EXECUTION COPY
BERRY PLASTICS CORPORATION
BPC HOLDING CORPORATION
BERRY IOWA CORPORATION
BERRY TRI-PLAS CORPORATION
BERRY STERLING CORPORATION
AEROCON, INC.
PACKERWARE CORPORATION
BERRY PLASTICS DESIGN CORPORATION
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
VENTURE PACKAGING SOUTHEAST, INC.
NIM HOLDINGS LIMITED
NORWICH INJECTION MOULDERS LIMITED
12 1/4 % SENIOR SUBORDINATED NOTES DUE 2004
INDENTURE
Dated as of August 24, 1998
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
CROSS-REFERENCE TABLE{1}
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06; 7.07
(c) 7.06; 12.02
(d) 7.06
314(a) 4.03; 12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05; 12.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 6.07; 9.02
(b) 6.07
(c) 2.13
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
N.A. means not applicable.
**FOOTNOTES**
{1}This Cross-Reference Table is not part of the Indenture.
1
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01. Definitions. 1
Section 1.02. Other Definitions. 14
Section 1.03. Incorporation by Reference of Trust Indenture Act. 15
Section 1.04. Rules of Construction. 16
ARTICLE 2 THE NOTES 16
Section 2.01. Form and Dating. 16
Section 2.02. Execution and Authentication. 17
Section 2.03. Registrar and Paying Agent. 18
Section 2.04. Paying Agent to Hold Money in Trust. 18
Section 2.05. Lists Of Holders of the Notes. 19
Section 2.06. Transfer and Exchange. 19
Section 2.07. Replacement Notes. 33
Section 2.08. Outstanding Notes. 33
Section 2.09. Treasury Notes. 34
Section 2.10. Temporary Notes. 34
Section 2.11. Cancellation. 34
Section 2.12. Defaulted Interest. 35
Section 2.13. Record Date. 35
Section 2.14. CUSIP Number. 35
ARTICLE 3 REDEMPTION AND PREPAYMENT 36
Section 3.01. Notices to Trustee. 36
Section 3.02. Selection of Notes to be Redeemed. 36
Section 3.03. Notice of Redemption. 37
Section 3.04. Effect of Notice of Redemption. 38
Section 3.05. Deposit of Redemption Price. 38
Section 3.06. Notes Redeemed in Part. 38
Section 3.07. Optional Redemption. 38
Section 3.08. Mandatory Redemption. 39
Section 3.09. Offer to Purchase by Application of Excess Proceeds. 39
ARTICLE 4 COVENANTS 41
Section 4.01. Payment of Notes. 41
Section 4.02. Maintenance of Office or Agency. 41
Section 4.03. Reports. 42
Section 4.04. Compliance Certificate. 42
Section 4.05. Taxes. 43
Section 4.06. Stay, Extension and Usury Laws. 43
Section 4.07. Restricted Payments. 44
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries 45
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified
Stock 46
Section 4.10. Asset Sales. 47
Section 4.11. Transactions with Affiliates. 49
Section 4.12. Liens. 49
Section 4.13. Additional Guarantees. 49
Section 4.14. Corporate Existence. 50
Section 4.15. Offer to Repurchase Upon Change of Control. 50
Section 4.16. No Senior Subordinated Indebtedness. 51
ARTICLE 5 SUCCESSORS 52
Section 5.01. Merger, Consolidation Or Sale Of Assets. 52
Section 5.02. Successor Corporation Substituted. 52
ARTICLE 6 DEFAULTS AND REMEDIES 53
Section 6.01. Events Of Default. 53
Section 6.02. Acceleration. 55
Section 6.03. Other Remedies. 56
Section 6.04. Waiver Of Past Defaults. 56
Section 6.05. Control By Majority. 57
Section 6.06. Limitation On Suits. 57
Section 6.07. Rights Of Holders Of Notes To Receive Payment. 58
Section 6.08. Collection Suit By Trustee. 58
Section 6.09. Trustee May File Proofs Of Claim. 58
Section 6.10. Priorities. 59
Section 6.11. Undertaking For Costs. 59
ARTICLE 7 TRUSTEE 60
Section 7.01. Duties Of Trustee. 60
Section 7.02. Rights Of Trustee. 61
Section 7.03. Individual Rights of Trustee. 62
Section 7.04. Trustee's Disclaimer. 62
Section 7.05. Notice Of Defaults. 62
Section 7.06. Reports By Trustee To Holders Of The Notes. 62
Section 7.07. Compensation And Indemnity. 63
Section 7.08. Replacement Of Trustee. 64
Section 7.09. Successor Trustee By Merger, Etc. 65
Section 7.10. Eligibility; Disqualification. 65
Section 7.11. Preferential Collection Of Claims Against Company. 65
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 66
Section 8.01. Option To Effect Legal Defeasance Or Covenant Defeasance. 66
Section 8.02. Legal Defeasance And Discharge. 66
Section 8.03. Covenant Defeasance. 66
Section 8.04. Conditions To Legal Or Covenant Defeasance. 67
Section 8.05. Deposited Money And Government Securities To Be Held In
Trust; Other Miscellaneous Provisions. 68
Section 8.06. Repayment To Company. 69
Section 8.07. Reinstatement. 70
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 70
Section 9.01. Without Consent Of Holders Of Notes. 70
Section 9.02. With Consent Of Holders Of Notes. 71
Section 9.03. compliance With Trust Indenture Act. 73
Section 9.04. Revocation And Effect Of Consents. 73
Section 9.05. Notation On Or Exchange Of Notes. 73
Section 9.06. Trustee to Sign Amendments, Etc. 73
ARTICLE 10 NOTE GUARANTEES 74
Section 10.01. Note Guarantee. 74
Section 10.02. Subordination. 75
Section 10.03. liquidation; Dissolution; Bankruptcy. 76
Section 10.04. Default on Designated Senior Indebtedness of The
Guarantor 76
Section 10.05. Acceleration of Notes. 77
Section 10.06. When Distribution Must be Paid Over. 77
Section 10.07. Notice by a Guarantor. 78
Section 10.08. Subrogation. 79
Section 10.09. Relative Rights. 79
Section 10.10. Subordination May Not be Impaired by any Guarantor. 79
Section 10.11. Distribution or Notice to Representative. 79
Section 10.12. Rights of Trustee and Paying Agent. 80
Section 10.13. Authorization to Effect Subordination. 80
Section 10.14. Limitation of Guarantor's Liability. 80
Section 10.15. Execution and Delivery of Note Guarantee. 81
Section 10.16. Guarantors May Consolidate, Etc., on Certain Terms. 81
Section 10.17. Releases Following Sale of Assets. 82
ARTICLE 11 SUBORDINATION 82
Section 11.01. Subordination. 82
Section 11.02. Liquidation; Dissolution; Bankruptcy. 83
Section 11.03. Default on Senior Indebtedness. 83
Section 11.04. Acceleration of Notes. 84
Section 11.05. When Distribution Must be Paid Over. 84
Section 11.06. Notice by Company. 85
Section 11.07. Subrogation. 85
Section 11.08. Relative Rights. 85
Section 11.09. Subordination May Not be Impaired by Company. 86
Section 11.10. Distribution or Notice to Representative. 86
Section 11.11. Rights of Trustee and Paying Agent. 86
Section 11.12. Authorization to Effect Subordination. 87
ARTICLE 12 MISCELLANEOUS 87
Section 12.01. Trust Indenture Act Controls. 87
Section 12.02. Notices. 87
Section 12.03. Communication by Holders of Notes With Other Holders of
Notes 88
Section 12.04. Certificate and Opinion as to Conditions Precedent. 89
Section 12.05. Statements Required in Certificate or Opinion. 89
Section 12.06. Rules by Trustee and Agents. 89
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders. 90
Section 12.08. Governing Law. 90
Section 12.09. Consent to Jurisdiction. 90
Section 12.10. No Adverse Interpretation of Other Agreements. 90
Section 12.11. Successors. 90
Section 12.12. Severability. 91
Section 12.13. Counterpart Originals. 91
Section 12.14. Table of Contents, Headings, Etc. 91
EXHIBITS
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
EXHIBIT E FORM OF NOTATION ON SENIOR SUBORDINATED NOTE RELATING TO THE NOTE
GUARANTEES
1
INDENTURE dated as of August 24, 1998 among Berry Plastics Corporation, a
Delaware corporation (the "Company"), BPC Holding Corporation, a Delaware
corporation ("Holding"), Berry Iowa Corporation, a Delaware corporation
("Berry Iowa"), Berry Tri-Plas Corporation, a Delaware corporation ("Berry
Tri-Plas"), Berry Sterling Corporation, a Delaware corporation ("Berry
Sterling"), AeroCon, Inc., a Delaware corporation ("AeroCon"), PackerWare
Corporation, a Kansas corporation ("PackerWare"), Berry Plastics Design
Corporation, a Delaware corporation ("Berry Design"), Venture Packaging,
Inc., a Delaware corporation ("Venture Holdings"), Venture Packaging
Midwest, Inc., an Ohio corporation ("Venture Midwest"), Venture Packaging
Southeast, Inc., a South Carolina corporation ("Venture Southeast"), NIM
Holdings Limited, a company organized under the laws of England and Wales
("NIM Holdings"), and Norwich Injection Moulders Limited, a company
organized under the laws of England and Wales ("Norwich" and, collectively
with Holding, Berry Iowa, Berry Tri-Plas, Berry Sterling, AeroCon,
PackerWare, Berry Design, Venture Holdings, Venture Midwest, Venture
Southeast and NIM Holdings, the "Guarantors") and United States Trust
Company of New York, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the
Holders of the 12 1/4 % Series B Senior Subordinated Notes due 2004 (the
"Series B Notes") and the 12 1/4 % Series C Senior Subordinated Notes due
2004 (the "Series C Notes") and, together with the Series B Notes, the
"Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
1.1 Definitions.
"144A GLOBAL NOTE" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the
name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person,
including Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary of such
specified Person and (ii) Indebtedness encumbering any asset acquired by
such specified Person.
"ADDITIONAL NOTES" means up to $75.0 million in aggregate
principal amount of Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09 hereof.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; PROVIDED, HOWEVER, that beneficial
ownership of 10% or more of the voting securities of a Person shall be
deemed to be control. Neither Chase Bank, CITEI, nor their respective
Affiliates shall be deemed an Affiliate of the Company or any of its
Subsidiaries for purposes of this definition by reason of its direct or
indirect beneficial ownership of 15% or less of the Common Stock of Holding
or by reason of any employee thereof being appointed to the Board of
Directors of Holding.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such
transfer or exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any property or assets of the Company or any Subsidiary
(including by way of a sale-and-leaseback) other than sales of inventory in
the ordinary course of business (PROVIDED that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the
Company shall be governed by Sections 4.15 and 5.01 hereof), or (ii) the
issuance or sale of Equity Interests of any of its Subsidiaries, in the
case of either clause (i) or (ii) above, whether in a single transaction or
a series of related transactions, (a) that have a fair market value in
excess of $250,000, or (b) for net proceeds in excess of $250,000. For
purposes of this definition, the term "Asset Sale" shall not include (i)
the transfer of assets by the Company to a Wholly Owned Subsidiary of the
Company or by a Wholly Owned Subsidiary of the Company to the Company or to
another Wholly Owned Subsidiary of the Company, (ii) any Restricted
Payment, dividend or purchase or retirement of Equity Interests permitted
under Section 4.07 hereof or (iii) the issuance or sale of Equity Interests
of any Subsidiary of the Company, PROVIDED that such Equity Interests are
issued or sold in consideration for the acquisition of assets by such
Subsidiary or in connection with a merger or consolidation of another
Person into such Subsidiary.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"BORROWING BASE" means, as of any date, an amount equal to the
sum of (a) 85% of the face amount of all accounts receivable owned by the
Company and its Subsidiaries as of such date that are not more than 90 days
past due, and (b) 65% of the book value (calculated on a FIFO basis) of all
inventory owned by the Company and its Subsidiaries as of such date, all
calculated on a consolidated basis and in accordance with GAAP. To the
extent that information is not available as to the amount of accounts
receivable or inventory as of a specific date, the Company may utilize the
most recent available information for purposes of calculating the Borrowing
Base.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be so required to be capitalized on a balance
sheet prepared in accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights or other equivalents (however designated) of
corporate stock, including, without limitation, with respect to
partnerships, partnership interests (whether general or limited) and any
other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets
of, such partnership.
"CASH EQUIVALENTS" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months from the date of acquisition and
overnight bank deposits, in each case with any lender party to the Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses
(ii) and (iii) entered into with any financial institution meeting the
qualifications specified in clause (iii) above and (v) commercial paper
having the highest rating obtainable from Moody's Investors Service, Inc.
or Standard & Poor's Corporation and in each case maturing within six
months after the date of acquisition.
