Exhibit 4.3
EXECUTION COPY
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BPC HOLDING CORPORATION
SERIES A AND SERIES B
$105,000,000
12 1/2% SENIOR SECURED NOTES DUE 2006
_________________
INDENTURE
Dated as of June 18, 1996
_________________
_________________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
_________________
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;10.03
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;10.03
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03;4.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03;10.04
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05,11.02
(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) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . 12
Section 1.03. Incorporation by Reference of Trust Indenture Act . 12
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . 13
ARTICLE 2
THE SENIOR NOTES
Section 2.01. Form and Dating . . . . . . . . . . . . . . . . . . 13
Section 2.02. Execution and Authentication . . . . . . . . . . . 14
Section 2.03. Registrar and Paying Agent . . . . . . . . . . . . 15
Section 2.04. Paying Agent to Hold Money in Trust . . . . . . . . 15
Section 2.05. Lists of Holders of the Notes . . . . . . . . . . . 16
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . 16
Section 2.07. Replacement Senior Notes . . . . . . . . . . . . . 21
Section 2.08. Outstanding Senior Notes . . . . . . . . . . . . . 22
Section 2.09. Treasury Senior Notes . . . . . . . . . . . . . . . 22
Section 2.10. Temporary Senior Notes . . . . . . . . . . . . . . 22
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . 23
Section 2.12. Record Date . . . . . . . . . . . . . . . . . . . . 23
Section 2.13. Defaulted Interest . . . . . . . . . . . . . . . . 23
Section 2.14. Book-Entry Provisions for Global Notes. . . . . . . 23
Section 2.15. Deposit of Monies . . . . . . . . . . . . . . . . . 24
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee . . . . . . . . . . . . . . . . 24
Section 3.02. Selection of Senior Notes to Be Redeemed . . . . . 24
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . 25
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . 26
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . 26
Section 3.06. Senior Notes Redeemed in Part . . . . . . . . . . . 26
Section 3.07. Optional Redemption . . . . . . . . . . . . . . . . 26
Section 3.08. Mandatory Redemption . . . . . . . . . . . . . . . 27
Section 3.09. Offer to Purchase by Application of Excess Proceeds 27
ARTICLE 4
COVENANTS
Section 4.01. Payment of Senior Notes . . . . . . . . . . . . . . 29
Section 4.02. Maintenance of Office or Agency . . . . . . . . . . 30
Section 4.03. Reports . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.04. Compliance Certificate . . . . . . . . . . . . . . 31
Section 4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . 31
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Section 4.06. Stay, Extension and Usury Laws . . . . . . . . . . 31
Section 4.07. Restricted Payments . . . . . . . . . . . . . . . . 32
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries . . . . . . . . . . . . . . . . . . . 34
Section 4.09. Incurrence of Indebtedness and Issuance of
Disqualified Stock . . . . . . . . . . . . . . . . 34
Section 4.10. Asset Sales . . . . . . . . . . . . . . . . . . . . 36
Section 4.11. Transactions with Affiliates . . . . . . . . . . . 37
Section 4.12. Liens . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.13. Corporate Existence . . . . . . . . . . . . . . . . 38
Section 4.14. Offer to Purchase Upon Change of Control . . . . . 38
Section 4.15. Limitation on Creation of New Parent Company . . . 39
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets . . . . . 39
Section 5.02. Successor Corporation Substituted . . . . . . . . . 40
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . 40
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . 42
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . 43
Section 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . 43
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . 43
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . 43
Section 6.07. Rights of Holders of Senior Notes to Receive
Payment . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.08. Collection Suit by Trustee . . . . . . . . . . . . 44
Section 6.09. Trustee May File Proofs of Claim . . . . . . . . . 44
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . 45
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . 45
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . 45
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . 47
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . 47
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . 47
