the Debt so exchanged,
refunded or refinanced and (B) shall have an
Average Life equal to or greater than the
remaining Average Life of the Debt so exchanged,
refunded or refinanced; and
(4) Debt (other than Debt described in
clause (1),(2) or (3) of this Section)
outstanding on the date of issuance of the
Securities and Debt issued in exchange for, or
the proceeds of which are used to refund or
refinance, any Debt permitted by this clause (4);
PROVIDED, HOWEVER, that (i) the principal amount
of the Debt so issued shall not exceed the
principal amount of the Debt so exchanged,
refunded or refinanced and (ii) the Debt so
issued (A) shall not mature prior to the Stated
Maturity of the Debt so exchanged, refunded or
refinanced, (B) shall have an Average Life equal
to or greater than the remaining Average Life of
the Debt so exchanged, refunded or refinanced and
(C) shall be subordinated in right of payment to
the Securities if the Debt so exchanged, refunded
or refinanced is so subordinated; and
(5) Debt in an aggregate principal amount which,
together with all other Debt of the Issuer then
outstanding (other than Debt permitted by
clauses (1) through (4) of this paragraph) does
not exceed the greater of: (i) $40,000,000 and
(ii) 10% of Consolidated Net Tangible Assets as
of the end of the most recent fiscal quarter of
the Issuer ending not less than 45 days from the
date of determination.
The Issuer may issue Debt to finance the reason-
able underwriting fees and other transaction fees incurred by the
Issuer in connection with the issuance of the Debt referred to in
clauses (3) and (4) so long as the issuance of such Debt complies
with Section 4.06.
SECTION 4.07. LIMITATION ON SUBSIDIARY DEBT AND
PREFERRED STOCK. The Issuer shall not permit any Subsidiary to
issue, directly or indirectly, any Debt or Preferred Stock
except:
(1) Debt or Preferred Stock issued to and held
by the Issuer or a Wholly Owned Subsidiary;
PROVIDED, HOWEVER, that (i) any subsequent
issuance or transfer of any Capital Stock which
results in any such Wholly Owned Subsidiary
ceasing to be a Wholly Owned Subsidiary or (ii)
any subsequent transfer of such Debt or Preferred
Stock (other than to the Issuer or a Wholly Owned
Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt or Preferred
Stock by the issuer thereof;
(2) Debt or Preferred Stock of a Subsidiary
issued and outstanding on or prior to the date on
which such Subsidiary was acquired by the Issuer
(other than Debt or Preferred Stock issued as
consideration in, or to provide all or any
portion of the funds utilized to consummate, the
transaction or series of related transactions
pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Issuer);
(3) Debt or Preferred Stock issued and outstand-
ing on or prior to the date on which the
Securities were originally issued, other than
Debt or Preferred Stock described in clause (1)
or (2) of this Section;
(4) Non-Recourse Debt of a Non-Recourse Subsid-
iary issued after the date of this Indenture to
finance the acquisition of assets acquired after
the date hereof; and
(5) Debt or Preferred Stock issued in exchange
for, or the proceeds of which are used to refund
or refinance, Debt or Preferred Stock referred to
in the foregoing clause (2) or (3); PROVIDED,
HOWEVER, that (i) the principal amount of such
Debt or the liquidation value of such Preferred
Stock so issued shall not exceed the principal
amount or liquidation value of the Debt or
Preferred Stock so exchanged, refunded or
refinanced; (ii) the Debt or Preferred Stock so
issued (A) shall have a Stated Maturity later
than the Stated Maturity of the Debt or final
redemption date (if any) of the Preferred Stock
being exchanged, refunded or refinanced and
(B) shall have an Average Life equal to or
greater than the remaining Average Life of the
Debt or Preferred Stock being exchanged, refunded
or refinanced; (iii) the Debt so issued shall be
subordinate in right of payment to the Securities
if the Debt so exchanged, refunded or refinanced
is so subordinate; and (iv) Debt may not be
issued in exchange for, and the proceeds of such
Debt may not be used to refund or refinance,
Preferred Stock.
SECTION 4.08. LIMITATION ON RESTRICTIONS ON
DISTRIBUTIONS FROM SUBSIDIARIES. The Issuer shall not, and shall
not permit any Subsidiary to, create or otherwise cause or permit
to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends
or make any other distributions on its Capital Stock or pay any
Debt or other obligation owed to the Issuer or any Subsidiary,
(ii) make any loans or advances to the Issuer or any Subsidiary
or (iii) transfer any of its property or assets to the Issuer or
any Subsidiary, except:
(1) any encumbrance or restriction pursuant to
an agreement in effect on the date hereof;
(2) any encumbrance or restriction with respect
to a Subsidiary pursuant to an agreement relating
to any Debt issued by such Subsidiary on or prior
to the date on which such Subsidiary became a
Subsidiary or was acquired by the Issuer (other
than Debt issued as consideration in, or to
provide all or any portion of the funds utilized
to consummate, the transaction or series of
related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by
the Issuer) and outstanding on such date;
(3) any encumbrance or restriction pursuant to
an agreement effecting a refinancing of Debt
issued pursuant to an agreement referred to in
clause (1) or (2) of this Section; PROVIDED,
HOWEVER, that the encumbrances and restrictions
contained in any such refinancing agreement are
no less favorable to the Securityholders than the
encumbrances and restrictions contained in the
agreements being refinanced;
(4) any such encumbrance or restriction consist-
ing of customary nonassignment provisions in
leases governing leasehold interests to the
extent such provisions restrict the transfer of
the lease;
(5) restrictions contained in security
agreements securing Debt of a Subsidiary to the
extent such restrictions restrict the transfer of
the property subject to such security agreements;
and
(6) any such encumbrance or restriction relating
to a Non-Recourse Subsidiary.
SECTION 4.09. LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Issuer shall not, and shall not
permit any Subsidiary to, make any Asset Disposition unless
(i) the Issuer or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors
(including a determination as to the value of all non-Cash
consideration), of the shares and assets subject to such Asset
Disposition, and at least 90% of the consideration therefor
received by the Issuer or such Subsidiary is in the form of Cash
or Cash equivalents and (ii) an amount equal to 100% of the Net
Available Cash from such Asset Disposition is applied by the
Issuer (or such Subsidiary, as the case may be) either (A) to the
extent the Issuer elects (or is required by the terms of any
Senior Debt), to redeem, prepay, repay or purchase Senior Debt or
Debt of a Wholly Owned Subsidiary to the extent the asset
disposed of was previously held by such Wholly Owned Subsidiary
(in each case other than Debt owed to the Issuer or an Affiliate
of the Issuer) within 60 days (or such other period as may be
required for compliance with Section 4.12 of the First Mortgage
Bonds Indenture) from the later of the date such Asset
Disposition or the receipt of such Net Available Cash; or (B) to
the extent of Net Available Cash not so applied in accordance
with clause (A), to the acquisition by the Issuer or any Wholly
Owned Subsidiary of Tangible Property of a nature or type or that
is used in a business (or in a company having property and assets
of a nature or type, or engaged in a business) similar or related
to the nature or type of the Tangible Property of, or the
business of, the Issuer and its Subsidiaries existing on the date
of such acquisition (as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board
Resolution); and (C) to the extent there is Net Available Cash
after application in accordance with clauses (A) and (B), to make
an Offer (as defined below) to purchase Securities pursuant to
and subject to the conditions of the following paragraph and to
effect any Offer accepted, in each case within one year from the
later of the receipt of such Net Available Cash and the date the
Offer described in Section 4.09(b) is consummated; PROVIDED,
HOWEVER, that in connection with any redemption, prepayment,
repayment or purchase of Debt pursuant to clause (A) above, the
Issuer shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so
redeemed, prepaid, repaid or purchased. Notwithstanding the
foregoing provisions of this Section, the Issuer and its
Subsidiaries shall only be required to apply Net Available Cash
in accordance with this Section to the extent that the aggregate
Net Available Cash from all Asset Dispositions exceeds
$25,000,000. Pending application of Net Available Cash pursuant
to this Section, such Net Available Cash shall be invested in
Permitted Investments.
(b) To the extent that there is Net Available
Cash from an Asset Disposition remaining after (i) any elected or
required payment of Senior Debt or Debt of a Wholly Owned
Subsidiary as described in Section 4.09(a)(ii)(A) and (ii) any
acquisition of Tangible Property as described in Section
4.09(a)(ii)(B), the Issuer will be required to purchase
Securities tendered pursuant to an offer by the Issuer for the
Securities (the "Offer") at a purchase price equal to not less
than 100% of their principal amount, plus accrued interest to the
Purchase Date (subject, in each case, to the right of Holders of
record on the relevant date to receive interest due on the
relevant interest Payment Date), in accordance with the
procedures (including prorating in the event of oversubscription)
set forth in Section 4.09(c). If the aggregate purchase price of
Securities tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities, the
Issuer shall apply the remaining Net Available Cash in accordance
with Section 4.09(a)(ii)(A) or (B). The Issuer shall not be
required to make an Offer for Securities pursuant to this Section
if the Net Available Cash available therefor (after application
of proceeds as provided in Section 4.09(a)(ii)(A) and (B)) is
less than $5,000,000 for any particular Asset Disposition (which
lesser amounts shall not be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 90
days (or such other period as may be required for compliance with
Section 4.12 of the First Mortgage Bonds Indenture) after the
later of the date of each Asset Disposition as to which the
Issuer must apply Net Available Cash in accordance with
Section 4.09(a)(ii)(C) or the receipt of Net Available Cash
therefrom, the Issuer shall be obligated to deliver to the
Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities
purchased by the Issuer either in whole or in part (subject to
prorationing as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price specified in Sec-
tion 4.09(b). The notice containing an Offer shall specify a
purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date") and shall contain
information concerning the business of the Issuer which the
Issuer in good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (i) the most
recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Issuer, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current
Report on Form 8-K of the Issuer filed subsequent to such
Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or
corresponding successor reports), or if the Issuer becomes no
longer subject to the Exchange Act, equivalent information,
(ii) a description of material developments in the Issuer's
business subsequent to the date of the latest of such Reports,
and (iii) if material, appropriate pro forma financial in-
formation) and all instructions and materials necessary to tender
Securities pursuant to the Offer, together with the information
contained in clause (3) of this Section 4.09(c).