"CEDEL" means Cedel Bank, SA.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of Holding's or the Company's
assets to any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than the Principal and his Related Parties), (ii)
the adoption of a plan relating to the liquidation or dissolution of
Holding or the Company, (iii) the acquisition by any person or group (as
such term is used in Section 13(d)(3) of the Exchange Act) (other than by
the Principal and his Related Parties) of a direct or indirect interest in
more than 35% of the voting power of the voting stock of Holding by way of
purchase, merger or consolidation or otherwise if (a) such person or group
(as defined above) (other than the Principal and his Related Parties) owns,
directly or indirectly, more of the voting power of the voting stock of
Holding than the Principal and his Related Parties and (b) such acquisition
occurs prior to the Initial Public Offering, (iv) the acquisition by any
person or group (as such term is used in Section 13(d)(3) of the Exchange
Act) (other than by the Principal and his Related Parties) of a direct or
indirect interest in more than 50% of the voting power of the voting stock
of Holding by way of purchase, merger or consolidation or otherwise if such
acquisition occurs subsequent to the Initial Public Offering or (v) the
first day on which a majority of the members of the Board of Directors of
Holding are not Continuing Directors.
"CHASE BANK" means The Chase Manhattan Bank, NA.
"CITEI" means The CIT Group/Equity Investments, Inc.
"COMMON STOCK OF HOLDING" means the Class A Common Stock, $.00005
par value per share, and the Class B Common Stock, $.00005 par value per
share, of Holding.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus
(a) an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale (to the extent such losses were deducted in
computing Consolidated Net Income), plus (b) provision for taxes based on
income or profits of such Person for such period, to the extent such
provision for taxes was included in computing Consolidated Net Income, plus
(c) Consolidated Interest Expense of such Person for such period to the
extent such expense was deducted in computing Consolidated Net Income, plus
(d) Consolidated Depreciation and Amortization Expense of such Person for
such period to the extent such expense was deducted in computing
Consolidated Net Income, plus (e) other non-cash charges (including,
without limitation, repricing of stock options, to the extent deducted in
computing Consolidated Net Income; but excluding any non-cash charge that
requires an accrual or reserve for cash expenditures in future periods or
which involved a cash expenditure in a prior period), in each case, on a
consolidated basis and determined in accordance with GAAP.
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" means, with
respect to any Person for any period, the total amount of depreciation and
amortization expense (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were
paid in a prior period) of such Person for such period on a consolidated
basis as determined in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, the sum of (a) consolidated interest expense of such Person
and its Subsidiaries for such period, whether paid or accrued, to the
extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discount, non-cash interest
payments, the interest component of capital leases, and net payments (if
any) pursuant to Hedging Obligations), (b) commissions, discounts and other
fees and charges paid or accrued with respect to letters of credit and
bankers' acceptance financing, and (c) interest actually paid by such
Person or its Subsidiaries under a Guarantee of Indebtedness of any other
Person.
"CONSOLIDATED NET INCOME" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED, that (i) the Net Income of any Person that
is not a Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends
or distributions paid to the referent Person or a Wholly Owned Subsidiary
thereof that is a Guarantor, (ii) the Net Income of any Person that is a
Subsidiary (other than a Wholly Owned Subsidiary) shall be included only to
the extent of the amount of dividends or distributions paid to the referent
Person or a Wholly Owned Subsidiary thereof that is a Guarantor, (iii) the
Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded and (iv)
the cumulative effect of a change in accounting principles shall be
excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common stockholders
of such Person and its consolidated Subsidiaries as of such date plus (ii)
the respective amounts reported on such Person's balance sheet as of such
date with respect to any series of Preferred Stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of dividends unless
such dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of any
cash received by such Person upon issuance of such Preferred Stock, less
(x) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business
made within 16 months after the acquisition of such business) subsequent to
April 21, 1994 in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, (y) all investments as of such date
in unconsolidated Subsidiaries and in Persons that are not Subsidiaries
(except, in each case, Permitted Investments), and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such date, all
of the foregoing determined in accordance with GAAP.
"CONSOLIDATED STEP-UP DEPRECIATION AND AMORTIZATION" means, with
respect to any Person for any period, the total amount of depreciation
related to the write-up of assets and amortization of such Person for such
period on a consolidated basis as determined in accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination,
any member of the Board of Directors of Holding who (i) was a member of
such Board of Directors on the Issuance Date or (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of
a majority of the Continuing Directors who were members of such Board at
the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 12.02 hereof or such other address as
to which the Trustee may give written notice to the Company.
"CREDIT FACILITY" means the Second Amended and Restated Financing
and Security Agreement, dated as of July 2, 1998, by the Company and
NationsBank, N.A., providing for up to $132.6 million of borrowings (plus
the <pound-sterling>1.5 million UK Revolver and the <pound-sterling>4.5
million UK Term Loan), including any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith, and
in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) the Senior Bank
Indebtedness and (ii) any other Senior Indebtedness (a) permitted to be
incurred under this Indenture the principal amount of which is $15 million
or more and (b) designated in the instrument creating or evidencing such
Senior Indebtedness as "Designated Senior Indebtedness."
"DISQUALIFIED STOCK" means any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the Holder thereof, in whole or in part, on
or prior to July 15, 2004.
"DISTRIBUTION" means, for purposes of Articles 10 and 11, a
distribution consisting of cash, securities or other property, by set-off
or otherwise.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION RIGHTS AGREEMENT" has the meaning
set forth in the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than under the Credit Facility) in existence on the
Issuance Date, until such amounts are repaid.
"FIXED CHARGES" means, with respect to any Person for any period,
the sum of (a) Consolidated Interest Expense of such Person for such
period, whether paid or accrued, to the extent such expense was deducted in
computing Consolidated Net Income and (b) the product of (i) all cash
dividend payments (and non-cash dividend payments in the form of securities
(other than Disqualified Stock) of an issuer) on any series of Preferred
Stock of such Person, times (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for
such period to the Fixed Charges of such Person for such period. In the
event that the Company or any of its Subsidiaries incurs, assumes,
guarantees or redeems any Indebtedness (other than revolving credit
borrowings) or issues Preferred Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of Preferred Stock, as if the same had occurred at
the beginning of the applicable four-quarter reference period. For
purposes of making the computation referred to above, acquisitions,
dispositions and discontinued operations (as determined in accordance with
GAAP) that have been made by the Company or any of its Subsidiaries,
including all mergers and consolidations, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date shall be calculated on a pro forma basis assuming that all
such acquisitions, dispositions, discontinued operations, mergers and
consolidations (and the reduction of any associated fixed charge
obligations resulting therefrom) had occurred on the first day of the four-
quarter reference period.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect on the Issuance
Date.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in
the form of Exhibit A hereto issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued
under this Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United
States of America is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters
of credit and reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"GUARANTORS" means each of (i) Holding, Berry Iowa, Berry Tri-
Plas, Berry Sterling, AeroCon, PackerWare, Berry Design, Venture Holdings,
Venture Midwest, Venture Southwest, NIM Holdings and Norwich and (ii) any
other Person that executes a Note Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii)
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates.
"HOLDER" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means the global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the
name of the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold to
Institutional Accredited Investors.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an accrued
expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise
included, the Guarantee of any Indebtedness of such Person or any other
Person.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INITIAL NOTES" means the first $25.0 aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"INITIAL PUBLIC OFFERING" means a public offering of the Common
Stock of Holding that first results in the Common Stock of Holding becoming
listed for trading on a Stock Exchange.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who is not also a QIB.
"INVESTMENTS" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of
loans (including Guarantees), advances or capital contributions (excluding
commission, travel and similar advances to officers, directors, consultants
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"ISSUANCE DATE" means the closing date for the sale and original
issuance of the Notes.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding Business Day, and no interest shall
accrue for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"LIQUIDATED DAMAGES" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"NET INCOME" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends, excluding, however, any
gain (but not loss), together with any related provision for taxes on such
gain (but not loss), realized in connection with any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback
transactions), and excluding any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain
(but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale, net of the
direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and
any relocation expenses incurred as a result thereof, taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale and any reserve for
indemnification or adjustment in respect of the sale price of such asset or
assets.
"1994 INDENTURE" means the indenture dated as of April 21, 1994,
as amended, among the Company, the Guarantors and the Trustee, relating to
the 1994 Notes.
"1994 NOTES" means the Company's 12 1/4 % Senior Subordinated
Notes due 2004.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as
a single class for all purposes under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"OFFERING" means the offering of the Initial Notes by the
Company.
"OFFICER" means, with respect to any unnatural Person, the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer
or the principal accounting officer of the Company, that meets the
requirements of Section 12.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to
Holding, any Subsidiary of Holding or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear and Cedel).
"PERMITTED INVESTMENTS" means (a) any Investments in the Company
or in a Wholly Owned Subsidiary of the Company and that is engaged in the
same or a similar line of business as the Company and its Subsidiaries were
engaged in on the Issuance Date and (b) any Investments in Cash
Equivalents.
"PERMITTED REFINANCING" means Refinancing Indebtedness if (a) the
principal amount of Refinancing Indebtedness does not exceed the principal
amount of Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of premiums, accrued interest and reasonable
expenses incurred in connection therewith); (b) the Refinancing
Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (c) the
Refinancing Indebtedness is subordinated in right of payment to the Notes
on terms at least as favorable to the Holders of Notes as those contained
in the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity.
"PREFERRED STOCK" means any Equity Interest with preferential
right in the payment of dividends or liquidation or any Disqualified Stock.
"PRINCIPAL" means Roberto Buaron.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"REFINANCING INDEBTEDNESS" means Indebtedness issued in exchange
for, or the proceeds of which are used to extend, refinance, renew,
replace, defease or refund Indebtedness referred to in clauses (a) and (b)
of the second paragraph of Section 4.09 hereof.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of August 24, 1998, by and among the Company and the
other parties named on the signature pages thereof, as such agreement may
be amended, modified or supplemented from time to time and, with respect to
any Additional Notes, one or more registration rights agreements between
the Company and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights
given by the Company to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act."
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the
Private Placement Legend and deposited with or on behalf of the Depositary
and registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"RELATED PARTY" means with respect to the Principal (A) in the
case of an individual, any spouse, sibling or descendant of such Principal
(whether or not such relationship arises from birth, adoption or marriage
or despite such relationship being dissolved by divorce) or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding a controlling interest of
which consist of such Principal and/or such other Persons referred to in
the immediately preceding clause (A).
"REPRESENTATIVE" means, for purposes of Articles 10 and 11, the
indenture trustee or other trustee, agent or representative for any Senior
Indebtedness or, with respect to any Guarantor, for any Senior Indebtedness
of such Guarantor.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means any Investment other than a
Permitted Investment.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR BANK INDEBTEDNESS" means the Indebtedness outstanding
under the Credit Facility as such agreement may be restated, further
amended, supplemented or otherwise modified or replaced from time to time
hereafter, together with any refunding or replacement of any such
Indebtedness.
"SENIOR INDEBTEDNESS" means (i) the Senior Bank Indebtedness and
(ii) any other Indebtedness permitted to be incurred by the Company or a
Guarantor, as the case may be, under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides
that it is PARI PASSU with or subordinated in right of payment to the Notes
or a Note Guarantee, as the case may be. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include (w) any
liability for federal, state, local or other taxes owed or owing by the
Company or a Guarantor, as the case may be, (x) any Indebtedness of the
Company or a Guarantor, as the case may be, to Holding or to any of
Holding's other Subsidiaries or other Affiliates, (y) any trade payables or
(z) any Indebtedness that is incurred in violation of this Indenture.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"STOCK EXCHANGE" means the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of
that Person or a combination thereof.
"TAX SHARING AGREEMENT" means that certain Tax Sharing Agreement,
as in effect on the closing date of the Offering, between the Company and
Holding.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
<section><section> 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"UK TERM LOAN" means the <pound-sterling>4.5 million term loan
facility of the Company under the Credit Facility.
"UK REVOLVER" means the <pound-sterling>1.5 million revolving
credit facility of the Company under the Credit Facility.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests in
the Global Note" attached thereto, and that is deposited with or on behalf
of and registered in the name of the Depositary, representing a series of
Notes that do not bear the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (x) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (y) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the due date of such payment, by (b)
the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person and one or more Wholly Owned Subsidiaries of such Person.
1.2 OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Benefited Party" 10.01
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Guarantor Payment Blockage Notice 10.04
"incur" 4.09
"Legal Defeasance" 8.02
"Note Guarantee" 10.01
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Blockage Notice" 11.03
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
"Termination Date" 2.06
1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company, the Guarantors and any
successor obligor upon the Notes or any Note Guarantee, as the case may be.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE II
THE NOTES
2.1 Form and Dating.
(A) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the
terms of which are incorporated in and made a part of this Indenture. The
notation on each Note relating to the Note Guarantee shall be substantially
in the form set forth on Exhibit B, which is part of this Indenture. The
Notes may have notations, legends or endorsements approved as to form by
the Company and required by law, stock exchange rule, agreements to which
the Company or any Guarantor is subject or usage. Each Note shall be dated
the date of its authentication. The Notes shall be issuable only in
denominations of $1,000 and integral multiples thereof.