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . 48
Section 7.06. Reports by Trustee to Holders of the Senior Notes . 48
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . 48
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . 49
Section 7.09. Successor Trustee by Merger, etc . . . . . . . . . 50
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . 50
Section 7.11. Preferential Collection of Claims Against The
Company . . . . . . . . . . . . . . . . . . . . . . 50
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . 51
Section 8.02. Legal Defeasance and Discharge . . . . . . . . . . 51
Section 8.03. Covenant Defeasance . . . . . . . . . . . . . . . . 51
Section 8.04. Conditions to Legal or Covenant Defeasance . . . . 52
Section 8.05. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions. . . . . . 53
Section 8.06. Repayment to The Company . . . . . . . . . . . . . 54
Section 8.07. Reinstatement . . . . . . . . . . . . . . . . . . . 54
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of the Senior Notes . . 54
Section 9.02. With Consent of Holders of Senior Notes . . . . . . 55
Section 9.03. Compliance with Trust Indenture Act . . . . . . . . 56
Section 9.04. Revocation and Effect of Consents . . . . . . . . . 57
Section 9.05. Notation on or Exchange of Senior Notes . . . . . . 57
Section 9.06. Trustee to Sign Amendments, etc . . . . . . . . . . 57
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Holding Pledge Agreement . . . . . . . . . . . . . 57
Section 10.02. Recording and Opinions . . . . . . . . . . . . . . 58
Section 10.03. Release of Collateral . . . . . . . . . . . . . . . 59
Section 10.04. Certificates of the Company . . . . . . . . . . . . 59
Section 10.05. Certificates of the Trustee . . . . . . . . . . . . 60
Section 10.06. Authorization of Actions to Be Taken by the Trustee
Under the Holding Pledge Agreement . . . . . . . . 60
Section 10.07. Authorization of Receipt of Funds by the Trustee
Under the Holding Pledge Agreement . . . . . . . . 60
Section 10.08. Termination of Security Interest. . . . . . . . . . 60
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls . . . . . . . . . . . 61
Section 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.03. Communication by Holders of Senior Notes with Other
Holders of Senior Notes . . . . . . . . . . . . . . 62
Section 11.04. Certificate and Opinion as to Conditions Precedent 62
Section 11.05. Statements Required in Certificate or Opinion . . . 62
Section 11.06. Rules by Trustee and Agents . . . . . . . . . . . . 63
Section 11.07. No Personal Liability of Directors, Officers,
Employees and Stockholders . . . . . . . . . . . . 63
Section 11.08. Governing Law . . . . . . . . . . . . . . . . . . . 63
Section 11.09. No Adverse Interpretation of Other Agreements . . . 63
iii
Section 11.10. Successors . . . . . . . . . . . . . . . . . . . . 63
Section 11.11. Severability . . . . . . . . . . . . . . . . . . . 63
Section 11.12. Counterpart Originals . . . . . . . . . . . . . . . 63
Section 11.13. Table of Contents, Headings, etc . . . . . . . . . 64
iv
INDENTURE dated as of June 18, 1996 between BPC HOLDING CORPORATION
(the "Company") and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the holders (the "Holders")
of the 12 1/2% Series A Senior Secured Notes due 2006 (the "Series A Senior
Notes") and the 12 1/2% Series B Senior Secured Notes due 2006 (the "Series B
Senior Notes" and, together with the Series A Senior Notes, the "Senior
Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, 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 secured by a
Lien encumbering any asset acquired by such specified Person.
"Acquisition" means any acquisition of a controlling interest in any
business or enterprise or any assets constituting any business or line of
business and all fees and expenses related thereto.
"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 that beneficial ownership
of 10% or more of the voting securities of a Person shall be deemed to be
control. Neither CVCA (as defined herein) nor its Affiliates will be
deemed an Affiliate of the Company or any of its Subsidiaries for purposes
of this definition solely by reason of such entities' direct or indirect
beneficial ownership of 30% or less of the voting Common Stock of the
Company or by reason of any employee of such entities being appointed to
the Board of Directors of the Company.
"Agent" means the Registrar or any Paying Agent.
"Asset Sale" means (i) the sale, lease, conveyance, transfer 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 the provisions of this Indenture described in
Sections 4.14 or 5.01), 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 (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.
"Berry" means Berry Plastics Corporation, a Delaware corporation.