(2) Not later than the date upon which written
notice of an Offer is delivered to the Trustee as provided below,
the Issuer shall deliver to the Trustee an Officers' Certificate
as to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of
Section 4.09(a). On such date, the Issuer shall also irrevocably
deposit in trust with the Trustee or with a paying agent (or, if
the Issuer is acting as its own paying agent, segregate and hold
in trust) in immediately available funds an amount equal to the
Offer Amount to be held by the Trustee or with a paying agent in
trust for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Issuer shall deliver to
the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Issuer. The
Trustee shall, on the Purchase Date, to the extent it has
received sufficient funds from the Issuer, mail payment to each
Holder who has surrendered Securities to the Issuer as provided
in paragraph(3) below in the amount of the purchase price. In
the event that the aggregate purchase price of the Securities
delivered by the Issuer to the Trustee is less than the Offer
Amount, the Trustee shall deliver the excess to the Issuer
immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security
purchased will be required to surrender the Security, with an
appropriate form duly completed, to the Issuer at the address
specified in the notice at least ten Business Days prior to the
Purchase Date. Holders will be entitled to withdraw their
election if the Trustee or the Issuer receives not later than
three Business Days prior to the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such
Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the
aggregate principal amount of Securities surrendered by Holders
exceeds the Offer Amount, the Issuer shall select the Securities
to be purchased on a pro rata basis in accordance with the
principles set forth in Section 3.04 (with such adjustments as
may be deemed appropriate by the Issuer so that only Securities
in denominations of $1,000, or integral multiples thereof, shall
be purchased). Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered.
(4) At the time the Issuer delivers Securities
to the Trustee which are to be accepted for purchase, the Issuer
will also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Ex-
change Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the
Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH
AFFILIATES. The Issuer shall not, and shall not permit any
Subsidiary to, conduct any business or enter into any transaction
or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any
service) with any Affiliate of the Issuer or any legal or
beneficial owner of five percent or more of any class of Capital
Stock of the Issuer or with any Affiliate of such owner (other
than a Wholly Owned Subsidiary of the Issuer or an employee stock
ownership plan for the benefit of the Issuer's or a Subsidiary's
employees) unless (i) the terms of such business, transaction or
series of transactions are (a) set forth in writing and (b) as
favorable to the Issuer or such Subsidiary as terms that would be
obtainable at the time for a comparable transaction or series of
related transactions in arm's-length dealings with an unrelated
third Person and (ii) the Board of Directors has, by resolution,
determined in good faith that such business or transaction or
series of related transactions meets the criteria set forth in
(i) above. This Section, however, will not prohibit any dividend
or distribution permitted under Section 4.04 hereof.
SECTION 4.11. CHANGE OF CONTROL. (a) Upon a
Change of Control, each Holder shall have the right to require
that the Issuer repurchase such Holder's Securities at a purchase
price in Cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant date
to receive interest due on the relevant interest Payment Date),
in accordance with the terms contemplated in Section 4.11(b).
(b) Within 30 days following any Change of Con-
trol, the Issuer shall mail a notice to each Holder with a copy
to the Trustee stating:
(1) that a Change of Control has occurred and
that such Holder has the right to require the
Issuer to purchase all or part of such Holder's
Securities at a purchase price in Cash equal to
100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of
record on the relevant record date to receive
interest due on the relevant interest Payment
Date);
(2) the circumstances and relevant facts regard-
ing such Change of Control (including, but not
limited to, information with respect to pro forma
historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) the repurchase date (which shall be a Busi-
ness Day no earlier than 30 days nor later than
60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer,
consistent with this Section, that a Holder must
follow in order to have its Securities purchased.
(c) Holders electing to have a Security
purchased will be required to surrender the Security, with an
appropriate election form duly completed, to the Issuer at the
address specified in the notice at least 10 Business Days prior
to the purchase date. Holders will be entitled to withdraw their
election if the Trustee or the Issuer receives not later than
three Business Days prior to the purchase date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such
Holder is withdrawing its election to have such Security
purchased.
(d) On the purchase date, all Securities pur-
chased by the Issuer under this Section shall be delivered by the
Trustee for cancellation, and the Issuer shall pay the purchase
price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.
(e) The Issuer shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Ex-
change Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this
Section 4.11. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this
Section, the Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 4.12. APPOINTMENT OF AGENTS. As long as
any of the Securities remain Outstanding, the Issuer will
maintain one or more agencies where notices and demands (other
than in respect of payment on the Securities) by Holders of
Securities to or upon the Issuer in respect of the Securities or
this Indenture may be served and where the Securities may be
presented for payment by the Issuer and for registration of
transfer and for exchange as in this Indenture provided. In
addition, the Issuer hereby appoints the Trustee at its Corporate
Trust Office as the paying agent of the Issuer, but the Issuer
shall have the right at any time and from time to time to vary or
terminate any such appointment as paying agent and to appoint
additional and other such agents. The Issuer will give to the
Trustee notice of the location of such additional and other
offices or agencies of the Issuer and of any change in the
location of any of such offices or agencies. No agent appointed
by the Issuer pursuant to this Section 4.12 shall be liable to
the Issuer or to the Holder of any Security except in the case of
its own negligent action, its own negligent failure to act or its
own willful misconduct.
The Issuer hereby appoints the Trustee as
Security Registrar and paying agent for the Securities. The
Corporate Trust Office of the Trustee, at the date of this
Indenture, is at 114 West 47th Street, 15th Floor, New York, New
York 10036-1532, Attention: Corporate Trust Division.
The Issuer agrees that at least one of the agen-
cies where the notices and demands referred to in this
Section 4.12 may be served will, for as long as any of the
Securities remain Outstanding, be maintained in New York, New
York. The Issuer hereby initially appoints the Trustee at its
Corporate Trust Office as its agent for receipt of such notices
and demands.
SECTION 4.13. PAYING AGENTS TO HOLD FUNDS IN
TRUST. Whenever the Issuer shall appoint a paying agent other
than the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this
Section 4.13,
(a) that it will hold all sums held by it as
such agent for the payment of the principal of,
and interest on the Securities in trust for the
benefit of the Holders of the Securities or the
Trustee and will notify the Trustee of the
receipt of sums to be so held, and
(b) that it will give the Trustee notice of any
failure by the Issuer to make any payment of the
principal of, or interest on, the Securities when
the same shall be due and payable.
SECTION 4.14. APPOINTMENT OF TRUSTEE BY ISSUER.
Whenever necessary to avoid or fill a vacancy in the office of
the Trustee, the Issuer will appoint, in the manner provided in
Section 7.08, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 4.15. AVAILABILITY OF INFORMATION. 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 the Holders of the Securities. From time to
time, whenever reasonably requested by the Trustee, but in any
event at intervals of not more than six months, the Issuer will
furnish or make available to the Trustee such information as may
be necessary to permit the Trustee to carry out its duties
hereunder. If at any time the Trustee shall not be the Security
Registrar, the Issuer will furnish or cause to be furnished to
the Trustee monthly not later than five Business Days before each
Payment Date, and at such other times as the Trustee may
reasonably request, a list in such form as the Trustee may
reasonably require of the names and addresses of Holders of
Securities as of the Record Date for such Payment Date.
SECTION 4.16. BOOKS OF ACCOUNT; INSPECTION BY
THE TRUSTEE; NOTICES; STATEMENTS AS TO COMPLIANCE. (a) The
Issuer will keep or cause to be kept proper books of record and
account, in which full, true and correct entries shall be made of
all dealings or transactions of or in relation to the Securities.
(b) The Issuer shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Issuer
an Officers' Certificate stating whether or not the signers know
of any Default or Event of Default that occurred during such
period, describing such Default or Event of Default, if any, and
its status.
(c) The Issuer agrees promptly to give notice to
the Trustee of:
(i) the occurrence of any Default or Event of
Default;
(ii) any (A) default (after any applicable
grace period has expired) under any material
provision of any agreement, instrument or
undertaking to which the Issuer or a Subsidiary
is a party or by which any of them or any of
their respective properties is bound or
(B) litigation, investigation or proceeding which
may exist at any time between the Issuer or a
Subsidiary and any Person, which default or
litigation, if adversely determined, could have a
material adverse effect on the business,
operations or condition, financial or otherwise,
of the Issuer and its Subsidiaries, taken as a
whole, or any of their properties;
(iii) any litigation or proceeding affecting
the Issuer or a Subsidiary in which the amount
involved is $500,000 or more and is either not
covered by insurance or is covered by insurance
as to which the insurer has disclaimed liability
or in which injunctive or similar relief is
sought; or
(iv) a material adverse change in the
business, operations or condition, financial or
otherwise, of the Issuer and its Subsidiaries,
taken as a whole.