(B) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the
Global Note Legend thereon and the "Schedule of Exchanges of Interests in
the Global Note" attached thereto). Notes issued in definitive form shall
be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(C) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Cedel Bank.
2.2 EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company
by manual or facsimile signature. The Company's seal shall be reproduced
on the Notes and may be in facsimile form. An Officer of each Guarantor
shall sign the Note Guarantee for such Guarantor by manual or facsimile
signature.
If an Officer of the Company or a Guarantor whose signature is on
a Note or a Note Guarantee, as the case may be, no longer holds that office
at the time the Note is authenticated, the Note or the Note Guarantee, as
the case may be, shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture. The
form of Trustee's authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by
two Officers of the Company, authenticate Notes with the Note Guarantees
endorsed thereon for original issue up to an aggregate principal amount
stated in paragraph 4 of the Notes. The aggregate principal amount of
Notes outstanding at any time shall not exceed the amount set forth herein
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or any Guarantor
or an Affiliate of the Company or any Guarantor.
Any authenticating agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of the authenticating agent by giving
written notice of termination to the authenticating agent and the Company.
Upon receiving notice of such resignation or upon such termination by the
Trustee, the Trustee may appoint a successor authenticating agent
acceptable to the Company, in which case it shall so notify the Holders.
Upon its appointment hereunder, any successor authenticating agent shall
become vested with all the rights, powers and duties of its predecessor
hereunder.
The Company shall agree, by separate instrument, to pay each
authenticating agent from time to time reasonable compensation for its
services.
2.3 REGISTRAR AND PAYING AGENT.
The Company and the Guarantors shall maintain (i) an office or
agency where Notes may be presented for registration of transfer or for
exchange (including any co-registrar, the "REGISTRAR") and (ii) an office
or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent,
Registrar or co-registrar without prior notice to any Holder of a Note.
The Company shall notify the Trustee and the Trustee shall notify the
Holders of the Notes of the name and address of any Agent not a party to
this Indenture. The Company or any Guarantor may act as Paying Agent,
Registrar or co-registrar. The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture, which shall
incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the
Notes.
2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of the Holders of the Notes or the Trustee all money held by
the Paying Agent for the payment of principal of, premium or Liquidated
Damages, if any, and interest on the Notes, and shall notify the Trustee of
any Default by the Company or any Guarantor in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to
pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or
a Guarantor) shall have no further liability for the money delivered to the
Trustee. If the Company or a Guarantor acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders
of the Notes all money held by it as Paying Agent. Upon the occurrence of
either event specified in Section 6.01(h) or (i), the Trustee shall serve
as Paying Agent for the Notes.
2.5 LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of the Notes and shall otherwise comply with TIA <section>
312(a). If the Trustee is not the Registrar, the Company and/or any
Guarantor shall furnish to the Trustee at least seven Business Days before
each interest payment date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of the Notes,
including the aggregate principal amount of the Notes held by each thereof,
and the Company and each Guarantor shall otherwise comply with TIA
<section> 312(a).
2.6 TRANSFER AND EXCHANGE.
(A) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the
Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company
in its sole discretion determines that the Global Notes (in whole but not
in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may
not be exchanged for another Note other than as provided in this Section
2.06(a), however, beneficial interests in a Global Note may be transferred
and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(B) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by
the Securities Act. Transfers of beneficial interests in the Global Notes
also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs,
as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend. Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order
from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in
(1) above. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter
of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of
a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of
a beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be transferred,
in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest
in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Restricted Definitive Note, then, upon receipt by the Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of
an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(E) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to
the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance
by Persons that certify in the applicable Letters of Transmittal that (x)
they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this
Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OR (c) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY AND THE GUARANTORS
SO REQUEST), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note
by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other
than any such transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10,
4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
2.7 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of
the Company, shall authenticate and deliver a replacement Note (accompanied
by a notation of the Note Guarantee duly endorsed by the Guarantors) if the
Trustee's requirements for replacements of Notes are met. If required by
the Trustee, the Company or the Guarantors, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee,
the Company and the Guarantors to protect the Company, the Guarantors, the
Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Note is replaced. Each of the Company, the Guarantors
and the Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company
and the Guarantors and shall be entitled to all of the benefits of this
Indenture equally and proportionally with all other Notes duly issued
hereunder.
2.8 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Company, a Subsidiary of the Company or an
Affiliate of the Company holds the Note.
2.9 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, any Guarantor, any of their respective Subsidiaries
or any Affiliate of the Company or any Guarantor shall be considered as
though not outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which a Responsible Officer knows to be so owned shall
be so considered. Notwithstanding the foregoing, Notes that are to be
acquired by the Company, any Guarantor, any Subsidiary of the Company or
any Guarantor or an Affiliate of the Company or any Guarantor pursuant to
an exchange offer, tender offer or other agreement shall not be deemed to
be owned by the Company, a Guarantor, a Subsidiary of the Company or a
Guarantor or an Affiliate of the Company or a Guarantor until legal title
to such Notes passes to the Company, Guarantor, Subsidiary of the Company
or a Guarantor or Affiliate of the Company or a Guarantor, as the case may
be.
2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes
(accompanied by a notation of the Note Guarantee duly endorsed by the
Guarantors). Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company and the Trustee
consider appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the written order of
the Company signed by two Officers of the Company, shall authenticate
definitive Notes (accompanied by a notation of the Note Guarantee duly
endorsed by the Guarantors) in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits
and privileges as definitive Notes.
2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall
destroy cancelled Notes (subject to the record retention requirement of the
Exchange Act), unless the Company directs cancelled Notes to be returned to
it. The Company may not issue new Notes to replace Notes that it has
redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed
and certification of their destruction delivered to the Company, unless by
a written order, signed by two Officers of the Company, the Company shall
direct that cancelled Notes be returned to it.
2.12 DEFAULTED INTEREST.
If the Company or any Guarantor defaults in a payment of interest
on the Notes, the Company or such Guarantor (to the extent of their
obligations under the Note Guarantees) shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders of the Notes on a
subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
payment date, in each case at the rate provided in the Notes and in Section
4.01 hereof. The Company shall fix or cause to be fixed each such special
record date and payment date, and shall, promptly thereafter, notify the
Trustee of any such date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Holders entitled to such defaulted interest as in this
Subsection provided. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Holders entitled to such defaulted interest as in this
Subsection provided. At least 15 days before the special record date, the
Company (or the Trustee, in the name of and at the expense of the Company)
shall mail to Holders of the Notes a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
2.13 RECORD DATE.
The record date for purposes of determining the identity of
Holders of the Notes entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA <section> 316(c).
2.14 CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and, if
it does so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes and that reliance
may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee of any change in the
CUSIP number.
ARTICLE III
REDEMPTION AND PREPAYMENT
3.1 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If the Company is required to make an offer to purchase Notes
pursuant to the provisions of Sections 4.10 or 4.15, it shall furnish to
the Trustee, at least 30 days before the scheduled purchase date, an
Officers' Certificate setting forth (i) the Section of this Indenture
pursuant to which the offer to purchase shall occur, (ii) the offer's
terms, (iii) the purchase price, (iv) the principal amount of the Notes to
be purchased, and (v) a statement to the effect that (a) the Company or one
of its Subsidiaries has made an Asset Sale and there are Excess Proceeds
aggregating more than $5.0 million and the amount of such Excess Proceeds,
or (b) a Change of Control has occurred, as applicable.
3.2 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be purchased in an Asset
Sale Offer or redeemed at any time, the Trustee shall select the Notes to
be purchased or redeemed among the Holders of the Notes in compliance with
the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a PRO
RATA basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously
called for redemption. In the event that less than all of the Notes
properly tendered in an Asset Sale Offer are to be purchased, the
particular Notes to be purchased shall be selected promptly upon the
expiration of such Asset Sale Offer.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for
partial purchase or redemption, the principal amount thereof to be
purchased or redeemed. Notes and portions of Notes selected shall be in
amounts of $1,000 or whole multiples of $1,000; except that if all of the
Notes of a Holder are to be purchased or redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000,
shall be purchased or redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
In the event the Company is required to make an Asset Sale Offer
pursuant to Sections 3.09 and 4.10 hereof and the amount of Excess Proceeds
to be applied to such purchase would result in the purchase of a principal
amount of Notes which is not evenly divisible by $1,000, the Trustee shall
promptly refund to the Company the portion of such Excess Proceeds that is
not necessary to purchase the immediately lesser principal amount of Notes
that is so divisible.
3.3 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a purchase or
redemption date, the Company shall mail or cause to be mailed, by first
class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER,
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional.
3.5 DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of,
and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
3.6 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder and deliver at the expense of the Company a new
Note (accompanied by a notation of the Note Guarantee duly endorsed by the
Guarantors) equal in principal amount to the unredeemed portion of the Note
surrendered.
3.7 OPTIONAL REDEMPTION.
(a) On or after April 15, 1999, the Company shall have the
option to redeem the Notes, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on April 15 of the years indicated below:
YEAR PERCENTAGE
1999 106.125%
2000 104.083%
2001 102.042%
2002 and thereafter 100.000%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
3.8 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
3.9 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders to purchase Notes (an
"ASSET SALE OFFER"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the
extent that a longer period is required by applicable law (the "OFFER
PERIOD"). No later than five Business Days after the termination of the
Offer Period (the "PURCHASE DATE"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.10
hereof (the "OFFER AMOUNT") or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer. Payment
for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid
interest, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Asset
Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased and
may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days
before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes to
be purchased pursuant to the terms of Section 3.02 hereof (with such
adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued (or transferred by book entry) new Notes (accompanied by a notation
of the Note Guarantee duly endorsed by the Guarantors) equal in principal
amount to the unpurchased portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, pursuant to the terms of Section 3.02 hereof,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09. The
Company, the depositary or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and mail or
deliver such new Note (accompanied by a notation of the Note Guarantee duly
endorsed by the Guarantors) to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company shall publicly announce the results of the Asset Sale Offer on
the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE IV
COVENANTS
4.1 Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium and Liquidated Damages, if any, and interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any,
and interest shall be considered paid on the date due if the Paying Agent,
if other than the Company or a Guarantor, holds as of 10:00 a.m. Eastern
Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without regard to
any applicable grace period) at the same rate to the extent lawful.
4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company or the Guarantors in respect of the
Notes and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of New York for such
purposes. The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any
such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03.
4.3 REPORTS.
Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company shall (i) furnish to the
Trustee and to all Holders all quarterly and annual financial information
that would be required to be contained in a filing with the SEC on Forms
l0-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) file a
copy of all such information and any other information required by Section
13 or 15(d) of the Exchange Act with the SEC for public availability
(unless the SEC will not accept such a filing) and file such information
with the Trustee and make such information available to investors,
securities analysts and broker-dealers who request it in writing.
Notwithstanding the foregoing, to the extent permitted under the rules and
regulations of the SEC, the Company may instead supply such information
with respect to Holding. The Company shall at all times comply with TIA
<section> 314(a).
4.4 COMPLIANCE CERTIFICATE.
(a) Each of the Company and the Guarantors shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries and the Guarantors during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to
determining whether the Company, its Subsidiaries or such Guarantors has
kept, observed, performed and fulfilled their respective obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company, its
Subsidiaries or such Guarantors, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company
or such Guarantor, as the case may be, is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company,
its Subsidiaries or such Guarantor, as the case may be, is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article Four or
Article Five hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) Each of the Company and the Guarantors shall, so long as any
of the Notes are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action the
Company or such Guarantor, as the case may be, is taking or proposes to
take with respect thereto.
4.5 TAXES.
The Company shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
4.6 STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of
this Indenture; and each of the Company and the Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
4.7 RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend
or make any distribution on account of the Company's or any of its
Subsidiaries' Equity Interests (other than: dividends or distributions
payable in Equity Interests of the Person making such dividend or
distribution, other than Disqualified Stock; or dividends or distributions
payable to the Company or any Wholly Owned Subsidiary of the Company that
is a Guarantor); (ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any Subsidiary or other
Affiliate of the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Subsidiary of the Company that is a Guarantor);
(iii) purchase, redeem or otherwise acquire or retire for value any
Indebtedness (other than the 1994 Notes, the Notes and Indebtedness between
or among the Company and its Subsidiaries or between or among such
Subsidiaries) that is PARI PASSU with or subordinated to the Notes or any
Note Guarantee; (iv) directly or indirectly make any loan or advance to, or
make any payment to, Holding; or (v) make any Restricted Investment (all
such payments and other actions set forth in clauses (i) through (v) above
being collectively referred to as "Restricted Payments"), unless, at the
time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, (A) in the case of any Restricted
Payment other than as defined by clause (i) above, together with the
aggregate of all other Restricted Payments made by the Company and its
Subsidiaries after April 21, 1994 (including Restricted Payments permitted
by the next succeeding paragraph (other than such Restricted Payments
permitted by clauses (iv), (v) and (vi) of the next succeeding paragraph)),
or (B) in the case of any Restricted Payment defined in clause (i) above,
together with the aggregate of all other Restricted Payments made by the
Company and its Subsidiaries after April 21, 1994 (including Restricted
Payments permitted by the next succeeding paragraph (other than Restricted
Payments permitted by clauses (iv) and (v) of the next succeeding
paragraph)), is less than the sum of (x) 50% of the sum of the Consolidated
Net Income and Consolidated Step-Up Depreciation and Amortization of the
Company for the period (taken as one accounting period) from the beginning
of the first fiscal quarter that began after April 21, 1994 to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment
(or, if such Consolidated Net Income plus Consolidated Step-Up Depreciation
and Amortization for such period is a deficit, 100% of such deficit), plus
(y) 100% of the aggregate net cash proceeds received by the Company from
the issue or sale since April 21, 1994 of Equity Interests of the Company
or of debt securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or convertible debt
securities) sold to a Subsidiary of the Company and other than Disqualified
Stock or debt securities that have been converted into Disqualified Stock).