"Berry Revolving Credit Facility" means the Berry Revolving Credit
Facility, dated as of April 21, 1994, by and among Berry and Fleet Capital
Corporation providing for up to $28.0 million of borrowings, including any
related notes, Guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced from time to time which includes
the addition, substitution or replacement of any or all lenders thereunder
under the same or any replacement agreement.
"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.
"CVCA" means Chase Venture Capital Associates , L.P.
"Capital Expenditure" means any expenditure to acquire or lease
property, plant or equipment useful, ancillary or related to the business
of Berry or any subsidiary thereof and expenditures to pay related fees and
expenses.
"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 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'
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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 Berry Revolving Credit Facility or with any domestic commercial bank
having capital and surplus in excess of $500 million, (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into
with any financial institution meeting the qualifications specified in
clause (iii) above and (v) commercial paper having the highest rating
obtainable from Moody's Investors Service, Inc. or Standard & Poor's
Corporation and in each case maturing within six months after the date of
acquisition.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Subsidiaries (or of Berry and its Subsidiaries) to any person or group
(as such term is used in Section 13(d)(3) of the Exchange Act) (other than
the Principals and their Related Parties (as defined below)), (ii) the
adoption of a plan relating to the liquidation or dissolution of the
Company or Berry, (iii) the acquisition by any person or group (as such
term is used in Section 13(d)(3) of the Exchange Act) (other than by the
Principals and their Related Parties) of a direct or indirect interest in
more than 35% of the voting power of the voting stock of the Company by way
of purchase, merger or consolidation or otherwise if (a) such person or
group (as defined above) (other than the Principals and their Related
Parties) owns, directly or indirectly, more of the voting power of the
voting stock of the Company than the Principals and their Related Parties
and (b) such acquisition occurs prior to the Initial Public Offering, (iv)
the acquisition by any person or group (as such term is used in Section
13(d)(3) of the Exchange Act) (other than by the Principals and their
Related Parties) of a direct or indirect interest in more than 50% of the
voting power of the voting stock of the Company by way of purchase, merger
or consolidation or otherwise if such acquisition occurs subsequent to the
Initial Public Offering, (v) such time as the Company ceases to be the
direct owner of all of the outstanding Equity Interests, including options,
warrants or similar rights, of Berry, and (vi) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Collateral Agent" means First Trust of New York, National
Association, as Collateral Agent under the Holding Pledge Agreement, or any
successor thereto appointed pursuant to such Agreement.
"Collateral Documents" means the Holding Pledge Agreement and all
related agreements, instruments, financing statements or other documents
that set forth or limit the Lien of the Trustee in the Pledged Collateral.
"Company" means BPC Holding Corporation, a Delaware corporation.
"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 Consoli-
dated 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
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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
finance, 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 actually paid in cash to the referent Person or a Wholly
Owned Subsidiary thereof, (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, (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 12 months after the acquisition of such business) subsequent to
the Issuance Date in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, (y) all investments as of such date
in unconsolidated Subsidiaries and in Persons that are not Subsidiaries
(except, in each case, Permitted Investments), and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such date, all
of the foregoing determined in accordance with GAAP.
"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 the Company who (i) was a member of
such Board of Directors on the Issuance Date or (ii)
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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 11.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"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 Senior Notes" means Senior Notes that are in the form of
the Senior Notes attached hereto as Exhibit A, that do not include the
information called for by footnote 1 thereof.
"Depository" means, with respect to the Senior Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.03 hereof as the Depository with respect to the Senior Notes, until a
successor shall have been appointed and become such pursuant to the
applicable provision of this Indenture, and, thereafter, "Depository" shall
mean or include such successor.
"Disqualified Stock" means any Capital Stock which, by its terms (or
by the terms of any Capital Stock to 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 December 31, 2006; provided, however, that any Capital Stock
that would otherwise be Disqualified Stock will not be Disqualified Stock
solely as a result of a maturity or redemption event that is conditioned
upon and subject to compliance with Section 4.07 hereof.