Each notice given pursuant to this Section 4.16(c) shall be
accompanied by an Officers' Certificate setting forth details of
the occurrence referred to therein and stating what action, if
any, the Issuer proposes to take with respect thereto.
The statements and other information furnished to
the Trustee under this Section are to be retained by the Trustee
in its files. Copies of such information pursuant to this
Section shall be provided by the Trustee upon request only to the
Holders of Securities at the Issuer's expense or their duly
designated representatives or agents, and the Trustee shall be
under no other duty with respect to the same.
Section 4.17 PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer will, and will cause each of its Subsidiaries to, pay
or discharge or cause to be paid or discharged, before any fines
or penalties are imposed, (a) all taxes, assessments and
governmental charges levied or imposed upon it or upon its
income, profits or property and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
Lien upon its property in such amount as may be material to the
Issuer; PROVIDED, HOWEVER, that the Issuer shall have the right,
at its sole cost and expense, to contest or object in good faith
to the amount or validity of any tax, assessment, charge or claim
by appropriate legal proceedings for which appropriate pro-
visions, if any, as shall be required by generally accepted
accounting principles, shall have been made, but such right shall
not be deemed or construed in any way as relieving, modifying or
extending the Issuer's covenant to pay such tax, assessment,
charge or claim at the time and in the manner provided in this
Section, unless the Issuer has given prior written notice to the
Trustee of its intent so to contest or object.
SECTION 4.18 CORPORATE EXISTENCE AND RIGHTS.
The Issuer will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve and keep in
full force and effect its existence and franchises; PROVIDED,
HOWEVER, that the Issuer shall not be required to preserve any
such franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material
respect to the Holders of the Securities and shall deliver to the
Trustee an Officers' Certificate to that effect; PROVIDED,
FURTHER, HOWEVER, that this Section 4.18 shall not prohibit the
merger of a Subsidiary into another Subsidiary or the merger of a
Subsidiary into the Issuer. Any determination by the Issuer
reflected in an Officers' Certificate delivered to the Trustee
pursuant to the first proviso of this Section 4.18 shall be
binding on the Trustee.
SECTION 4.19.MAINTENANCE OF PROPERTIES. The
Issuer shall cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Issuer
may be necessary so that the business carried on in connection
therewith may be properly conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Issuer
from (or require the Issuer to cause any Subsidiary to avoid)
discontinuing the operation or maintenance or disposing of any of
such properties if such discontinuance or disposition is, in the
judgment of the Board of Directors or the board of directors of
the Subsidiary concerned, or of any officer (or other agent
employed by the Issuer or any Subsidiary) having been delegated
corporate authority for any such property, in each case, in good
faith, desirable in the conduct of its business or the business
of any Subsidiary.
SECTION 4.20.MAINTENANCE OF INSURANCE. The
Issuer shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature
insured (including appropriate self-insurance) against loss or
damage with insurers believed by the Issuer to be responsible to
the extent that property of similar character is usually so
insured by corporations similarly situated and owning like
properties in accordance with good business practice unless such
failure to provide or cause to be provided such insurance would
not have a material adverse effect on the business affairs,
financial position, stockholder's equity or results of operations
of the Issuer and its Subsidiaries, considered on a consolidated
basis.
SECTION 4.21. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT. Upon any request or application by the
Issuer to the Trustee to take any action under this Indenture,
the Issuer shall furnish to the Trustee upon the Trustee's
request:
(1) an Officers' Certificate, in form and sub-
stance reasonably satisfactory to the Trustee,
stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in
this Indenture relating to the proposed action
have been complied with;
(2) an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, stating
that, in the opinion of such counsel, all such
conditions precedent have been complied with; and
(3) if appropriate, a certificate from Indepen-
dent Accountants.
SECTION 4.22. STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION. Each certificate or opinion with regard to
compliance with a covenant or condition provided for in this
Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such
Person, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not
such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the
opinion of such Person, such covenant or
condition has been complied with.
SECTION 4.23. FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Issuer will execute and deliver
such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of
Default" occurs if:
(1) the Issuer defaults in the payment of inter-
est on any Security when the same becomes due and
payable, whether or not such payment shall be
prohibited by Article 10, and such default
continues for a period of 30 days;
(2) the Issuer (i) defaults in the payment of
the principal of any Security when the same
becomes due and payable at its Stated Maturity,
upon redemption, upon declaration or otherwise or
(ii) fails to redeem or purchase Securities when
required pursuant to this Indenture or the
Securities, in either case whether or not such
payment shall be prohibited by Article 10;
(3) the Issuer fails to comply with the require-
ments for consolidation, merger or conveyance,
transfer or lease of all or of substantially all
of the Issuer's assets, as set forth in
Article Nine;
(4) the Issuer fails to observe or perform any
of its covenants or agreements set forth in the
Securities or in this Indenture (other than those
referred to in clauses (1), (2) or (3) above) and
the Default continues for a period of 30 days
after the notice specified below;
(5) Debt of the Issuer or any of its
Subsidiaries is not paid within any applicable
grace period after final maturity or is
accelerated by the holders thereof because of a
default, the total amount of such Debt unpaid or
accelerated exceeds $5,000,000 or its foreign
currency equivalent and such default continues
for 10 days after the notice specified below;
(6) the Issuer or any of its Subsidiaries pursu-
ant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a custodian
of it or for any substantial part of its
property; or
(D) makes a general assignment for the benefit
of its creditors;
or takes any comparable action under any foreign
laws relating to insolvency;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any of
its Subsidiaries in an involuntary case;
(B) appoints a custodian of the Issuer or any of
its Subsidiaries or for any substantial part of
their respective property; or
(C) orders the winding up or liquidation of the
Issuer or any of its Subsidiaries;
or any similar relief is granted under any
foreign laws and the order or decree remains
unstayed and in effect for 60 days;
(8) any judgment or decree for the payment of
money in excess of $5,000,000 is rendered against
the Issuer or any of its Subsidiaries and is not
discharged and either (A) an enforcement
proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a
period of 60 days following such judgment or
decree during which such judgment or decree is
not discharged, waived or the execution thereof
stayed and, in the case of (B), such default
continues for 10 days after the notice specified
below.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or other
order, rule or regulation of any administrative or governmental
body.
Notwithstanding the foregoing, a Default under
clause (4), (5) or (8)(B) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Issuer of the Default and the Issuer does
not cure such Default within the time specified after receipt of
such Notice. Such Notice must specify the Default, demand that
it be remedied and state that such Notice is a "Notice of
Default".
The Issuer shall deliver to the Trustee, within
30 days after the occurrence thereof, written notice in the form
of an Officers' Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default
under clause (4), (5) or (8) hereof, its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02.ACCELERATION. If an Event of
Default (other than an Event of Default specified in Sec-
tion 5.01(6) or (7) with respect to the Issuer) occurs and is
continuing, the Trustee by notice to the Issuer, or the Holders
of at least 25% in principal amount of the Outstanding Securities
by notice to the Trustee and the Issuer may declare the unpaid
principal of and accrued interest on all the Securities and all
other amounts due hereunder or thereunder to be due and payable;
PROVIDED that upon the occurrence of an Event of Default
described in clause (6) or (7) of Section 5.01, the principal of
and accrued interest on all of the Securities shall automatically
become due and payable, without presentment, demand or other
requirements of any kind, all of which are hereby expressly
waived by the Issuer. Upon such a declaration, such principal,
interest and all other amounts shall be due and payable
immediately.
The Holders of a majority in principal amount of
the Securities by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not
conflict with any judgment or decree, if no amounts have been
paid to the Holders as principal or interest on the Securities as
a result of such acceleration, and if all existing Events of
Default have been cured or waived pursuant to the terms of this
Indenture except nonpayment of principal or interest that has
become due solely because of acceleration.
SECTION 5.03. OTHER REMEDIES. If an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity or otherwise
to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Holder of Securities in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 5.04. WAIVER OF PAST DEFAULTS. Subject
to Section 8.02, the Holders of a majority in principal amount of
the Outstanding Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except
(a) a Default in the payment of the principal of, or interest on
a Security or (b) a Default in respect of any covenant or
provision of this Indenture that under Section 8.02 cannot be
amended or modified without the consent of the Holder of each
Security affected thereby. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
consequent right.
SECTION 5.05. CONTROL BY MAJORITY. The Holders
of a majority in principal amount of the Securities may direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or
power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability.
SECTION 5.06. LIMITATION ON SUITS. A Holder of
Securities may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written
notice stating that an Event of Default is
continuing;
(2) the Holders of at least 25% in principal
amount of the Securities make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any
loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and
the offer of security or indemnity; and
(5) the Holders of a majority in principal
amount of the Securities do not give the Trustee
a direction inconsistent with the request during
such 60-day period.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or
priority over another Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAY-
MENT. Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and
interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected adversely
without the consent of such Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE. If an
Event of Default in payment of interest or principal specified in
Section 5.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express
trust against the Issuer (or any other obligor upon the
Securities) for the whole amount of principal and interest
remaining unpaid and the amounts provided for in Section 7.07.