The foregoing provisions shall not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at
said date of declaration such payment would have complied with the
provisions of this Indenture; (ii) the redemption, repurchase, retirement
or other acquisition of any Equity Interests of the Company in exchange
for, or out of the proceeds of, the substantially concurrent sale (other
than to a Subsidiary of the Company) of other Equity Interests of the
Company (other than any Disqualified Stock); (iii) the defeasance,
redemption or repurchase of PARI PASSU or subordinated Indebtedness in a
Permitted Refinancing; (iv) a Restricted Payment to Holding pursuant to the
Tax Sharing Agreement as the same may be amended from time to time in a
manner that is not materially adverse to the Company; (v) a Restricted
Payment to Holding to pay its operating and administrative expenses
including, without limitation, directors fees, legal and audit expenses,
SEC compliance expenses and corporate franchise and other taxes, not to
exceed in any fiscal year $500,000; (vi) a Restricted Payment to Holding to
pay management fees not to exceed $750,000 in any fiscal year of the
Company; (vii) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Holding pursuant to any
management equity subscription agreement or stock option agreement in
effect as of April 21, 1994; PROVIDED, HOWEVER, that (a) the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1 million and (b) no Default or Event of
Default shall have occurred and be continuing immediately after such
transaction; and (viii) Investments by the Company in joint ventures or
similar projects in a business similar to that conducted by the Company and
its Subsidiaries on the Issuance Date in an aggregate amount not to exceed
$1 million.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which
the calculations required by this Section were computed, which calculations
may be based upon the Company's latest available financial statements.
4.8 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (a)(i) pay dividends or make any other
distributions to the Company or any of its Subsidiaries (A) on its Capital
Stock or (B) with respect to any other interest or participation in, or
measured by, its profits, or (ii) pay any indebtedness owed to the Company
or any of its Subsidiaries, (b) make loans or advances to the Company or
any of its Subsidiaries or (c) transfer any of its properties or assets to
the Company or any of its Subsidiaries, except for such encumbrances or
restrictions existing under or by reasons of (i) Existing Indebtedness as
in effect on the Issuance Date, (ii) the Credit Facility as in effect on
the Issuance Date, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, PROVIDED that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings
are no more restrictive with respect to such dividend and other payment
restrictions than those contained in the Credit Facility as in effect on
the Issuance Date, (iii) the 1994 Indenture and the 1994 Notes, (iv) this
Indenture and the Notes, (v) applicable law, (vi) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of
its Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired,
PROVIDED that the Consolidated Cash Flow of such Person, to the extent of
such restriction, is not taken into account in determining whether such
acquisition was permitted by the terms of this Indenture, (vii) by reason
of customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (viii)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (c)
above on the property so acquired, or (ix) permitted Refinancing
Indebtedness, PROVIDED that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive than those
contained in the agreements governing the Indebtedness being refinanced.
4.9 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guaranty or otherwise become directly or indirectly liable with respect to
(collectively, "incur" and correlatively, an "incurrence" of) any
Indebtedness (including Acquired Debt) and the Company shall not issue any,
and shall not permit any of its Subsidiaries to issue any, shares of
Disqualified Stock; PROVIDED, HOWEVER, that the Company may incur
Indebtedness or issue shares of Disqualified Stock if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or
such Disqualified Stock is issued would have been at least 2.25 to 1
determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom and including the earnings of any business acquired
by the Company or any of its Subsidiaries with the proceeds therefrom), as
if the additional Indebtedness had been incurred, or the Disqualified Stock
had been issued, as the case may be, at the beginning of such four-quarter
period. In addition, each of the following Indebtedness shall be
subordinated in right of payment to the Notes or the Note Guarantees, as
the case may be, at least to the same extent as the Notes are subordinated
to Senior Indebtedness: (A) all Indebtedness that does not provide for all
interest payments to be made in cash; (B) all Indebtedness of the Company
to any of its Subsidiaries; and (C) any Indebtedness of the Company and its
Subsidiaries if at the time of incurrence thereof, Indebtedness of the
Company and the Guarantors that is PARI PASSU in right of payment to the
Notes and the Note Guarantees (including, on a pro forma basis, the
Indebtedness to be incurred) exceeds $100 million other than the 1994 Notes
and the Notes.
The foregoing limitations shall not apply to (a) revolving credit
Indebtedness and letters of credit pursuant to the Credit Facility in an
aggregate principal amount not to exceed at any one time outstanding the
greater of (i) $60 million in principal amount (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company thereunder), less the aggregate amount of all
repayments after April 21, 1994 that permanently reduce the commitment
under the Credit Facility, and (ii) the Borrowing Base; (b) the Existing
Indebtedness; (c) the Notes (other than any Additional Notes) or any Note
Guarantee; (d) the incurrence by the Company or any of its Subsidiaries of
Refinancing Indebtedness; PROVIDED, HOWEVER, that such Refinancing
Indebtedness is a Permitted Refinancing; (e) Indebtedness between or among
the Company and any of its Wholly Owned Subsidiaries that are Guarantors;
(f) Indebtedness from the Company to Holding PROVIDED that the advances
evidenced by such Indebtedness are permitted under Section 4.07 hereof; (g)
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding; and (h) the
incurrence by the Company or its Subsidiaries of Indebtedness (in addition
to Indebtedness permitted by any other clause of this paragraph) in an
aggregate principal amount at any time outstanding not to exceed the sum of
$1 million at any one time.
Notwithstanding anything to the contrary, the Company and its
Subsidiaries shall not be permitted to incur any additional Senior
Indebtedness unless it is secured.
4.10 ASSET SALES.
The Company shall not, and shall not permit any of its
Subsidiaries to, conduct an Asset Sale, unless (x) the Company (or the
Subsidiary, as the case may be) receives consideration at the time of such
Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee no later than immediately prior to the
consummation of such proposed Asset Sale with respect to any Asset Sale
involving aggregate payments in excess of $1 million) of the assets sold or
otherwise disposed of and (y) at least 75% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash;
PROVIDED, HOWEVER, that the amount of (A) any liabilities (as shown on the
Company's or such Subsidiary's most recent balance sheet or in the notes
thereto), of the Company or any Subsidiary (other than liabilities that are
by their terms subordinated to the Notes or any Guarantee thereof) that are
assumed by the transferee of any such assets and (B) any notes or other
obligations received by the Company or any such Subsidiary from such
transferee that are immediately converted by the Company or such Subsidiary
into cash (to the extent of the cash received), shall be deemed to be cash
for purposes of this Section 4.10.
Within 180 days after any Asset Sale, the Company may apply the
Net Proceeds from such Asset Sale to either (a) permanently reduce Senior
Indebtedness, or (b) make an investment in another business or capital
expenditure or other long-term/tangible assets, in each case, in the same
or a similar line of business as the Company was engaged in on the Issuance
Date. Pending the final application of any such Net Proceeds, the Company
may temporarily reduce Senior Bank Indebtedness or otherwise invest such
Net Proceeds in Cash Equivalents. Any Net Proceeds from the Asset Sale
that are not applied or invested as provided in the first sentence of this
paragraph shall be deemed to constitute "Excess Proceeds." If the aggregate
amount of Excess Proceeds exceeds $5 million, upon completion of the Asset
Sale Offer required under the 1994 Indenture, the Company shall make an
Asset Sale Offer to all Holders of Notes to purchase the maximum principal
amount of Notes, that is an integral multiple of $1,000, that may be
purchased out of the Excess Proceeds, if any, remaining upon completion of
the Asset Sale Offer required under 1994 Indenture, at an offer price in
cash in an amount equal to 101% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, in accordance with the procedures set forth in Section 3.09
hereof. To the extent that the aggregate amount of Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company may
use such deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount
of Excess Proceeds, the Trustee shall select the Notes to be purchased in
the manner described under Section 3.02 hereof. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset to zero.
Any Asset Sale Offer pursuant to this Section 4.10 shall be made pursuant
to the provisions of Section 3.09 hereof.
The Company shall comply with the requirements of Rule 14e-l
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes in connection with an Asset Sale.
4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter
into any contract, agreement, understanding, loan, advance or Guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an
"AFFILIATE TRANSACTION"), unless (a) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Subsidiary with a Person who was not an Affiliate and (b)
the Company delivers to the Trustee (i) with respect to any Affiliate
Transaction involving aggregate payments in excess of $2 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above
and that such Affiliate Transaction has been approved by a majority of the
Board of Directors and (ii) with respect to any Affiliate Transaction
involving aggregate payments in excess of $5 million, an opinion as to the
fairness to the Company or such Subsidiary from a financial point of view
issued by an investment banking firm of national standing; PROVIDED,
HOWEVER, that (i) any employment agreement entered into by the Company or
any of its Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Subsidiary; (ii) transactions
between or among the Company and/or its Subsidiaries; (iii) transactions
permitted under Section 4.07 hereof; and (iv) the advisory fee paid to
First Atlantic Capital, Ltd. in connection with the Offering, in each
case, shall not be deemed Affiliate Transactions.
4.12 LIENS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly (i) create, incur, assume or suffer
to exist any Lien on any asset now owned or hereafter acquired by the
Company or any Subsidiary, or any income or profits therefrom or (ii)
assign or convey any right to receive income therefrom, in any such case to
secure any Indebtedness (other than Senior Indebtedness of the Company or
Senior Indebtedness of a Guarantor permitted to be incurred pursuant to
this Indenture) unless contemporaneously therewith or prior thereto,
effective provision is made (evidenced by a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the Trustee)
whereby the Notes or a Note Guarantee are secured equally and ratably with
such other Indebtedness (or if such other Indebtedness is subordinated to
the Notes or a Note Guarantee, the Notes or a Note Guarantee, as the case
may be, are secured on a basis with the same relative priority to such
other Indebtedness).
4.13 ADDITIONAL GUARANTEES.
If the Company or any of its Subsidiaries shall (i) transfer or
cause to be transferred, in one or a series of related transactions (other
than a transaction or series of related transactions constituting a
Restricted Payment permitted pursuant to Section 4.07 hereof), any assets,
businesses, divisions, real property or equipment having a book value in
excess of $1 million to any Subsidiary that is not a Guarantor or (ii)
acquire another Subsidiary having (a) total assets with a book value in
excess of $1 million or (b) Consolidated Cash Flow in excess of $1 million,
then the Company shall cause such transferee or acquired Subsidiary to (A)
execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such transferee or
acquired Subsidiary shall unconditionally guarantee (a "Note Guarantee," as
defined in Article 10 hereof), on a senior subordinated basis, all of the
Company's obligations under the Notes on the terms set forth in Article 10
hereof and (B) deliver to the Trustee an Opinion of Counsel as to the
enforceability of such Note Guarantee.
4.14 CORPORATE EXISTENCE.
Subject to Article 5 and Article 10 hereof, as the case may be,
the Company and each of the Guarantors shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of
each of their Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company, any such Guarantor or any such Subsidiary, as the case may be,
and (ii) the rights (charter and statutory), licenses and franchises of the
Company, the Guarantors and their respective Subsidiaries; PROVIDED,
HOWEVER, that the Company and the Guarantors shall not be required to
preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of their respective Subsidiaries, if
the Board of Directors of Holding shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company, the Guarantors and their Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of
the Notes.
4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company shall
make an offer to each Holder to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "CHANGE OF CONTROL OFFER") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, to the date of purchase
(the "CHANGE OF CONTROL PAYMENT"). Within 10 days following any Change of
Control, the Company will mail a notice to each Holder stating: (i) that
the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment; (ii) the purchase
price and the purchase date, which will be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the "CHANGE OF
CONTROL PAYMENT DATE"); (iii) that any Note not tendered will continue to
accrue interest; (iv) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the Change
of Control Payment Date; (v) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (vi) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii) that
Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes in connection
with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of
all Notes or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof tendered to the Company.