"Eligible Institution" means a commercial banking institution that
has combined capital and surplus of not less than $500.0 million or its
equivalent in foreign currency, whose debt (or the debt of whose holding
company) is rates "A" (or higher) according to S&P or "A2" (or higher) by
Moody's at the time of which any investment or rollover therein is made.
"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).
"Escrow Account" means the Escrow Account for the initial deposit of
approximately $35.5 million of the net proceeds from the sale of the Senior
Notes, under the Escrow and Disbursement Agreement.
"Escrow Agent" means First Trust of New York, National Association,
as Escrow Agent under the Escrow and Disbursement Agreement, or any
successor thereto appointed pursuant to such Agreement.
"Escrow and Disbursement Agreement" means the Pledge, Escrow and
Disbursement Agreement, dated as of the date of this Indenture, by and
among the Escrow Agent, the Trustee and the Company, governing the
disbursement of funds from the Escrow Account, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Series A Senior
Notes for Series B Senior Notes.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (including the Existing Senior Subordinated Notes) in
existence on the Issuance Date, until such amounts are repaid.
"Existing Senior Subordinated Notes" means the 12.25% Senior
Subordinated Notes due 2004 of Berry.
"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
Disqualified 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 Note" means a Senior Note that contains the paragraph
referred to in footnote 1 to the form of the Senior Note attached hereto as
Exhibit A.
"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.
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"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.
"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 Senior Note is registered.
"Holding Pledge Agreement" means the Holding Pledge Agreement, dated
as June 18, 1996 between the Company and the Trustee.
"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 Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, and also includes,
to the extent not otherwise included, the Guarantee of any Indebtedness of
such Person or any other Person.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Public Offering" means a public offering of the common stock
of Holding that first results in the common stock of Holding becoming
listed for trading on a Stock Exchange.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding
commission, travel and similar advances to officers, directors, consultants
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Issuance Date" means the closing date for the sale and original
issuance of the Senior 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 day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
"Leveraged Recapitalization" means any dividend or distribution to
any or all of the equity holders of a New Parent Company or any redemption
or repurchase of the Equity Interests of such equity holders that is funded
directly or indirectly by the incurrence of $10.0 million or more of
Indebtedness.
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"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.
"Marketable Securities" means (a) Government Securities having a
maturity date on or before the date on which the payments of interest on
the Senior Notes to which such Government Securities are pledged to secure
occur; (b) any certificate of deposit maturing not more than 270 days after
the date of acquisition issued by, or time deposit of, an Eligible
Institution, (c) commercial paper maturing not more than 270 days after the
date of acquisition of an issuer (other than an Affiliate of the Company)
with a rating, at the time as of which any investment therein is made, of
"A-1" (or higher) according to S&P or "P-1" (or higher) according to
Moody's or carrying an equivalent rating by a nationally recognized rating
agency if both of the two named rating agencies cease publishing ratings of
investments, (d) any bankers acceptances or money market deposit accounts
issued by an Eligible Institution and (e) any fund investing exclusively in
investment of the type described in clauses (a) through (d) above.
"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 (including,
without limitation, any cash received upon the sale or other disposition of
any non-cash consideration received in 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 established in accordance with GAAP.
"New Parent Company" means any corporation, partnership, limited
liability company or similar entity, all or substantially all of whose
assets consist of a direct or indirect interest in at least a majority of
the outstanding Capital Stock of the Company; provided, however that this
definition shall not include any corporation, partnership, limited
liability company, or similar entity, all or substantially all of whose
assets consist of a direct or indirect interest in at least a majority of
the outstanding Capital Stock of the Company immediately subsequent to the
consummation of the Transaction.
"New Senior Notes" means the 12 1/2% Senior Secured Notes due 2006 of
the Company, issued pursuant to the Registration Rights Agreement.
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"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum, dated June 12,
1996, relating to the Company's Senior Notes.
"Officer" means, with respect to any 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, delivered to the Trustee that
meets the requirements of Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 11.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Permitted Investments" means (a) any Investments in the Company or
in a Wholly Owned Subsidiary of the Company and that is engaged in the same
or a similar line of business as the Company and its Subsidiaries were
engaged in on the Issuance Date and (b) any Investments in Cash
Equivalents.