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 5.10. PRIORITIES. If the Trustee col-
lects any money pursuant to this Article, it shall pay out the
money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.07, including payment of all
compensation, expenses and liabilities incurred,
and all advances made, by the Trustee and the
costs and expenses of collection;
SECOND: to Securityholders for the payment of
the whole amount then owing and unpaid upon the
Securities for principal and interest; and in
case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the
Securities, then to the payment of such principal
and interest, without preference or priority of
principal over interest, or interest over
principal, or of any Interest Payment over any
other Interest Payment, or of any Securities over
any other Securities, ratably to the aggregate of
such principal and interest;
THIRD: to the payment of any remaining Obliga-
tions; and
FOURTH: the balance, if any, to the Issuer, its
successors or assigns or to whomsoever may be
lawfully entitled to receive the same, or as a
court of competent jurisdiction may determine.
The Trustee may fix a record date and payment
date for any payment to Securityholders pursuant to this Section.
At least 15 days before such record date, the Issuer shall mail
to each Securityholder a notice that states the record date, the
payment date and amount to be paid.
SECTION 5.11. UNDERTAKING FOR COSTS. In any
suit for the enforcement of any right or remedy under this Inden-
ture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 5.07 or a suit by Holders
of more than 10% in aggregate principal amount of the Securities
then Outstanding.
SECTION 5.12. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 6.01. DISCHARGE OF LIABILITY ON SECURI-
TIES; DEFEASANCE. When (i) the Issuer delivers to the Trustee
all Outstanding Securities (other than Securities replaced
pursuant to Section 2.07) for cancellation or (ii) all
Outstanding Securities have become due and payable and the Issuer
irrevocably deposits or causes to be deposited with the Trustee
funds sufficient to pay at maturity all Outstanding Securities,
including interest thereon (other than Securities replaced
pursuant to Section 2.07) solely for the benefit of the Holders
for such purpose, and if in either case the Issuer pays all other
Obligations, then this Indenture shall, subject to
Sections 6.01(c) and 6.06, cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Issuer.
(b) Subject to Sections 6.01(c), 6.02 and 6.06,
the Issuer at any time may terminate (i) all its obligations
under the Securities and this Indenture ("legal defeasance
option") or (ii) its obligations under Sections 4.01, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 (with respect to
clauses (a) and (c)(ii) through (c)(iv)), 4.17, 4.18 (as to
Subsidiaries), 9.01 (iii) and 9.01(iv) and the operation of
5.01(4) (with respect to those provisions of Article Four cited
in this clause (ii)) 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) and 5.01(8)
("covenant defeasance option"). The Issuer may exercise its
legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Issuer exercises its legal defeasance
option, payment of the Securities may not be accelerated because
of an Event of Default. If the Issuer exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in 5.01(4)
(with respect to those provisions of Article Four cited in
clause (ii) above), 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) or 5.01(8)
or because of the failure of the Issuer to comply with
Section 9.01(iii) or 9.01(iv).
Upon satisfaction of the conditions set forth
herein and upon request of the Issuer, the Trustee shall
acknowledge in writing the discharge of those obligations that
the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above,
the Issuer's obligations in Sections 2.06, 2.07, 2.09, 4.12,
4.13, 4.14, 4.15, 4.16 (with respect to clauses (b) and (c)(i)),
4.19, 4.20, 6.04, 6.05, 6.06, 7.07 and 7.08, shall survive until
the Securities have been paid in full. Thereafter, the Issuer's
obligations in Sections 6.04, 6.05 and 7.07 shall survive.
SECTION 6.02. CONDITIONS TO DEFEASANCE. The
Issuer may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Issuer irrevocably deposits in trust
with the Trustee Cash or U.S. Government
Obligations for the payment of principal of, and
interest on, the Securities to the date of
maturity or redemption, as the case may be;
(2) the Issuer delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion
that the payments of principal and interest when
due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited
Cash without investment will provide Cash at such
times and in such amounts (but, in the case of
the legal defeasance option only, not more than
such amounts) as will be sufficient to pay
principal and interest when due on all Securities
to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in
Section 5.01(6) or (7) with respect to the Issuer
occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on
the date of such deposit and after giving effect
thereto;
(5) the deposit does not constitute a default
under any other agreement binding on the Issuer;
(6) the Issuer delivers to the Trustee an
Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute,
or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(7) in the case of the legal defeasance option,
the Issuer shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published
by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has
been a change in the applicable federal income
tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not
recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same time
as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance op-
tion, the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that
the Securityholders 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 time
as would have been the case if such covenant
defeasance had not occurred; and
(9) the Issuer delivers to the Trustee an Of-
ficers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the
defeasance and discharge of the Securities as
contemplated by this Article 6 have been complied
with.
Before or after a deposit, the Issuer may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 6.03. APPLICATION OF TRUST MONEY. The
Trustee shall hold in trust Cash or U.S. Government Obligations
deposited with it pursuant to this Article 6. It shall apply the
deposited Cash and the Cash from U.S. Government Obligations
through the paying agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 6.04. REPAYMENT TO ISSUER. The Trustee
and the paying agent shall promptly turn over to the Issuer upon
request any excess Cash or securities held by them at any time.
Subject to any applicable abandoned property law,
the Trustee and the paying agent shall pay to the Issuer upon
request any Cash held by them for the payment of principal or
interest that remains unclaimed for two years, and, thereafter,
Securityholders entitled to the Cash must look to the Issuer for
payment as general creditors.
SECTION 6.05. INDEMNITY FOR GOVERNMENT OBLIGA-
TIONS. The Issuer shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the Trustee with respect to deposited U.S. Government
Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 6.06. REINSTATEMENT. If the Trustee or
paying agent is unable to apply any Cash or U.S. Government
Obligations in accordance with this Article 6 by reason of any
legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations
under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this
Article 6 until such time as the Trustee or paying agent is
permitted to apply all such Cash or U.S. Government Obligations
in accordance with this Article 6; PROVIDED, HOWEVER, that, if
the Issuer has made any payment of interest on or principal of
any Securities because of the reinstatement of its obligations,
the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the Cash or U.S.
Government Obligations held by the Trustee or paying agent.
ARTICLE SEVEN
CONCERNING THE 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 such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the duties of the Trustee shall be
determined solely by the express provisions of
this Indenture, and the Trustee need perform only
those duties that are specifically set forth in
this Indenture and no others, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However,
the Trustee shall examine the certificates and
opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good
faith in accordance with a direction received by
it pursuant to Sections 5.02, 5.04 or 5.05.
(d) Every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b)
and (c) of this Section.
(e) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in
writing with the Issuer. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The
Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers; PROVIDED that
the Trustee's conduct does not constitute negligence.
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such work or direction.
(f) Unless otherwise specifically provided in
this Indenture, any demand, request, direction or notice from the
Issuer shall be sufficient if signed by an Officer of the Issuer.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it
were not Trustee. Any paying agent, Security Registrar or
Security Co-Registrar may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee
shall not be responsible for and makes no representation as to
the validity, adequacy or enforceability of this Indenture or the
Securities. The Trustee shall not be accountable for the
Issuer's use of proceeds from the Securities or any money paid to
the Issuer or upon the Issuer's direction under any provision of
this Indenture, the Trustee shall not be responsible for the use
or application of any money received from any paying agent other
than the Trustee, and the Trustee shall not be responsible for
any statement or recital herein or in the Securities or any other
document in connection with the sale of Securities or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default
or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Holder of
Securities, as their names and addresses appear on the Security
Register, notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default in payment
of principal of, or interest on, any Security, the Trustee may
withhold such notice if and so long as a committee of its Trust
Officers in good faith determines that the withholding of such
notice is in the interests of Holders of Securities. The Trustee
shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to
Section 5.01(1) or Section 5.01(2) of this Indenture, if the
Trustee is then acting as paying agent, or (ii) any Default or
Event of Default of which a Trust Officer shall have received
written notification from the Issuer or a Securityholder, and
such notification shall not be deemed to include receipt of
information contained in any report or other document furnished
under Section 4.03 of this Indenture.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As
promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior
to July 15 in each year, and within 12 months from the date the
prior report hereunder was transmitted to the Holders of
Securities, the Trustee shall mail to each Holder of Securities
in accordance with TIA section 313(c), a brief report dated as of
May 15 that complies with TIA section 313(a) (but if no event
described in TIA section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA
section 313(b).
A copy of each report at the time of its mailing
to Holders of Securities shall be filed with the SEC and each
stock exchange, if any, on which, to the Trustee's actual
knowledge, the Securities are listed; the Issuer agrees to notify
promptly the Trustee whenever the Securities become listed on any
stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The
Issuer shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon the
Trustee's request, in addition to compensation for its services
for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by it, including, without limitation,
the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents and counsel. The Issuer shall
indemnify the Trustee against any loss, liability or expense
incurred by it without negligence or bad faith on its part in
connection with the acceptance or the administration of this
trust and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder. The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity.
However, failure by the Trustee to so promptly notify the Issuer
shall not relieve the Issuer of its obligations under this
paragraph except to the extent such failure shall have materially
prejudiced the Issuer. The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. If the Trustee is
advised by counsel that it may have available to it defenses
which are in conflict with any defenses available to the Issuer,
then the Issuer may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel. The Issuer
need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. The Issuer need not
reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through negligence or bad faith.