The Paying Agent shall promptly mail to each Holder of Notes so accepted
the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered by such Holder, if any; PROVIDED, that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. Prior to making the Change of Control Payment, but in
any event within 90 days following a Change of Control, the Company shall
either repay all outstanding Designated Senior Indebtedness or obtain the
requisite consents, if any, under all agreements governing outstanding
Designated Senior Indebtedness to permit the repurchase of Notes required
by this Section 4.15. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change
of Control Payment Date.
4.16 NO SENIOR SUBORDINATED INDEBTEDNESS.
Notwithstanding the provisions of Section 4.09 hereof, (i) the
Company shall not incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right
of payment to any Senior Indebtedness and senior in any respect in right of
payment to the Notes, and (ii) no Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to its Senior Indebtedness and
senior in any respect in right of payment to its Note Guarantee.
ARTICLE V
SUCCESSORS
5.1 Merger, Consolidation Or Sale Of Assets.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its properties or assets in one or more related transactions, to another
Person unless (i) the Company is the surviving Person formed by or
surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee,
under the Notes and this Indenture; (iii) immediately after such
transaction no Default or Event of Default exists; and (iv) the Company or
any Person formed by or surviving any such consolidation or merger, or to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have Consolidated Net Worth
(immediately after the transaction) equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the transaction
and (B) shall, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in Section 4.09 hereof.
5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company or the Company and its Subsidiaries on a
consolidated basis in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to the "Company" or the "Guarantor," as the case may be, shall refer
instead to the successor corporation and not to the Company or the
Guarantor, as the case may be), and may exercise every right and power of
the Company or the Guarantors, as the case may be, under this Indenture
with the same effect as if such successor Person had been named as the
Company or Guarantor, as the case may be, herein; PROVIDED, HOWEVER, that
the predecessor Company and the predecessor Subsidiaries that are
Guarantors shall not be relieved from the obligation to pay the principal
of and interest on the Notes except in the case of a sale of all of the
Company's assets that meets the requirements of Section 5.01 hereof.
The Trustee shall, at the written request of the Company and the
Holders, authenticate and deliver new Notes representing such successor
pursuant to the terms of Section 2.02 hereof.
ARTICLE VI
DEFAULTS AND REMEDIES
6.1 Events Of Default.
An "Event of Default" occurs if:
(a) the Company or the Guarantors default in the payment when
due of interest or Liquidated Damages, if any, on the Notes (whether or not
prohibited by the subordination provisions of Article 10 or Article 11
hereof, as the case may be) and such default continues for a period of 30
days;
(b) the Company or the Guarantors default in the payment when
due of principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of Article 10 or Article 11
hereof, as the case may be) when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to
purchase) or otherwise;
(c) the Company fails to comply with any of the provisions of
Section 4.07, 4.09, 4.10 or 4.15 hereof;
(d) the Company or the Guarantors fail to observe or perform any
other covenant, representation, warranty or other agreement in this
Indenture or the Notes for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in principal amount of the Notes
(including Additional Notes, if any) then outstanding;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company, Holding or
any of their respective Subsidiaries (or the payment of which is guaranteed
by the Company, Holding or any of their respective Subsidiaries) whether
such Indebtedness or Guarantee now exists, or is created after the Issuance
Date, which default (i) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness (a "PAYMENT DEFAULT") or
(ii) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $2 million or more;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company, Holding or any of their respective Subsidiaries and such judgment
or judgments remain unpaid or undischarged for a period (during which
execution shall not be effectively stayed) of 60 days, PROVIDED that the
aggregate of all such undischarged judgments exceeds $2 million;
(g) except as permitted by this Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Guarantor
(or its successors or assigns), or any Person acting on behalf of such
Guarantor (or its successors or assigns), shall deny or disaffirm its
obligations or shall fail to comply with any obligations under its Note
Guarantee.
(h) the Company, any Guarantor or any of their respective
Subsidiaries pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, any Guarantor or any
of their respective Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company, any Guarantor or
any of their respective Subsidiaries or for all or substantially all
of the property of the Company, any Guarantor or any of their
respective Subsidiaries; or
(iii) orders the liquidation of the Company, any Guarantor
or any of their respective Subsidiaries and the order or decree
remains unstayed and in effect for 60 consecutive days.
6.2 ACCELERATION.
If any Event of Default (other than an Event of Default specified
in clause (h) or (i) of Section 6.01 hereof with respect to the Company,
any Guarantor or any of their respective Subsidiaries) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Notes (including Additional Notes, if any) may
declare all the Notes to be due and payable immediately; PROVIDED, HOWEVER,
that if any Indebtedness is outstanding pursuant to the Credit Facility,
upon a declaration of acceleration, the principal and interest on the Notes
shall be payable, upon the earlier of (i) the day which is five Business
Days after notice of acceleration is given to the Company and the lender
under the Credit Facility or (ii) the date of acceleration of the
Indebtedness under the Credit Facility. Notwithstanding the foregoing, if
an Event of Default specified in clause (h) or (i) of Section 6.01 hereof
occurs with respect to the Company, Holding or any of their respective
Subsidiaries, all outstanding Notes shall be due and payable immediately
without further action or notice. The Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including
Additional Notes, if any) by written notice to the Trustee may on behalf of
all of the Holders rescind any acceleration of the Notes and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
If an Event of Default occurs on or after April 15, 1999 by
reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.07 hereof, then, upon acceleration
of the Notes, an equivalent premium shall also become and be immediately
due and payable, to the extent permitted by law, anything in this Indenture
or in the Notes to the contrary notwithstanding. If an Event of Default
occurs prior to April 15, 1999 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to
such date, then, upon acceleration of the Notes, an additional premium
shall also become and be immediately due and payable in an amount, of
107.350% of the principal amount that would otherwise be due but for the
provisions of this sentence.
6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium
and Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture, including, but
not limited to, notifying the Guarantors pursuant to the terms hereof and
the Note Guarantees.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of any such Default
or Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
6.4 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding (including Additional Notes, if any) by
notice to the Trustee may on behalf of the Holders of all of the Notes
waive any existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment
of the principal of, premium and Liquidated Damages, if any, or interest
on, the Notes (including in connection with an offer to purchase)
(PROVIDED, HOWEVER, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including Additional Notes, if any)
may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
6.5 CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes (including Additional Notes, if any) may direct the time, method and
place of conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in
personal liability.
6.6 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes (including Additional Notes, if any) make a written
request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense reasonably anticipated by the
Trustee in complying with such request;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes (including Additional Notes,
if any) do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of such Holder.
6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes, including the
Guarantors), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or securities or
other property payable or deliverable upon the exchange of the Notes or
upon any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
SECOND: to the holders of Senior Indebtedness of the Company or
the Guarantors, as the case may be, to the extent required by Article 10 or
Article 11 hereof, as applicable;
THIRD: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and Liquidated
Damages, if any, and interest, respectively; and
FOURTH: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes (including Additional Notes, if any) .
ARTICLE VII
TRUSTEE
7.1 Duties Of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper
Person. The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled, upon
reasonable notice and during normal business hours, to examine the books,
records and premises of the Company, personally or by agent or attorney so
long as such examination does not interfere with the Company's business.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that in the reasonable discretion of the Trustee, might be
incurred by it in compliance with such request or direction.
7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, the
Guarantors or any Affiliate of the Company or the Guarantors with the same
rights it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties.
The Trustee is also subject to Sections 7.10 and 7.11 hereof.
7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal
of, premium and Liquidated Damages, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice
is in the interests of the Holders of the Notes.
7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA <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)(2).
The Trustee shall also transmit by mail all reports as required by TIA
<section> 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA
<section> 313(d). The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
7.7 COMPENSATION AND INDEMNITY.
The Company and the Guarantors shall pay to the Trustee from time
to time reasonable compensation for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company and the
Guarantors shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company and the Guarantors shall indemnify the Trustee
against any and all losses, liabilities or expenses incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors (including this Section
7.07) and defending itself against any claim (whether asserted by the
Company, any Guarantor or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company and the
Guarantors of their obligations hereunder. The Company and the Guarantors
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company and the Guarantors shall
pay the reasonable fees and expenses of such counsel. The Company and the
Guarantors need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's and the Guarantors' payment obligations
in this Section, the Trustee shall have, and the Company does hereby grant,
assign and convey to the Trustee, to the benefit of the Holders, a security
interest in and a Lien on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge
of this Indenture.
The Trustee's right to receive payment of any amounts due under
this Section 7.07 shall not be subordinate to any other liability or
indebtedness of the Company (even though the Notes may be subordinated) and
the payments of principal and interest on the Notes shall be subordinate to
the Trustee's right to receive such payment.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA <section>
313(b)(2) to the extent applicable.
7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of
Notes of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) may appoint a
successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, any Guarantor, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes (including Additional Notes,
if any) may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, PROVIDED all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's and the Guarantors' obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee.
7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act
shall be the successor Trustee.
7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital
and surplus of at least $100 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA paragraphs 310(a)(1), (2) and (5). The Trustee
is subject to TIA paragraph 310(b).
7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA paragraph 311(a), excluding any
creditor relationship listed in TIA paragraph 311(b). A Trustee who has
resigned or been removed shall be subject to TIA paragraph 311(a) to the
extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.1 Option To Effect Legal Defeasance Or Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate delivered
to the Trustee, at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article Eight.
8.2 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes and Note Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE").
For this purpose, Legal Defeasance means that the Company and the
Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes and the Note Guarantees,
which shall thereafter be deemed to be "outstanding" only for the purposes
of Section 8.05 hereof and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all its other obligations under
such Notes and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium and Liquidated Damages, if any, and
interest on such Notes when such payments are due, (b) the Company's and
the Guarantors' obligations with respect to such Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's and the Guarantors' obligations
in connection therewith and (d) this Article Eight. Subject to compliance
with this Article Eight, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
8.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, be released from their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15 and
4.16 hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes and the Note Guarantees shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company and the Guarantors may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01
hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(e) through 6.01(f) and Section 6.01(h) and 6.01(i) hereof shall not
constitute Events of Default.
8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars, non-
callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and
Liquidated Damages, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as
the case may be, of such principal or installment of principal of, premium
and Liquidated Damages, if any, or interest on the outstanding Notes;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the Issuance Date, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Notes pursuant to this
Article Eight concurrently with such incurrence) or insofar as Sections 6.0
1(h) or 6.01(i) hereof is concerned, at any time in the period ending on
the day on which all applicable preference periods have run;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the day on which all applicable preference
periods have run, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over the other creditors of the Company or
the Guarantors or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or the Guarantors; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of
principal, premium and Liquidated Damages, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
the cash or non-callable Government Securities deposited pursuant to
Section 8.04 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
8.6 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium
or Liquidated Damages, if any, or interest, if any, on any Note and
remaining unclaimed for two years after such principal, premium or
Liquidated Damages, if any, or interest, if any, have become due and
payable shall be paid to the Company on its written request accompanied by
an Officers' Certificate or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
8.7 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's and the
Guarantors' obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as
the case may be; PROVIDED, HOWEVER, that, if the Company and the Guarantors
make any payment of principal of, premium or Liquidated Damages, if any, or
interest, if any, on any Note following the reinstatement of its
obligations, the Company and the Guarantors shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.1 Without Consent Of Holders Of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of the Notes in the case of a merger or
consolidation pursuant to Article Five or Article 10 hereof, as the case
may be;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes (including providing for additional
Note Guarantees pursuant to Section 4.13 hereof) or that does not adversely
affect the legal rights hereunder of any Holder of the Notes;
(e) to provide for the issuance of Additional Notes in
accordance with the provisions set forth herein; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company
and the Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
9.2 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the
Notes with the consent of the Holders of at least a majority in principal
amount of the Notes (including Additional Notes, if any) then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on
the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes (including Additional
Notes, if any) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company and the
Guarantors in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental Indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Notes (including Additional Notes, if any) then outstanding may waive
compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by
a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter or waive any of the provisions with respect to the redemption
of the Notes;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium or Liquidated Damages, if any, or interest on the
Notes (except a rescission of acceleration of the Notes by the Holders of
at least a majority in aggregate principal amount of the then outstanding
Notes (including Additional Notes, if any) and a waiver of the payment
default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium or Liquidated Damages, if any, or
interest on the Notes;
(g) waive a redemption payment with respect to any Note;
(h) make any change to the subordination provisions of Article
10 or Article 11 hereof that adversely affects Holders;
(i) except pursuant to Article 8 and Article 10 hereof, release
any Guarantor from its obligations under its Note Guarantee, or change any
Note Guarantee in any manner that would adversely affect Holders; or
(j) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or a supplemental Indenture that complies
with the TIA as then in effect.