To secure the Issuer's payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the
Securities on all Cash or property held or collected by the
Trustee, except that held in trust to pay principal and interest
on particular Securities.
The Issuer's payment obligations pursuant to this
Section 7.07 shall survive the discharge of this Indenture and
the resignation or removal of the Trustee. When the Trustee
incurs expenses or renders services after the occurrence of an
Event of Default specified in subsection 5.01(6) or (7), the
expenses and compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The
Trustee may resign and be discharged from the trust created
hereby by so notifying the Issuer. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may
remove the Trustee by so notifying the Trustee and the Issuer and
may appoint a successor Trustee. The Issuer may remove the
Trustee if:
(1) the Trustee fails to comply with Sec-
tion 7.10;
(2) the Trustee is adjudged bankrupt or insol-
vent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, then,
unless the Holders of Securities have appointed a Successor
Trustee as provided above, the Issuer shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the
Issuer. Immediately after receiving such acceptance, the
retiring Trustee shall 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, the resignation or removal of the retiring
Trustee shall then become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities. Notwithstanding
replacement of the Trustee pursuant to this Section, the Issuer's
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
If a successor Trustee does not take office
within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuer or the Holders of a majority in
aggregate principal amount of the Outstanding Securities may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10,
any Holder of Securities may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee. In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the
provisions contained in the proviso to Section 310(b)(1) shall be
deemed incorporated herein.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If
the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business
or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
sections 310(a)(1) and (a)(2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee
shall comply with TIA section 310(b) during the period of time
required thereby.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST CORPORATION. The Trustee shall comply with
TIA section 311(a), excluding any creditor relationship listed in
TIA section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. WITHOUT CONSENT OF HOLDERS. The
Issuer and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder of
Securities:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 9;
(3) to provide for uncertificated Securities in
addition to or in place of certificated
Securities;
(4) to make any change that does not adversely
affect the rights of any Holder of Securities; or
(5) to comply with any requirement of the SEC in
connection with the qualification of this
Indenture under the TIA.
After an amendment under this Section becomes
effective, the Issuer shall mail to Securityholders a notice
briefly describing such amendment. Failure to mail such notice
to all Securityholders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 8.02. WITH CONSENT OF HOLDERS. The
Issuer may amend or supplement this Indenture or the Securities
without notice to any Holder but with the written consent of the
Holders of at least a majority in aggregate principal amount of
the Outstanding Securities. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may
waive any past default or compliance by the Issuer with any
provision of this Indenture or the Securities without notice to
any Holder. However, without the consent of each Holder
affected, an amendment or supplement to this Indenture or waiver
may not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment, supplement
or waiver;
(2) reduce the rate of or extend the time for
payment of interest on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) make any Security payable in money other
than that stated in the Security;
(5) make any change in Article 10 that adversely
affects the rights of any Securityholder;
(6) change the time at which or circumstances
under which any Securities may be redeemed or re-
purchased;
(7) impair the right of any Securityholder to
receive payment of principal of and interest on
such Securityholders' Securities on or after the
due dates thereof or to institute suit for the
enforcement of any payment on or with respect to
such holders' securities;
(8) make any change in Section 5.04 or 5.07 or
this Section; or
(9) waive any Default in the payment of
principal of or interest on any Security.
It shall not be necessary for the consent of the
Holders of the Securities under this Section 8.02 to approve the
particular form of any proposed amendment or supplement, but it
shall be sufficient if such consent shall approve the substance
thereof.
An amendment under this Section may not make any
change that adversely affects the rights under Article 10 of any
holder of Superior Debt then outstanding unless the holders of
the issue required pursuant to its terms consent to such change.
After an amendment under this Section becomes
effective, the Issuer shall mail to Holders a notice briefly
describing such amendment. The failure to mail such notice to
all Holders shall not affect the validity of an amendment under
this Section.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE
ACT. Every amendment to or supplement of this Indenture executed
pursuant to this Article 8 shall comply with the TIA as then in
effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind such Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent as to such Holder's
Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or
waiver becomes effective. After an amendment, supplement or
waiver becomes effective, it shall bind every Holder unless it
makes a change described in clauses (1) through (6) of
Section 8.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security
that evidences the same Debt as the consenting Holder's Security.
The Issuer may, but shall not be obligated to,
fix a record date for the purpose of determining the Security-
holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons or
Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders
after such record date. No such consents shall be valid or
effective for more than 120 days after such record date.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURI-
TIES. If an amendment, supplement or waiver changes the terms of
a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms. Failure to make an appropriate notation or
issue a new Security shall not affect the validity and effect of
such amendment, supplement or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS. The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver 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 such
amendment, supplement or waiver is authorized or permitted by
this Indenture and that it is not inconsistent herewith and that
it will be valid and binding on the Issuer in accordance with its
terms.
SECTION 8.07. WAIVER OF COMPLIANCE BY HOLDERS.
Anything in this Indenture to the contrary notwithstanding, any
of the acts which the Issuer is required to do or is prohibited
from doing by any of the provisions of this Indenture may, to the
extent that such provisions might be changed or eliminated by a
supplemental indenture pursuant to Section 8.02 hereof upon
consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding, be omitted or
done by the Issuer if there is obtained the prior written consent
thereto of the Holders of a majority of the aggregate principal
amount of the Securities at the time Outstanding, or the prior
written waiver of compliance with any such provision or
provisions signed by such Holders. The Issuer agrees promptly to
file with the Trustee a duplicate original of each such consent
or waiver.
ARTICLE NINE
SUCCESSOR COMPANY
SECTION 9.01. WHEN ISSUER MAY MERGE OR TRANSFER
ASSETS. The Issuer shall not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee
Person (if not the Issuer) shall be a Person
organized and existing under the laws of the
United States of America, any state thereof or
the District of Columbia and such Person shall
expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the
obligations of the Issuer under the Securities
and this Indenture;
(ii) immediately prior to and after giving
effect to such transaction (and treating any Debt
which becomes an obligation of the resulting,
surviving or transferee Person or any Subsidiary
as a result of such transaction as having been
issued by such Person or such Subsidiary at the
time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such
transaction, the Consolidated EBITDA Coverage
Ratio of the Successor Company is at least 1:1;
provided, however, that, if the Consolidated
EBITDA Coverage Ratio of the Issuer before giving
effect to such transaction is within the range
set forth in column (A) below, then the
Consolidated EBITDA Coverage Ratio of the
Successor Company, as the case may be, shall be
at least equal to the lesser of (1) the ratio
determined by multiplying the percentage set
forth in column (B) below by the Consolidated
EBITDA Coverage Ratio prior to such transaction
and (2) the ratio set forth in column C below:
(A) (B)(C)
1.11:1 to 1.99:190%1.50:1
2.00:1 to 2.99:180%2.10:1
3.00:1 to 3.99:170%2.40:1
4.00:1 or more 60%2.50:1
(iv) immediately after giving effect to such
transaction, the resulting, surviving or
transferee Person shall have Consolidated Net
Worth in an amount which is not less than the
Consolidated Net Worth of the Issuer prior to
such transaction; and
(v) the Issuer shall have delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel prior to the consummation of such
transaction, each stating that such
consolidation, merger or transfer and such
supplemental indenture (if any) comply with this
Indenture.
The resulting, surviving or transferee Person
shall be the successor Issuer and shall succeed to, and be
substituted for, and may exercise every right and power of, the
Issuer under this Indenture, but the predecessor Issuer in the
case of a conveyance, transfer or lease shall not be released
from the obligation to pay the principal of and interest on the
Securities.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The
Issuer agrees, and each Holder by accepting a Security agrees,
that the Debt evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment of all Superior Debt and
that the subordination is for the benefit of the holders of
Superior Debt, but the Securities shall in all respects rank pari
passu with all other Senior Subordinated Debt of the Issuer. The
Securities shall rank senior to all existing and future Debt of
the Issuer which is neither Superior Debt nor Senior Subordinated
Debt and only Debt of the Issuer which is Superior Debt shall
rank senior to the Securities in accordance with the provisions
set forth herein.
SECTION 10.02. CERTAIN DEFINITIONS.
"Representatives" means any of United States National Bank of
Oregon, the Bond Trustee and any other trustee, agent or repre-
sentative for the holders of Superior Debt, and "Representative"
means any of them.
"Superior Debt" means (a) the principal of, and premium
(if any) and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Issuer whether or not a claim
for postfiling interest is allowed in such proceeding) on (i)
indebtedness of the Issuer for money borrowed, whether
outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, together with all
amounts for fees and expenses due to the agent banks under the
New Credit Agreement and other Representatives, and all
reimbursement and other contingent obligations with respect to
letters of credit issued in accordance with the New Credit
Agreement, (ii) guarantees by the Issuer of indebtedness for
money borrowed by any other Person, whether outstanding on the
date of execution of this Indenture or thereafter created,
incurred or assumed, (iii) obligations of the Issuer under any
agreement to lease, or any lease of, any real or personal
property, which in accordance with generally accepted accounting
principles, is classified upon the Issuer's consolidated balance
sheet as a liability, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, and (iv)
indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness for the payment of which the Issuer
is responsible or liable, by guarantees or otherwise, whether
outstanding of this Indenture or thereafter created, incurred or
assumed and (b) modifications, renewals, extensions, replacements
and refundings of any such indebtedness, obligations or
guarantees; unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligations or guarantees, or such modi-
fications, renewals, extensions or refundings thereof, are not
superior in right of payment to the Securities; PROVIDED,
HOWEVER, that Superior Debt shall not be deemed to include (1)
any obligation of the Issuer to any Subsidiary, (2) any accounts
payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities), (3) any indebtedness,
guarantee or obligation of the Issuer of the type described in
clause (a) or (b) above which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer or (4) the portion of any Debt issued in violation of
section 4.05 or 4.06 hereof.
"Senior Subordinated Debt" means the Securities and any
other indebtedness, guarantee or obligation of the Issuer of the
type described in clause (a) or (b) in the definition of Superior
Debt, which by its terms or the terms of the instrument creating
or evidencing the same or pursuant to which the same is
outstanding contains for the benefit of the holders of Superior
Debt provisions no less favorable to such holders than the
subordination provisions of the Securities and ranks PARI PASSU
with the Securities. Any indebtedness, guarantee or obligation
of the Issuer which is subordinate or junior in ranking in any
respect to any other such indebtedness, guarantee or obligation
will be subordinate to Senior Subordinated Debt unless the in-
strument creating or evidencing the same or pursuant to which the
same is outstanding specifically provides that such indebtedness,
guarantee or obligation is to rank PARI PASSU with other Senior
Subordinated Debt.
SECTION 10.03. LIQUIDATION, DISSOLUTION, BANK-
RUPTCY. Upon any distribution to creditors of the Issuer in a
liquidation or a total or partial dissolution of the Issuer or in
a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Issuer or its property:
(1) holders of Superior Debt shall be entitled
to receive payment in full of the Superior Debt
before Holders shall, subject to Section 10.14,
be entitled to receive any payment of principal
of, or interest on, the Securities (other than
shares of stock or subordinated indebtedness
provided by a plan of reorganization or
adjustment which does not alter the rights of
holders of Superior Debt); and
(2) until the Superior Debt is paid in full, any
distribution to which Holders would be entitled
but for this Article 10 shall be made to holders
of Superior Debt as their interests may appear,
except that Holders may receive securities that
are subordinated to Superior Debt to at least the
same extent as the Securities.
For purposes of this Section, "payment in full", as used with
respect to Superior Debt, means the receipt of cash or securities
(taken at their fair value at the time of receipt, determined as
hereinafter provided) of the principal amount of the Superior
Debt and premium, if any, and interest thereon to the date of
such payment. "Fair value" means (a) if the securities are
quoted on a nationally recognized securities exchange, the
closing price on the day such securities are received or, if
there are no sales reported on that day, the reported closing bid
price on that day, and (b) if the securities are not so quoted, a
price determined by a nationally recognized investment banking
house selected by the Holders and the holders of Superior Debt
receiving such securities, such price to be determined as of the
date of receipt of such securities by the holders of Superior
Debt.
SECTION 10.04. DEFAULT ON SUPERIOR DEBT. The
Issuer may not pay principal of or interest on, the Securities or
make any deposit pursuant to Section 6.01 and may not repurchase,
redeem or otherwise retire any Securities if (i) any Superior
Debt is not paid when due and such default is not cured or waived
or (ii) any other default on Superior Debt occurs and the
maturity of such Superior Debt is accelerated in accordance with
its terms and such acceleration is not rescinded. In addition,
during the continuance of an event of default with respect to any
Superior Debt pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, upon the receipt by
the Issuer and the Trustee of written notice thereof from or on
behalf of the holders of a majority in aggregate principal amount
of such Superior Debt, the Issuer may not for a period of 180
days from the receipt of such notice take any action which would
be prohibited by the first sentence of this Section if any
Superior Debt had not been paid; PROVIDED, HOWEVER, that nothing
in this Section shall have any effect on the rights of the
Holders to accelerate the maturity of the Securities pursuant to
Section 5.02; and PROVIDED FURTHER, that nothing in this sentence
shall prevent payment by the Issuer on the Securities after 120
days have passed following notice to the holders of Superior Debt
of such acceleration pursuant to Section 10.05.
SECTION 10.05. ACCELERATION OF PAYMENT OF SECURITIES.
If payment of the Securities is accelerated because of an Event
of Default, the Issuer or the Trustee shall promptly notify
holders of Superior Debt of the acceleration. The Issuer may not
pay the Securities until 120 days after the acceleration occurs
and, thereafter, may pay the Securities only if this Article 10
otherwise permits the payment at that time.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders that because of this Article
10 should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Superior Debt
and pay it over to them as their interests may appear.
SECTION 10.07. SUBROGATION. After all Superior Debt
is paid in full and until the Securities are paid in full,
Holders shall be subrogated to the rights of holders of Superior
Debt to receive distributions applicable to Superior Debt. A
distribution made under this Article 10 to holders of Superior
Debt which otherwise would have been made to Holders is not, as
between the Issuer and Holders, a payment by the Issuer on
Superior Debt.
SECTION 10.08. RELATIVE RIGHTS. This Article 10
defines the relative rights of Holders and holders of Superior
Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Holders,
the obligation of the Issuer, which is absolute
and unconditional, to pay principal and interest
on the Securities in accordance with their terms;
or
(2) prevent the Trustee or any Holder from exer-
cising its available remedies upon a Default,
subject to the rights of holders of Superior Debt
to receive distributions otherwise payable to
Holders.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED
BY ISSUER. No right of any holder of Superior Debt to enforce
the subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Issuer or
by its failure to comply with this Indenture.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING
AGENT. The Trustee or paying agent may continue to make payments
on the Securities unless, not less than two Business Days prior
to the date of such payment, it receives notice satisfactory to
it that payments may not be made under this Article 10. The
Issuer, the Security Registrar or Security Co-Registrar, the
paying agent, a Representative or a holder of Superior Debt may
give the notice; PROVIDED, HOWEVER, that if an issue of Superior
Debt has a Representative, only the Representative may give the
notice.
The Trustee in its individual or any other capacity may
hold Superior Debt with the same rights it would have if it were
not Trustee. The Security Registrar and Security Co-Registrar
and the paying agent may do the same with like rights.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRE-
SENTATIVE. Whenever a distribution is to be made or a notice
given to holders of Superior Debt, the distribution may be made
and the notice given to their Representative.
SECTION 10.12. ARTICLE 10 NOT TO PREVENT EVENTS
OF DEFAULT OR LIMIT RIGHT TO ACCELERATE. The failure to make a
payment pursuant to the Securities by reason of any provision in
this Article 10 shall not be construed as preventing the
occurrence of a Default or an Event of Default. Nothing in this
Article 10 shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities.
SECTION 10.13. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government
Obligations held in trust by the Trustee for the payment of
principal of, and interest on, the Securities shall not be
subordinated to the prior payment of any Superior Debt or subject
to the restrictions set forth in this Article 10 and none of the
Holders shall be obligated to pay over any such amount to the
Issuer or any holder of Superior Debt of the Issuer or any other
creditor of the Issuer.
SECTION 10.14. TRUSTEE ENTITLED TO RELY. Upon
any payment or distribution pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely (i) upon any
order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.03 are
pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the
Trustee or the Holders or (iii) upon the Representatives for the
holders of Superior Debt for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution,
the holders of the Superior Debt and other indebtedness of the
Issuer, 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. In the event that the Trustee
determines, in good faith, that evidence is required with respect
to the right of any Person as a holder of Superior Debt to par-
ticipate in any payment or distribution pursuant to this Article
10, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of
Superior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial deter-
mination as to the right of such Person to receive such payment.
The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to
this Article 10.
SECTION 10.15. TRUSTEE TO EFFECTUATE SUBORDINA-
TION. Each Holder by accepting a Security authorizes and directs
the Trustee on his behalf to take such action as may be requested
by the Issuer to acknowledge or effectuate the subordination
between the Holders and the holders of Superior Debt as provided
in this Article 10 and appoints the Trustee as attorney-in-fact
for any and all such purposes.
SECTION 10.16. TRUSTEE NOT CHARGED WITH
KNOWLEDGE OF PROHIBITION. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, but subject
to the provisions of Sections 7.01 and 7.02, the Trustee and any
paying agent shall not be charged with knowledge of the existence
of any Superior Debt, or of any default in the payment of the
principal of, premium, if any, or interest on, any Superior Debt,
or of any facts which would prohibit the making of any payment of
money to or by the Trustee or any such paying agent, unless and
until the Trustee or such paying agent shall have received at
least two Business Days prior to the date set for payment under
the terms of this Indenture written notice thereof from the
Issuer or a holder of any kind or category of any Superior Debt
or the Representative of such holder; nor shall the Trustee or
any such paying agent be charged with knowledge of the curing of
any such default or of the elimination of the fact or condition
preventing any such payment, unless and until the Trustee or such
paying agent shall have received an Officers' Certificate to such
effect. Nothing contained in this Section shall limit the rights
of holders of Superior Debt to recover payments pursuant to Sec-
tion 10.06. The Trustee shall be entitled to rely conclusively
on any notice received by it pursuant to this Article 10.