9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
9.5 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new
Notes (accompanied by a notation of the Note Guarantee duly endorsed by the
Guarantors) that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. The Company and the Guarantors may not sign an amendment or
supplemental Indenture until the Board of Directors of the Company approves
it. In executing any amended or supplemental indenture, the Trustee shall
be entitled to receive and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE X
NOTE GUARANTEES
10.1 Note Guarantee.
The Guarantors and each Subsidiary of the Company which in
accordance with Section 4.13 hereof is required to guarantee the
obligations of the Company under the Notes upon execution of a counterpart
of this Indenture, hereby jointly and severally unconditionally guarantees
(each such guarantee, a "NOTE GUARANTEE") to each Holder of a Note
authenticated and delivered by the Trustee irrespective of the validity or
enforceability of this Indenture, the Notes or the obligations of the
Company under this Indenture or the Notes, that: (i) the principal of,
interest and Liquidated Damages, if any, on the Notes will be paid in full
when due, whether at the maturity or interest payment or mandatory
redemption date, by acceleration, call for redemption or otherwise, and
interest on the overdue principal of and interest, if any, on the Notes and
all other obligations of the Company to the Holders or the Trustee under
this Indenture or the Notes will be promptly paid in full or performed, all
in accordance with the terms of this Indenture and the Notes; and (ii) in
case of any extension of time of payment or renewal of any Notes or any of
such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity,
by acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Guarantor will be obligated to pay the
same whether or not such failure to pay has become an Event of Default
which could cause acceleration pursuant to Section 6.02 hereof. Each
Guarantor agrees that this is a guarantee of payment not a guarantee of
collection.
Each Guarantor hereby agrees that its obligations with regard to
this Note Guarantee shall be joint and several, unconditional, irrespective
of the validity or enforceability of the Notes or the obligations of the
Company under this Indenture, the absence of any action to enforce the
same, the recovery of any judgment against the Company or any other obligor
with respect to this Indenture, the Notes or the obligations of the Company
under this Indenture or the Notes, any action to enforce the same or any
other circumstances (other than complete performance) which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each
Guarantor further, to the extent permitted by law, waives and relinquishes
all claims, rights and remedies accorded by applicable law to guarantors
and agrees not to assert or take advantage of any such claims, rights or
remedies, including but not limited to: (a) any right to require the
Trustee, the Holders or the Company (each, a "BENEFITED PARTY") to proceed
against the Company or any other Person or to proceed against or exhaust
any security held by a Benefited Party at any time or to pursue any other
remedy in any Benefited Party's power before proceeding against such
Guarantor; (b) the defense of the statute of limitations in any action
hereunder or in any action for the collection of any Indebtedness or the
performance of any obligation hereby guaranteed; (c) any defense that may
arise by reason of the incapacity, lack of authority, death or disability
of any other Person or the failure of a Benefited Party to file or enforce
a claim against the estate (in administration, bankruptcy or any other
proceeding) of any other Person; (d) demand, protest and notice of any kind
including but not limited to notice of the existence, creation or incurring
of any new or additional Indebtedness or obligation or of any action or
non-action on the part of such Guarantor, the Company, any Benefited Party,
any creditor of such Guarantor, the Company or on the part of any other
Person whomsoever in connection with any Indebtedness or obligations hereby
guaranteed; (e) any defense based upon an election of remedies by a
Benefited Party, including but not limited to an election to proceed
against such Guarantor for reimbursement; (f) any defense based upon any
statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more burdensome than that
of the principal; (g) any defense arising because of a Benefited Party's
election, in any proceeding instituted under the Federal Bankruptcy Code,
of the application of Section 111l(b)(2) of the Federal Bankruptcy Code; or
(h) any defense based on any borrowing or grant of a security interest
under Section 364 of the Federal Bankruptcy Code. Each Guarantor hereby
covenants that its Note Guarantee will not be discharged except by complete
performance of the obligations contained in its Note Guarantee and this
Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any
Custodian, trustee, or similar official acting in relation to either the
Company or such Guarantor, any amount paid by the Company or such Guarantor
to the Trustee or such Holder, the applicable Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor agrees that it will not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between such Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Section 6.02 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company or any other obligor on the Notes of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.02 hereof, those
obligations (whether or not due and payable) will forthwith become due and
payable by such Guarantor for the purpose of this Note Guarantee.
10.2 SUBORDINATION.
Each Guarantor, the Trustee, and each Holder by accepting a Note
agrees, that the obligations of such Guarantor hereunder shall be
subordinated in right of payment to the prior payment in full of all
Obligations of every type whatsoever, contingent or otherwise due in
respect of Senior Indebtedness of such Guarantor and of the Company
(whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed). The subordination provisions of this Article 10
are made for the benefit of the holders of all Senior Indebtedness (whether
outstanding on the date hereof or issued hereafter) of each Guarantor, such
holders of Senior Indebtedness of each Guarantor are made obligees under
this Article 10 and such holders of Senior Indebtedness of each Guarantor
or any of them may enforce the provisions of this Article 10. Holders of
Senior Indebtedness of each Guarantor are third party beneficiaries of this
Article 10 and no amendment thereof shall be effected without the prior
written consent of the holders of a majority of the outstanding principal
amount of Senior Indebtedness of each Guarantor.
10.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to
such Guarantor or its property, in an assignment for the benefit of
creditors or any marshaling of such Guarantor's assets and liabilities:
(1) holders of Senior Indebtedness of such
Guarantor shall be entitled to receive payment in full of all
Obligations due in respect of such Senior Indebtedness of such
Guarantor (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior
Indebtedness of such Guarantor, whether or not such interest was
an allowed claim) before the Trustee or any Holder shall be
entitled to receive any payment from the Guarantor under or
pursuant to this Note Guarantee with respect to the Notes; and
(2) until all Obligations with respect to Senior
Indebtedness of such Guarantor (as provided in subsection (1)
above) are paid in full, any distribution to which the Trustee or
any Holder would be entitled but for this Article shall be made
to holders of Senior Indebtedness of such Guarantor (except that
Holders may receive securities that are subordinated in right and
priority of payment to at least the same extent as the Note
Guarantee to (a) Senior Indebtedness of such Guarantor and (b)
any securities issued in exchange for Senior Indebtedness of such
Guarantor).
10.4 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS OF THE GUARANTOR.
No Guarantor shall make any payment or distribution to the
Trustee or any Holder upon or in respect of its Note Guarantee or the
Notes, or any Obligation with respect thereto, and no Guarantor shall
acquire from the Trustee or any Holder any Notes for cash or property
(other than securities that are subordinated in right and priority of
payment to at least the same extent as its Note Guarantee to (a) Senior
Indebtedness of such Guarantor and (b) any securities issued in exchange
for Senior Indebtedness of such Guarantor) until all principal and other
Obligations with respect to the Senior Indebtedness of such Guarantor have
been paid in full if:
(i) a default in the payment when due, whether upon
acceleration or otherwise, of the principal, premium, if any, or
interest on any Senior Indebtedness of such Guarantor occurs and is
continuing beyond any applicable grace period; or
(ii) any other default on Designated Senior Indebtedness of
such Guarantor occurs and is continuing and the Trustee receives a
notice of the default from such Guarantor, or the holders of any such
Designated Senior Indebtedness of such Guarantor, stating that such
Guarantor or holders are invoking a payment blockage under this
Section 10.04(ii) (a "GUARANTOR PAYMENT BLOCKAGE NOTICE"). If the
Trustee receives any such notice, a subsequent notice received within
365 days thereafter shall not be effective for purposes of this
Section.
Each Guarantor may and shall resume payments on and distributions
in respect of its Note Guarantee, the Notes and all Obligations with
respect thereto, and may acquire such Notes, Obligations for value when:
(1) in the case of a payment default as described
in (i) above, upon the date on which such default is cured or
waived, and
(2) in the case of a nonpayment default as
described in (ii) above, on the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date
on which a Guarantor Payment Blockage Notice is received if the
maturity of such Designated Senior Indebtedness of such Guarantor
has not been accelerated, and this Article otherwise permits the
payment at the time of such payment.
10.5 ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, each Guarantor shall promptly notify each Representative of
holders of Senior Indebtedness of such Guarantor of the acceleration.
10.6 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from a
Guarantor any payment of any Obligations with respect to the Notes or any
other Obligation guaranteed hereby at a time when the Trustee or such
Holder has actual knowledge that such payment is prohibited by Section
10.03 or Section 10.04 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over
and delivered, upon written request, to, the holders of Senior Indebtedness
of such Guarantor as their interests may appear, or their Representative
under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness of such Guarantor may have been issued, as their respective
interests may appear, for application to the payment of all Obligations
with respect to Senior Indebtedness of such Guarantor remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with
their terms, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness of such Guarantor.
If a distribution is made to the Trustee or any Holder that
because of this Article 10 should not have been made to it at a time when
the Trustee or such Holder has actual knowledge that such distribution
should not have been made to it, the Trustee or such Holder who receives
the distribution shall hold it in trust for the benefit of, and, upon
written request, pay it over to, the holders of Senior Indebtedness of such
Guarantor as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness
of such Guarantor may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Indebtedness of such Guarantor remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness of such Guarantor.
With respect to any Guarantor, with respect to the holders of
Senior Indebtedness of such Guarantor, the Trustee undertakes to perform
only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness of such Guarantor shall be
read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of
such Guarantor, and shall not be liable to any such holders if the Trustee
shall pay over or distribute to or on behalf of Holders or the Company or
any other Person money or assets to which any holders of Senior
Indebtedness of such Guarantor shall be entitled by virtue of this Article
10, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
10.7 NOTICE BY A GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the Paying
Agent of any facts known to such Guarantor that would cause a payment of
any Obligations with respect to the Notes or its Note Guarantee to violate
this Article, but failure to give such notice shall not affect the
subordination of its Note Guarantee or of the Notes to the Senior
Indebtedness of such Guarantor as provided in this Article.
10.8 SUBROGATION.
With respect to any Guarantor, after all Senior Indebtedness of
such Guarantor is paid in full and until the Notes are paid in full,
Holders shall, without duplication, be subrogated to the rights of holders
of Senior Indebtedness of such Guarantor to receive distributions
applicable to Senior Indebtedness of such Guarantor to the extent that
distributions otherwise payable to the Holders have been applied to the
payment of Senior Indebtedness of such Guarantor. A distribution made
under this Article to holders of Senior Indebtedness of such Guarantor that
otherwise would have been made to Holders is not, as between such Guarantor
and Holders, a payment by the Company on the Senior Indebtedness of such
Guarantor.
10.9 RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders
of Senior Indebtedness of such Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Guarantor and the
Holders, the obligation of such Guarantor, which is absolute and
unconditional, to pay principal of and interest on the Notes in
accordance with their terms;
(2) affect the relative rights of Holders and
creditors of such Guarantor other than their rights in relation
to holders of Senior Indebtedness of such Guarantor; or
(3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders of Senior Indebtedness
of such Guarantor set forth herein to receive distributions and
payments otherwise payable to Holders.
10.10 SUBORDINATION MAY NOT BE IMPAIRED BY ANY GUARANTOR.
With respect to any Guarantor, no right of any holder of Senior
Indebtedness of such Guarantor to enforce the subordination of the Note
Guarantee shall be impaired by any act or failure to act by such Guarantor
or any Holder or by failure of such Guarantor or any Holder to comply with
this Indenture.
10.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
With respect to any Guarantor, whenever a distribution is to be
made or a notice given to holders of Senior Indebtedness of such Guarantor,
the distribution may be made and the notice given to their Representative.
Upon any payment or distribution of assets referred to in this
Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10.
10.12 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee shall
have received at its Corporate Trust Office at least five Business Days
prior to the date of such payment written notice of facts that would cause
the payment of any Obligations with respect to the Note Guarantee to
violate this Article. Only a Guarantor, the holder of any Senior
Indebtedness of such Guarantor, or the Representative of holders of Senior
Indebtedness of such Guarantor may give the notice. Nothing in this
Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
With respect to any Guarantor, the Trustee in its individual or
any other capacity may hold Senior Indebtedness of such Guarantor with the
same rights it would have if it were not Trustee.
10.13 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 10, and appoints the Trustee the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not
file a proper proof of claim or proof of debt in the form required in any
proceeding relative to any Guarantor referred to in Section 6.09 hereof at
least 30 days before the expiration of the time to file such claim, the
holders (or their Representative) of Senior Indebtedness of each Guarantor
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Notes.
10.14 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof, each beneficiary
hereof, hereby confirms that it is its intention that the Note Guarantee by
such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing
intention, each such Person hereby irrevocably agrees that the obligation
of such Guarantor under its Note Guarantee under this Article 10 shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 10,
result in the obligations of such Guarantor in respect of such maximum
amount not constituting a fraudulent conveyance. Each beneficiary under
the Note Guarantees, by accepting the benefits hereof, confirms its
intention that, in the event of a bankruptcy, reorganization or other
similar proceeding of the Company or any Guarantor in which concurrent
claims are made upon such Guarantor hereunder, to the extent such claims
will not be fully satisfied, each such claimant with a valid claim against
the Company shall be entitled to a ratable share of all payments by such
Guarantor in respect of such concurrent claims.
10.15 EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that this Indenture shall be executed on
behalf of each Guarantor by its President or one of its Vice Presidents and
that the notation on each Note relating to the Note Guarantee shall be
executed on behalf of each Guarantor by an Officer.