SECTION 10.17. RIGHTS OF TRUSTEE AS HOLDER OF
SUPERIOR DEBT. The Trustee shall be entitled to all the rights
set forth in this Article 10 with respect to any Superior Debt
which may at any time be held by it, to the same extent as any
other holder of Superior Debt; and nothing in Article 7 shall
deprive the Trustee of any of its rights as such holder. Nothing
in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.18. TRUSTEE NOT FIDUCIARY FOR HOLDERS
OF SUPERIOR DEBT. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Superior Debt and shall not be
liable to any such holders if it shall mistakenly pay over or
distribute to Holders or the Issuer or any other Person, money or
assets to which any holders of Superior Debt shall be entitled by
virtue of this Article 10 or otherwise. With respect to the
holders of Superior Debt, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are
specifically set forth in this Article 10, and no implied
covenants or obligations with respect to the holders of Superior
Debt shall be read into this Indenture against the Trustee.
Before the Trustee acts or refrains from acting under this
Article 10, it may consult with counsel and may require an
Officers' Certificate or an Opinion of Counsel, and the Trustee
shall not be liable for any action it takes or omits to take in
good faith reliance on such certificate or opinion.
SECTION 10.19. ARTICLE APPLYING TO PAYING
AGENTS. In case at any time any paying agent other than the
Trustee shall have been appointed by the Issuer and be then
acting hereunder, the term "Trustee" as used in this Article 10
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if
such paying agent were named in this Article 10 in addition to or
in place of the Trustee.
SECTION 10.20. RELIANCE BY HOLDERS OF SUPERIOR
DEBT ON SUBORDINATION PROVISIONS. Each Holder by accepting a
Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Superior Debt, whether such
Superior Debt was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or
to continue to hold, such Superior Debt and such holder of
Superior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Superior Debt.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If
any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02. COMMUNICATION BY HOLDERS WITH
OTHER HOLDERS. Holders of Securities may communicate pursuant to
TIA section 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection
of TIA section 312(c).
SECTION 11.03. NOTICES. Any notice or
communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Issuer:
Americold Corporation
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
Attention: Joel M. Smith
if to the Trustee:
United States Trust Company of New York
114 West 47th Street, 15th Floor
New York, New York 10036-1532
Attention: Corporate Trust Division
The Issuer or the Trustee by notice to the other
may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder of
Securities shall be mailed to such Holder at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Holder of Securities or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.04. WHEN TREASURY SECURITIES DISRE-
GARDED. In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Issuer or by any
Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing,
only Securities Outstanding at the time shall be considered in
any such determination.
SECTION 11.05. RULES BY TRUSTEE, PAYING AGENT
AND SECURITY REGISTRAR. The Trustee may make reasonable rules
for action by or a meeting of Holders of Securities. The
Security Registrar and the paying agent may make reasonable rules
for their functions.
SECTION 11.06. LEGAL HOLIDAYS. A "Legal
Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York
or the State of Oregon. If a Payment Date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period on such amounts to be paid on such Payment Date; PROVIDED
that if the Maturity Date is a Legal Holiday, interest shall
accrue for such intervening period. If a regular record date is
a Legal Holiday, the record date shall not be affected.
SECTION 11.07. SUCCESSORS. All agreements of
the Issuer in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.08. MULTIPLE ORIGINALS. The parties
may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.09. SEPARABILITY CLAUSE. In case any
provision in this Indenture or in the Securities 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 11.10. GOVERNING LAW. This Indenture
and each of the Securities issued hereunder shall be deemed to be
contracts made under the laws of the State of New York and shall
for all purposes be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required
thereby.
SECTION 11.11. TABLE OF CONTENTS; HEADINGS. The
table of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not being considered a part hereof and shall
in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, AMERICOLD CORPORATION has
caused this Indenture to be signed and acknowledged by its Vice
President, and its corporate seal to be affixed hereunto, and the
same to be attested by its Assistant Secretary; and UNITED STATES
TRUST COMPANY OF NEW YORK has caused this Indenture to be signed
and delivered by one of its Vice Presidents and its corporate
seal to be affixed hereunto, and the same to be attested by one
of its Authorized Persons, all as of the day and year first above
written.
AMERICOLD CORPORATION
By /s/ Joel M. Smith
--------------------------------
Name: Joel M. Smith
Title: Senior Vice President and
Chief Financial Officer
Attest:
/s/ Lon V. Leneve
_________________________
Name: Lon V. Leneve
Title: Secretary
[Seal]
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By /s/ Louis P. Young
--------------------------------
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
Attest:
/s/ Margaret M. Ciesmelewski
- ----------------------------
Name: MARGARET M. CIESMELEWSKI
Title: ASSISTANT VICE PRESIDENT
[Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27TH day of June 1995, before me
personally came Joel M. Smith, to me known, and who, being
by me duly sworn, did depose and say that he resides at
275 Chandler Place, Lake Oswego, Oregon 97034, that he is
the Senior Vice President and Chief Financial Officer of
AMERICOLD CORPORATION, one of the corporations described
in and which executed the above instrument; that he knows
the corporate seal of said corporation; that one of the
seals affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
/s/ Alissa D. Peck
---------------------------
Name: ALISSA D. PECK
Commission Expires 9/12/96
--------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 26 day of June 1995, before me
personally came LOUIS P. YOUNG, to me known, and who,
being by me duly sworn, did depose and say that he resides
at PLAINVIEW, N.Y., that he is the VICE PRESIDENTof UNITED
STATES TRUST COMPANY OF NEW YORK, one of the corporations
described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that one
of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed
his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
/s/ Christine C. Collins
---------------------------
Name:
Commission Expires _______
[FORM OF FACE OF SECURITY]
AMERICOLD CORPORATION
No. R- $
15% Senior Subordinated Debenture, Due 2007
AMERICOLD CORPORATION, an Oregon corporation,
promises to pay to , or registered
assigns, the aggregate principal sum of Dollars on
or before May 1, 2007.
Interest Payment Dates: May 1 and
November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set
forth on the other side of this Security.
Dated:
AMERICOLD CORPORATION,
By
______________________________
Vice President
______________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee, certifies that [SEAL]
this is one of the Securities
referred to in the Indenture.
By
____________________________
Authorized Signatory
Date of Authentication:
[FORM OF REVERSE SIDE OF SECURITY]
AMERICOLD CORPORATION
15% Senior Subordinated Debenture, Due 2007
1. PAYMENT OF INTEREST; DEFAULT RATE; PAYMENT OF
PRINCIPAL.
Americold Corporation (the "Issuer", which term
includes any successor as defined in the Indenture hereinaf-
ter referred to) promises to pay interest on the outstanding
principal amount of this Security (a "Security") from the
date hereof to maturity at a rate of 15% per annum, and to
pay, on demand, interest, compounded monthly, on any overdue
principal and (to the extent not prohibited by applicable
law) interest at a rate (the "Default Rate") equal to the
lesser of (a) the greater of (i) 18% per annum and (ii) 4%
per annum over the prime rate or equivalent rate of interest
from time to time in effect as announced by United States
Trust Company of New York, and (b) the maximum rate of
interest on this Security then permitted by applicable law,
in each case computed on the basis of a 360-day year of
twelve 30-day months. This Security shall bear interest on
the unpaid principal amount hereof from and after the most
recent Payment Date (as hereinafter defined) to which inter-
est has been paid or, if no interest has been paid, from and
after the date of original issuance of the Securities.
Such principal and interest (other than any inter-
est payable at the Default Rate, which is payable on demand)
shall be payable in the manner set forth in Section 3 below
in lawful money of the United States of America, as follows:
(i) the full amount of all interest accrued on
the outstanding principal amount of this Security shall
be due and payable on May 1 and November 1 of each
year, commencing November 1, 1995; and
(ii) payment of principal shall be due and payable
on May 1, 2007.
The payments described in clause (i) above are herein called
the "Interest Payments" and the dates upon which such pay-
ments and the payment described in clause (ii) above are due
are herein called the "Payment Dates"; PROVIDED that, if any
Payment Date would otherwise be on a day which is not a
Business Day, then such Payment Date shall be the next
succeeding Business Day. Capitalized terms used herein
without definition shall have the meanings specified in the
Indenture (as hereinafter defined).
The Interest Payment payable on any Payment Date
will, subject to certain conditions set forth below, be paid
to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of busi-
ness on the April 15 or October 15 next preceding such
Payment Date, as the case may be; PROVIDED that any Interest
Payment not punctually paid or duly provided for on such
Payment Date shall cease to be so payable, but instead shall
be payable to the Person in whose name this Security is
registered at the close of business on such date as shall be
determined by the Issuer in accordance with the Indenture
(as hereinafter defined).
2. INDENTURE.
This Security is a general unsecured obligation of
the Issuer and is one of a duly authorized issue of se-
curities of the Issuer designated as its 15% Senior Sub-
ordinated Debentures, Due 2007, limited in aggregate prin-
cipal amount to $115,000,000, except as provided in the
Indenture (as hereinafter defined), all issued or to be
issued, under and pursuant to the Indenture, dated as of
June 30, 1995 (herein, together with all supplements and
amendments thereto, called the "Indenture"). This Security
has been duly executed and delivered by the Issuer to United
States Trust Company of New York (herein, together with its
successors and assigns as trustee under the Indenture,
called the "Trustee"), as Trustee for authentication.
Reference is hereby made to the Indenture and all indentures
supplemental thereto for a description of the nature and
extent of the security, the rights, limitations of rights,
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the Holders of the Securities, and
this Security is subject in all respects to such Indenture.