10.16 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person
whether or not it is affiliated with such Guarantor unless (i) subject to
the provisions of the following paragraph and Section 10.17 hereof, the
Person formed by or surviving any such consolidation or merger (if other
than such Guarantor) assumes all the obligations of such Guarantor pursuant
to a supplemental indenture in a form reasonably satisfactory to the
Trustee, under its Note Guarantee and this Indenture, (ii) immediately
after giving effect to such transaction, no Default or Event of Default
exists, and (iii) in the case of any Guarantor other than Holding, such
Guarantor, or any Person formed by or surviving any such consolidation or
merger, (A) shall have Consolidated Net Worth (immediately after giving
effect to such transaction), equal to or greater than the Consolidated Net
Worth of such Guarantor immediately preceding the transaction and (B) will
be permitted by virtue of the Company's pro forma Fixed Charge Coverage
Ratio to incur, immediately after giving effect to such transaction, at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09 hereof. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Note Guarantee
in this Indenture and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by
the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
Notwithstanding the foregoing, (A) a Guarantor may consolidate
with or merge with or into the Company, PROVIDED, that the surviving
corporation (if other than the Company) shall expressly assume by
supplemental indenture complying with the requirements of this Indenture,
the due and punctual payment of the principal of, premium, if any, and
interest on all of the Notes, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be
performed by the Company and (B) a Guarantor may consolidate with or merge
with or into any other Guarantor.
10.17 RELEASES FOLLOWING SALE OF ASSETS.
Upon a sale or other disposition of all or substantially all of
the assets of any Guarantor (other than Holding), by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the
Capital Stock of any Guarantor, then such Guarantor (in the event of a sale
or other disposition, by way of such a merger, consolidation or otherwise,
of all of the Capital Stock of such Guarantor) or the corporation acquiring
the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
relieved of its obligations under its Note Guarantee; PROVIDED that the Net
Proceeds of such sale or other disposition are applied in accordance with
Section 4.10 hereof.
ARTICLE XI
SUBORDINATION
11.1 Subordination.
The Company agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by the Notes shall be subordinated in right
of payment to the prior payment in full of all Obligations of every type
whatsoever, contingent or otherwise due in respect of Senior Indebtedness
of the Company (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed). The subordination provisions of
this Article 11 are made for the benefit of the holders of all Senior
Indebtedness (whether outstanding on the date hereof or issued hereafter)
of the Company, such holders of Senior Indebtedness of the Company are made
obligees under this Article 11 and such holders of Senior Indebtedness of
the Company or any of them may enforce the provisions of this Article 11.
Holders of Senior Indebtedness of the Company are third party beneficiaries
of this Article 11 and no amendment hereof shall be effected without the
prior written consent of the holders of a majority of the outstanding
principal amount of Senior Indebtedness of the Company.
11.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to
the Company or its property, an assignment for the benefit of creditors or
any marshalling of the Company's assets and liabilities:
(1) holders of Senior Indebtedness of the Company
shall be entitled to receive payment in full of all Obligations
due in respect of such Senior Indebtedness of the Company
(including interest after the commencement of any such proceeding
at the rate specified in the applicable Senior Indebtedness of
the Company, whether or not such interest is an allowed claim)
before the Holders shall be entitled to receive any payment with
respect to the Notes; and
(2) until all Obligations with respect to Senior
Indebtedness of the Company (as provided in subsection (1) above)
are paid in full, any distribution to which Holders would be
entitled but for this Article shall be made to holders of Senior
Indebtedness of the Company (except that Holders may receive
securities that are subordinated in right and priority of payment
to at least the same extent as the Notes to (a) Senior
Indebtedness of the Company and (b) any securities issued in
exchange for any such Senior Indebtedness of the Company).
11.3 DEFAULT ON SENIOR INDEBTEDNESS.
The Company may not make any payment or distribution to the
Trustee or any Holder upon or in respect of the Notes, or any Obligation
with respect thereto, and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than securities that are subordinated
in right and priority of payment to at least the same extent as the Notes
to (a) Senior Indebtedness of the Company and (b) any securities issued in
exchange for Senior Indebtedness of the Company) until all principal and
other Obligations with respect to the Senior Indebtedness of the Company
have been paid in full if:
(i) a default in the payment when due, whether upon
acceleration or otherwise, of the principal of, premium, if any, or
interest on any Senior Indebtedness of the Company occurs and is
continuing beyond any applicable grace period; or
(ii) any other default on Designated Senior Indebtedness of
the Company occurs and is continuing and the Trustee receives a notice
of such default from the Company, or from, or on behalf of, the
holders of any such Designated Senior Indebtedness of the Company,
stating that it is or such holders are invoking a payment blockage
under this Section 11.03(ii) (a "PAYMENT BLOCKAGE NOTICE"). If the
Trustee receives any such notice, a subsequent notice received within
365 days thereafter shall not be effective for purposes of this
Section.
The Company may and shall resume payments on and distributions in
respect of the Notes, and all Obligations with respect thereto, and may
acquire them when:
(1) in the case of a payment default as described
in (i) above, upon the date on which such default is cured or
waived, and
(2) in the case of a nonpayment default as
described in (ii) above, on the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date
on which the applicable Payment Blockage Notice is received,
unless the maturity of any such Designated Senior Indebtedness of
the Company has been accelerated, and this Article otherwise
permits the payment at the time of such payment.
11.4 ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify each Representative of holders
of Senior Indebtedness of the Company of the acceleration.
11.5 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment
of any Obligations with respect to the Notes at a time when the Trustee or
such Holder has actual knowledge that such payment is prohibited by Section
11.02 or Section 11.03 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over
and delivered, upon written request, to, the holders of Senior Indebtedness
of the Company as their interests may appear, or their Representatives
under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness of the Company may have been issued, as their respective
interests may appear, for application to the payment of all Obligations
with respect to Senior Indebtedness of the Company remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness of the Company.
If a distribution is made to the Trustee or any Holder that
because of this Article 11 should not have been made to it at a time when
the Trustee or such Holder has actual knowledge that such distribution
should not have been made to it, the Trustee or such Holder who receives
the distribution shall hold it in trust for the benefit of, and, upon
written request, pay it over to, the holders of Senior Indebtedness of the
Company as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness
of the Company may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Indebtedness of the Company remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness of the Company.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform only such obligations on the
part of the Trustee as are specifically set forth in this Article 11 and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to
any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to
which any holders of Senior Indebtedness of the Company shall be entitled
by virtue of this Article 11, except if such payment is made as a result of
negligent action, its own negligent failure to act or its own willful
conduct or gross negligence of the Trustee.
11.6 NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness of the Company as provided in this Article.
11.7 SUBROGATION.
After all Senior Indebtedness of the Company is paid in full and
until the Notes are paid in full, Holders shall, without duplication, be
subrogated to the rights of holders of Senior Indebtedness of the Company
to receive distributions applicable to Senior Indebtedness of the Company
to the extent that distributions otherwise payable to the Holders have been
applied to the payment of Senior Indebtedness of the Company. A
distribution made under this Article to holders of Senior Indebtedness of
the Company that otherwise would have been made to Holders is not, as
between the Company and Holders, a payment by the Company on Senior
Indebtedness of the Company.
11.8 RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders
of Senior Indebtedness of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes in
accordance with their terms;
(2) affect the relative rights of Holders and
creditors of the Company other than their rights in relation to
holders of Senior Indebtedness of the Company; or
(3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders of Senior Indebtedness
of the Company set forth herein to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal of
or interest on a Note on the due date, the failure is still a Default or
Event of Default.
11.9 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness of the Company to
enforce the subordination of the Indebtedness with respect to the Notes
shall be impaired by any act or failure to act by the Company or any Holder
or by failure of the Company or any Holder to comply with this Indenture.
11.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness of the Company, the distribution may be made
and the notice given to their Representative.
Upon any payment or distribution of assets referred to in this
Article 11, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 11.
11.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee shall
have received at its Corporate Trust Office at least three Business Days
prior to the date of such payment written notice of facts that would cause
the payment of any Obligations with respect to the Notes to violate this
Article. Only the Company, the holder of any Senior Indebtedness of the
Company, or any Representative of holders of Senior Indebtedness of the
Company may give the notice. Nothing in this Article 11 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it
were not Trustee.
11.12 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 11, and appoints the Trustee the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not
file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders (or their
Representative) of Senior Indebtedness of the Company are hereby authorized
to file an appropriate claim for and on behalf of the Holders of the Notes.
ARTICLE XII
MISCELLANEOUS
12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA <section>318(c), the imposed duties shall
control.
12.2 NOTICES.
Any notice or communication by the Company, the Guarantors or the
Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Company or any Guarantor:
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
Telecopier No.: (812) 421-9604
Attention: Martin R. Imbler
With a copy to:
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
Telecopier No.: (212) 408-2420
Attention: Michael Joseph O'Brien, Esq.
If to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Telecopier No.: (212) 852-1625
Attention: Corporate Trust Administration
The Company, the Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA <section> 313(c), to the
extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company or any Guarantor mails a notice or communication
to Holders, it shall mail a copy to the Trustee and each Agent at the same
time.
12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA <section> 312(b) with
other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA <section> 312(c).
12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantors
to the Trustee to take any action under this Indenture, the Company or the
Guarantors shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA paragraph 314(a)(4)) shall comply with
the provisions of TIA paragraph 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
12.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
12.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor
under the Notes, the Note Guarantees, this Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note and the Note Guarantees waives and releases
all such liability. The waiver and release are part of the consideration
for issuance of the Notes and the Note Guarantees.
12.8 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
12.9 CONSENT TO JURISDICTION
To the fullest extent permitted by applicable law, each of the
parties hereto hereby irrevocably submits to the jurisdiction of any New
York State court or Federal court sitting in the borough of Manhattan in
New York City in respect of any suit, action or proceeding arising out of
or relating to the provisions of this Indenture and irrevocably agrees that
all claims in respect of any such suit, action or proceeding may be heard
and determined in any such court. Each of the parties hereto waive, to the
fullest extent permitted by applicable law, any objection which it may now
or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court, and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
12.11 SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture and the Notes and the Note Guarantees, as the case may be, shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
12.12 SEVERABILITY.
In case any provision in this Indenture, or in the Notes or in
the Note Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
12.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent
the same agreement.
12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents. Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
1
SIGNATURES
Dated as of August 24, 1994 BERRY PLASTICS CORPORATION
By:______________________________________
Name:
Title:
BPC HOLDING CORPORATION
By:______________________________________
Name:
Title:
BERRY IOWA CORPORATION
By:______________________________________
Name:
Title:
BERRY STERLING CORPORATION
By:______________________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By:______________________________________
Name:
Title:
AEROCON, INC.
By:______________________________________
Name:
Title:
PACKERWARE CORPORATION
By:______________________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By:______________________________________
Name:
Title:
VENTURE PACKAGING, INC.
By:______________________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC.
By:_______________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC.
By:_______________________________________
Name:
Title:
NIM HOLDINGS LIMITED
By:_______________________________________
Name:
Title:
NORWICH INJECTION MOULDERS LIMITED
By:_______________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
By:_____________________________
Name:
Title:
Dated as of August 24, 1998
B-1
EXHIBIT A
(Face of Note)
CUSIP 085790AC7
12 1/4 % Series B Senior Subordinated Notes due 2004
No.1 $25,000,000
BERRY PLASTICS CORPORATION
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of Twenty-Five Million Dollars ($25,000,000)
on April 15, 2004.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated: August 24, 1998
BERRY PLASTICS CORPORATION
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
(SEAL)
This is one of the Notes
referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
B-2
(Back of Security)
12 1/4 % SERIES B SENIOR SUBORDINATED NOTE
DUE April 15, 2004
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 OR (c) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY AND THE GUARANTORS SO
REQUEST), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. INTEREST. Berry Plastics Corporation, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount of
this Note at the rate per annum of 12 1/4 % from August 24, 1998 until maturity
and shall pay the Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreements referred to below. The Company will pay
interest and Liquidated Damages semi-annually on October 15 and April 15 of
each year, or if any such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each an "Interest Payment
Date"). The first Interest Payment Date shall be October 15, 1998.
Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months. Interest shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Notes. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 1% per annum in excess of the
then applicable interest rate on the Notes; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at
the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the record date next
preceding the Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date. The Company will
pay principal, interest and Liquidated Damages in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. The Company, however, may pay principal, premium, if any, interest and
Liquidated Damages by check payable in such money. It may mail an interest
check to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice to any Holder. The Company or any Guarantor (as
defined below) may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of August 24, 1998 (the "Indenture") among the Company, the guarantors
named therein (the "Guarantors") and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code
<section><section> 77aaa-77bbbb) as in effect on the date of the Indenture.
The Notes are subject to all such terms, and Holders of the Notes are referred
to the Indenture and such Act for a statement of such terms. The terms of the
Indenture shall govern any inconsistencies between the Indenture and the Notes.
The Notes are unsecured general obligations of the Company limited to
$100,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION. On or after April 15, 1999, the Company
shall have the option to redeem the Notes, in whole or in part, at the
redemption prices (expressed as percentages of the principal amount) set forth
below, plus accrued and unpaid interest thereon, to the applicable redemption
date, if redeemed during the 12 month period beginning on April 15 of the years
indicated below:
YEAR PERCENTAGE
1999 106.125%
2000 104.083%
2001 102.042%
2002 and thereafter 100.000%
1. MANDATORY REDEMPTION. The Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
2. REDEMPTION OR REPURCHASE AT OPTION OF HOLDER. () If there is
a Change of Control, the Company shall be required to offer to purchase all
Notes at 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Holders of Notes that are subject to an offer to purchase will receive an offer
to purchase from the Company prior to any related purchase date, and may elect
to have such Notes purchased by completing the form entitled "Option of Holder
to Elect Purchase" appearing below.
(b) When the aggregate amount of Excess Proceeds from Asset Sales
exceeds $5 million, upon completion of the Asset Sale Offer required under the
1994 Indenture, the Company shall be required to offer to purchase the maximum
principal amount of Notes (including any Additional Notes) that may be
purchased out of the Excess Proceeds if any, remaining upon completion of the
Asset Sale Offer required under the 1994 Indenture at 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date fixed for
the closing of such offer. If the aggregate principal amount of Notes tendered
by Holders thereof exceeds the amount of Excess Proceeds, the Notes to be
redeemed shall be selected pursuant to the terms of Section 3.02 of the
Indenture (with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples thereof,
shall be purchased). To the extent that the aggregate amount of Notes
(including any Additional Notes) tendered by Holders thereof is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes. Holders of Notes which are the subject of an offer to purchase will
receive an offer to purchase from the Company prior to any related purchase
date, and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" appearing below.
3. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Notes to be redeemed at its registered address. Notes may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
4. SUBORDINATION. The Notes are subordinated to Senior
Indebtedness of the Company (whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed) and all Obligations
with respect thereto. To the extent provided in the Indenture, Senior
Indebtedness of the Company must be paid before the Notes may be paid. The
Company agrees, and each Holder by accepting a Note agrees, to the
subordination and authorizes the Trustee to give it effect.
5. NOTE GUARANTEES. Payment of principal of, premium, if any, and
interest (including interest on overdue principal, premium, if any, and
interest, if lawful) on the Notes is unconditionally guaranteed by the
Guarantors, on a senior subordinated basis, pursuant to Article 10 of the
Indenture.
6. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not exchange or register the transfer of any Note or portion
of a Note selected for redemption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed, during the period between a record date and the corresponding
Interest Payment Date.
7. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee
for registration of the transfer of this Note, the Trustee, any Agent, the
Company and the Guarantors may deem and treat the Person in whose name this
Note is registered as its absolute owner for the purpose of receiving payment
of principal of and interest on this Note and for all other purposes
whatsoever, whether or not this Note is overdue, and neither the Trustee, any
Agent, the Company nor any Guarantor shall be affected by notice to the
contrary. The registered holder of a Note shall be treated as its owner for
all purposes.
8. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including
Additional Notes, if any) (including consents obtained in connection with a
tender offer or exchange offer for Notes), and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Without the consent of any Holder, the Indenture or the Notes may be amended to
cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for
assumption of the Company's or any Guarantor's obligations to Holders in the
case of a merger or consolidation or to make any change that would provide any
additional rights or benefits to the Holders (including providing for
additional Note Guarantees pursuant to Section 4.13 of the Indenture) or that
does not adversely affect the rights of any Holder under the Indenture, to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in the Indenture or to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA.
9. DEFAULTS AND REMEDIES. Events of Default include: default by
the Company or the Guarantors in the payment when due of interest or Liquidated
Damages, if any, on the Notes (whether or not prohibited by the subordination
provisions of Article 10 or Article 11 of the Indenture, as the case may be)
and such default continues for a period of 30 days; default by the Company or
the Guarantors in the payment when due of principal of or premium, if any, on
the Notes (whether or not prohibited by the subordination provisions of Article
10 or Article 11 of the Indenture, as the case may be) when the same becomes
due and payable at maturity, upon redemption (including in connection with an
offer to purchase or otherwise); failure by the Company to comply with Sections
4.07, 4.09, 4.10 or 4.15 of the Indenture; failure by the Company or the
Guarantors to observe or perform any other covenant, representation, warranty
or other agreement in the Notes for 60 days after the notice to the Company by
the Trustee or the Holders of at least 25% in principal amount of the Notes
(including Additional Notes, if any) then outstanding; default occurs under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company, Holding or any of their respective Subsidiaries (or the payment of
which is guaranteed by the Company, Holding or any of their respective
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issuance Date, which default (a) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $2 million or more; a final judgment or final
judgments for the payment of money are entered by a court or courts of
competent jurisdiction against the Company, Holding or any of their respective
Subsidiaries and such judgment or judgments remain unpaid or undischarged for a
period (during which execution shall not be effectively stayed) of 60 days,
PROVIDED that the aggregate of all such undischarged judgments exceeds $2
million; except as permitted by the Indenture, any Note Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Guarantor (or its successors
or assigns), or any Person acting on behalf of such Guarantor (or its
successors or assigns), shall deny or disaffirm its obligations or shall fail
to comply with any obligations under its Note Guarantee; and certain events of
bankruptcy or insolvency with respect to the Company, any Guarantor or any of
their respective Subsidiaries. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes (including Additional Notes, if any) may declare all
the Notes to be due and payable immediately; except, that if any Indebtedness
is outstanding pursuant to the Credit Facility, upon a declaration of
acceleration, the principal and interest on the Notes shall be payable upon the
earlier of (1) the day which is five business days after notice of acceleration
is given to the Company and the lender under the Credit Facility or (2) the
date of acceleration of the Indebtedness under the Credit Facility and except
that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to the Company or any of its
Subsidiaries, all outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Company must furnish an annual
compliance certificate to the Trustee.
10. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, the Guarantors or their
respective Affiliates, and may otherwise deal with the Company the Guarantors
or their respective Affiliates, as if it were not Trustee.
11. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, the Note Guarantees, the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note and the Note Guarantees
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and the Note Guarantees.
12. AUTHENTICATION. Neither this Note nor any Note Guarantee shall
be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
13. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
14. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE
GUARANTEES.
B-3
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Request may be made to:
Berry Plastics Corporation
101 Oakley Street
P.O. Box 959
Evansville, Indiana 47710-0959
Attention: Chief Financial Officer
NOTE GUARANTEE
Each of the Guarantors and each Subsidiary of the Company which
in accordance with Section 4.13 of the Indenture is required to guarantee
the obligations of the Company under the Notes upon execution of a
counterpart of this Indenture, has jointly and severally unconditionally
guaranteed (i) the due and punctual payment of the principal of and
interest on the Notes, whether at the maturity or interest payment or
mandatory redemption date, by acceleration, call for redemption or
otherwise, and of interest on the overdue principal of and interest, if
any, on the Notes and all other obligations of the Company to the Holders
or the Trustee under the Indenture or the Notes and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether
at maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Note Guarantee and the Indenture are as expressly
set forth in Article 10 of the Indenture, and reference is hereby made to
such Indenture for the precise terms of this Note Guarantee. The terms of
Article 10 of the Indenture are incorporated herein by reference.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and
assigns until full and final payment of all of the Company's obligations
under the Notes and the Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of
any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof. This is a guarantee of payment and not a
guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Note Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
B-4
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
BPC HOLDING CORPORATION
By:_____________________________________
Name:
Title:
BERRY IOWA CORPORATION
By:_____________________________________
Name:
Title:
BERRY STERLING CORPORATION
By:_____________________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By:_____________________________________
Name:
Title:
AEROCON, INC.
By:_____________________________________
Name:
Title:
PACKERWARE CORPORATION
By:_____________________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By:_____________________________________
Name:
Title:
VENTURE PACKAGING, INC.
By:_____________________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC.
By:_____________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC.
By:_____________________________________
Name:
Title:
NIM HOLDINGS LIMITED
By:_____________________________________
Name:
Title:
NORWICH INJECTION MOULDERS LIMITED
By:_____________________________________
Name:
Title:
B-5
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax ID. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
_______________________________________________________________________________
Date:_______________________
Your Signature:__________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee.
B-6
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 (upon the occurrence of an Asset Sale) or 4.15
(upon the occurrence of a Change of Control) of the Indenture, check the
box below:
_____Section 4.10 _____Section 4.15
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.15 of the Indenture, state the amount you
elect to have purchased: $___________
Date:_____________________ Your Signature:_______________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:____________________
Signature Guarantee.
B-1
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: 12 1/4 Senior Subordinated Notes due 2004
Reference is hereby made to the Indenture, dated as of August 24,
1998 (the "INDENTURE"), among Berry Plastics Corporation, as issuer (the
"COMPANY"), the Guarantors named therein and United States Trust Company of
New York, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________________, (the "TRANSFEROR") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A
hereto, in the principal amount of $___________ in such Note[s] or
interests (the "TRANSFER"), to ___________________________ (the
"TRANSFEREE"), as further specified in Annex A hereto. In connection with
the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. _____ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account
is a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. _____ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor
and any Person acting on its behalf reasonably believed and believes that
the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on its
behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part of
a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the expiration
of the Restricted Period, the transfer is not being made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated
in the Private Placement Legend printed on the Regulation S Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.
3. _____ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S.
The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of
the United States, and accordingly the Transferor hereby further certifies
that (check one):
(a) _____ such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) _____ such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) _____ such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;
or
(d) _____ such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged in
any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Definitive Notes and in the Indenture and the Securities Act.
4. _____ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE
NOTE.
(a) _____ CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) _____ CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) _____ CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other
than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:____________________
B-2
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) _____ a beneficial interest in the:
(i) _____ 144A Global Note (CUSIP ), or
(ii) _____ Regulation S Global Note (CUSIP ), or
(iii) _____ IAI Global Note (CUSIP ); or
(b) _____ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) _____ a beneficial interest in the:
(i) _____ 144A Global Note (CUSIP ), or
(ii) _____ Regulation S Global Note (CUSIP ), or
(iii) _____ IAI Global Note (CUSIP ); or
(iv) _____ Unrestricted Global Note (CUSIP ); or
(b) _____ a Restricted Definitive Note; or
(c) _____ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-1
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: 12 1/4 % Senior Subordinated Notes due 2004
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of August 24,
1998 (the "INDENTURE"), among Berry Plastics Corporation, as issuer (the
"COMPANY"), the Guarantors named therein and United States Trust Company of
New York, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
__________________________, (the "OWNER") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies
that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) _____ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) _____ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv)
the Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(c) _____ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(d) _____ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) _____ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest
in the [CHECK ONE] _____ 144A Global Note, _____ Regulation S Global Note,
_____ IAI Global Note with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, and
in compliance with any applicable blue sky securities laws of any state of
the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture
and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:_______________________________________
Name:
Title:
Dated:____________________
B-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Re: 12 1/4 % Senior Subordinated Notes due 2004
Reference is hereby made to the Indenture, dated as of
August 24, 1998 (the "INDENTURE"), among Berry Plastics Corporation, as
issuer (the "COMPANY"), the Guarantors named therein and United States
Trust Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) _____ a beneficial interest in a Global Note, or
(b) _____ a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes
or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or
any interest therein except in compliance with, such restrictions and
conditions and the United States Securities Act of 1933, as amended (the
"SECURITIES ACT").
2. We understand that the offer and sale of the Notes have
not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell the Notes or any interest therein, we will do so only (A) to
the Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished
on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a
transaction meeting the requirements of clauses (A) through (E) of this
paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes
or beneficial interest therein, we will be required to furnish to you
and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a legend to
the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
____________________________________________
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated:____________________
B-3
EXHIBIT E
EXHIBIT E
[FORM OF NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO THE NOTE GUARANTEES]
Each of the Guarantors and each Subsidiary of the Company
which in accordance with Section 4.13 of the Indenture is required to
guarantee the obligations of the Company under the Notes upon execution
of a counterpart of this Indenture, has jointly and severally
unconditionally guaranteed (i) the due and punctual payment of the
principal of and interest on the Notes, whether at the maturity or
interest payment or mandatory redemption date, by acceleration, call for
redemption or otherwise, and of interest on the overdue principal of and
interest, if any, on the Notes and all other obligations of the Company
to the Holders or the Trustee under the Indenture or the Notes and (ii)
in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension
or renewal, whether at maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Note Guarantee and the Indenture are as
expressly set forth in Article 10 of the Indenture, and reference is
hereby made to such Indenture for the precise terms of this Note
Guarantee. The terms of Article 10 of the Indenture are incorporated
herein by reference.
This is a continuing guarantee and shall remain in full force
and effect and shall be binding upon each Guarantor and its successors
and assigns until full and final payment of all of the Company's
obligations under the Notes and the Indenture and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders
and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. This is a
guarantee of payment and not a guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which
this Note Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized
officers.
B-4