3. METHOD OF PAYMENT; TAX WITHHOLDING.
(a) Interest Payments on the Securities will be
made in U.S. dollars, at the office of the Trustee, but, at
the option of the Issuer, such payments may be made by check
drawn on a bank in New York City mailed to the Holder at
such Holder's registered address, except as otherwise pro-
vided in the Indenture. Payment of principal on this Se-
curity upon maturity or redemption in whole or in part,
together with accrued interest, will, except as otherwise
provided in the Indenture, be made against surrender hereof
at the office of the paying agent or co-paying agent main-
tained by the Issuer in New York City, which initially shall
be at the office of the United States Trust Company of New
York, 114 West 47th Street, 15th Floor, New York, New York
10036-1532.
(b) No deduction or withholding from any payment
of interest on this Security for or on account of any taxes
will be made except as required by law. Applicable United
States federal taxes will be withheld from payments on this
Security for any year in which the Trustee has not received
from any Holder hereof that is not a United States Person
(as defined in the Indenture) properly executed Form 4224 or
Form 1001 (or Form W-8) (or successor thereto) in accordance
with the provisions of the Indenture, certifying to the
effect that such Holder is not subject to United States
federal withholding tax on interest payable under this
Security.
4. DENOMINATIONS.
Securities are issuable only in fully registered
form without coupons and may be transferred in minimum
denominations of $1,000 and such greater denominations as
are whole multiples of $1,000, only in the manner and upon
payment of the charges provided in the Indenture. The
Trustee will authenticate and deliver Securities for issue
in an aggregate principal amount not to exceed $115,000,000
upon a written order of the Issuer.
5. DEFAULTS AND REMEDIES.
If an Event of Default, as defined in the Inden-
ture, shall have occurred and be continuing, the principal
amount of each Security may become or be declared to be due
and payable. Upon payment by the Issuer of such principal
amount, and all accrued interest, the obligations of the
Issuer with respect to the payment of principal of, and
interest on this Security shall terminate.
The Indenture provides that a declaration that the
Securities are due and payable upon the occurrence of cer-
tain Events of Default and the consequences of such declara-
tion may be annulled by the Holders of a majority in aggre-
gate principal amount of the Securities then Outstanding,
considered as a single class. It is also provided in the
Indenture that under certain circumstances prior to any such
declaration the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding may on
behalf of the Holders of all the Securities waive any past
Default or Event of Default under the Indenture and its
consequences except a default in the payment of principal
of, or interest on any of the Securities, or a default in
respect of a covenant or provision of the Indenture which
cannot be amended or modified without the consent of the
Holder of each Security affected.
6. AMENDMENT; SUPPLEMENT; WAIVER.
The Indenture contains provisions permitting the
Issuer and the Trustee, without the consent of the Holders
of Securities, to modify and amend the terms and conditions
of the Indenture and the Securities for certain purposes
including, without limitation, (a) adding to the covenants
of the Issuer for the benefit of the Holders of Securities,
(b) curing any ambiguity or correcting or supplementing any
defective provisions contained therein, or (c) making such
other provisions in regard to matters or questions arising
under the Indenture as shall not adversely affect the inter-
ests of the Holders of the Securities. The Indenture con-
tains provisions permitting the Issuer and the Trustee, with
the consent of the Holders of a majority in aggregate prin-
cipal amount of the Securities then Outstanding, evidenced
as in the Indenture provided, to execute supplemental inden-
tures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or any
supplemental indenture or modifying in any manner the rights
of the Holders of Securities under the Indenture; PROVIDED
that no such supplemental indenture shall, without the
consent in each case of the Holder of each Security so
affected, (a) extend the fixed maturity of any Securities,
or reduce the principal amount thereof, or change the time
at which or circumstances under which any Security may or
shall be redeemed or repurchased, or reduce the rate of or
extend the time of payment of interest thereon, or make the
principal thereof or interest thereon payable in any coin or
currency other than that hereinbefore provided, or impair
the right to institute suit for the enforcement of any such
payment, make any changes to the subordination provisions
set forth in the Indenture that adversely affect the rights
of any Securityholder, or (b) amend certain provisions of
the Indenture to reduce quorum or voting requirements, or
reduce the aforesaid percentage in aggregate principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture, or reduce the
percentage of Securities the Holders of which are required
to give certain directions or to consent to certain waivers
or (c) modify or affect in any manner adverse to the Holders
of the Securities the terms and conditions of the obliga-
tions of the Issuer in respect of the due and punctual pay-
ment of the principal of and interest on the Securities.
Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders of this Security and any Security which may
be issued in substitution or exchange hereof, irrespective
of whether any notation of such consent or waiver is made
upon this Security or such other Security.
7. REDEMPTION.
The Securities may be redeemed at anytime, in
whole or in part, upon notice given pursuant to the
Indenture, at a redemption price equal to 100% of the
outstanding principal amount of the Securities to be
redeemed, together with accrued interest to the date of
redemption.
In the case of any redemption of Securities, the
Issuer is required to deliver to the Trustee an Officers'
Certificate of the Issuer stating that the Issuer is enti-
tled to effect such redemption and setting forth in reason-
able detail a statement of facts showing that the conditions
precedent, if any, to the right of the Issuer to redeem the
Securities have occurred.
8. SUBORDINATION.
The indebtedness evidenced by this Security is, to
the extent provided in the Indenture, subordinate and sub-
ject in right of payment to the prior payment in full of all
Superior Debt and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions and (b) authorizes
and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the sub-
ordination so provided.
9. PUT PROVISIONS.
Upon a Change of Control, any Holder of Securities
will have the right to cause the Issuer to repurchase all or
any part of the Securities of such Holder at a repurchase
price equal to 100% of the principal amount of the Securi-
ties to be repurchased plus accrued interest to the date of
repurchase, as provided in, and subject to, the Indenture.
10. ASSET SALES.
The Indenture provides, under certain circum-
stances, for the payment of principal of the Securities from
certain asset sales.
11. DEFEASANCE.
Subject to certain conditions, the Issuer at any
time may terminate some or all of its obligations under the
Securities and the Indenture if the Issuer deposits with the
Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities to redemption or
maturity, as the case may be.
12. PERSONS DEEMED OWNERS.
The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the Person in whose
name this Security shall be registered upon the Security
Register (as such term is defined in the Indenture) as the
absolute owner of this Security (whether or not this Securi-
ty shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of
receiving payment thereof and for all other purposes, and
neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall, except to the extent required
by applicable law, be affected by any notice to the con-
trary. All such payments so made to any such Person shall
be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge all liability for the
money payable hereupon.
13. VALIDITY; AUTHENTICATION.
The Indenture and this Security shall be deemed to
be contracts made under the laws of the State of New York
and shall for all purposes be governed by, and construed in
accordance with, the laws of such State without giving
effect to applicable principles of conflicts of laws to the
extent that the application of the laws of another jurisdic-
tion would be required thereby.
This Security shall not be valid or become obliga-
tory for any purpose until the certificate of authentication
hereon shall have been manually signed by the Trustee under
the Indenture.
14. UNCLAIMED MONEY.
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or paying agent
shall pay the money back to the Issuer at its request.
After any such payment, Securityholders entitled to the
money must look only to the Issuer and not to the Trustee
for payment unless an abandoned property law designates
another person.
15. ABBREVIATIONS.
Customary abbreviations may be used in the name of
a Securityholder 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).
The Issuer will furnish to any Securityholder upon
written request and without charge a copy of the Indenture
which has in it the text of this Security in larger type.
16. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP numbers to be printed on the se-
curities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Security-
holders. No representation is made as to the accuracy of
such numbers either as printed on the Security or as con-
tained in any notice of redemption and reliance may be
placed only on the other identification numbers placed
thereon.
- -----------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- -----------------------------------------------------------
(Print or type assignee's name, address and zip code)
- -----------------------------------------------------------
(insert assignee's social security or taxpayer I.D. number)
and irrevocably appoint ___________________________________
agent to transfer this Security on the books of the Issuer.
The agent may substitute another to act for him.
Date: __________________
Signature: ________________________________________________
(Sign exactly as your name appears on the
other side of this Security)
- ------------------------------------------------------------
AMERICOLD CORPORATION
15% New Subordinated Debentures, Due 2007
CROSS-REFERENCE TABLE
Between the Indenture and the Trust Indenture Act of 1939
TIA
Section Indenture Section
- ------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.08; 7.10
(c) Not Applicable
311(a) 7.11
(b) 7.11
(c) Not Applicable
312(a) 4.15
(b) 11.02
(c) 11.02
313(a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 11.03
(d) 7.06
314(a) 4.03; 4.16; 11.03
(b)(1) Not Applicable
(b)(2) 4.19
(c)(1) 4.19
(c)(2) 4.19
(c)(3) Not Applicable
(d) Not Applicable
(e) 4.20
(f) Not Applicable
315(a) 7.01
(b) 7.05; 11.03
(c) 7.01
(d) 7.01
(e) 5.11
316(a) (last sentence) 11.04
(a)(1)(A) 5.05
(a)(1)(B) 5.04
(a)(2) Not Applicable
(b) 5.07
317(a)(1) 5.08
(a)(2) 5.09
(b) 4.13
318(a) 11.01
_________________________
Note: This Cross-Reference Table shall not, for any pur-
pose, be deemed to be a part of this Indenture.