"Permitted Liens" means (i) Liens on the assets of any Subsidiary of
the Company to secure Indebtedness of any Subsidiary of the Company that
may be incurred pursuant to this Indenture; (ii) Liens in favor of the
Company; (iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any Subsidiary of
the Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company; (iv) Liens on property existing at the time of acquisition thereof
by the Company or any Subsidiary of the Company, provided that such Liens
were in existence prior to the contemplation of such acquisition; (v) Liens
to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business; (vi) Liens existing on the date of this
Indenture; (vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens incurred in the ordinary course of business of the Company or
any Subsidiary of the Company that (a) are not incurred in connection with
the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Subsidiary; and (ix) Liens securing Obligations under the Senior Notes and
this Indenture.
"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
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extended, refinanced, renewed, replaced, defeased or refunded; and (c) the
Refinancing Indebtedness is pari passu or subordinated in right of payment
to the Senior Notes on terms at least as favorable to the holders of Senior
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.
"Pledged Collateral" means all amounts held by the Collateral Agent
under the terms of the Holding Pledge Agreement.
"Preferred Stock" means any Equity Interest with preferential right
in the payment of dividends or liquidation or any Disqualified Stock.
"Principal" means each of Roberto Buaron and Akros Finanziaria,
S.p.A.
"Refinancing Indebtedness" means Indebtedness issued in exchange for,
or the proceeds of which are used to extend, refinance, renew, replace,
defease or refund Indebtedness referred to in the second paragraph or in
clauses (b), (c) or (f) of the third paragraph of Section 4.09.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 18, 1996, 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.
"Related Party" means with respect to a 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).
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"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 Berry Revolving Credit Facility as such agreement may be restated,
further amended, supplemented or otherwise modified or replaced from time
to time hereafter, together with any refunding or replacement of any such
Indebtedness.
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"Senior Indebtedness" means the Senior Bank Indebtedness.
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, (x) any Indebtedness of the
Company, (y) any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture.
"Senior Note Custodian" means the Trustee, as custodian for the
Depository with respect to the Senior Notes in global form, or any
successor entity thereto.
"Senior Notes" means the Company's 12 1/2% Series A Senior Secured Notes
due 2006 issued pursuant to this Indenture and 12 1/2% Series B Senior Secured
Notes due 2006 issued in exchange for 12 1/2% Series A Senior Secured Notes
due 2006.
"Stated Maturity" means with respect to any debt security, the date
specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable.
"Stock Exchange" means the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market.
"Strategic Equity Sale" means any sale of Equity Interests of the
Company that are not Disqualified Stock in a sale to one or more investors
provided that the net proceeds from such sale exceed $10 million.
"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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sec.Sec. 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under
the TIA.
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.06 hereof.
"Transaction" means the Transaction as defined in the Offering
Memorandum, dated June 12, 1996, relating to the offering of the Senior
Notes.
"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.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) 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 (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
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"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.
"Voting Stock" of any person means Capital Stock of such person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such person, whether at all times or only
so long as no senior class of securities has voting power by reason of any
contingency.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" . . . . . . . . 3.09
"Change of Control Offer" . . . . . 4.14
"Change of Control Payment" 4.14
"Change of Control Payment Date" . 4.14
"Covenant Defeasance" 8.03
"Event of Default" . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . 4.10
"incur" . . . . . . . . . . . . . . 4.09
"Legal Defeasance" 8.02
"Offer Amount" . . . . . . . . . . 3.09
"Offer Period" . . . . . . . . . . 3.09
"Paying Agent" . . . . . . . . . . 2.03
"Purchase Date" . . . . . . . . . . 3.09
"Registrar" . . . . . . . . . . . . 2.03
"Restricted Payments" . . . . . . . 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Notes;
"indenture security Holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Senior Notes means the Company and any successor
obligor upon the Senior Notes.
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All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(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 2
THE SENIOR NOTES
SECTION 2.01. FORM AND DATING.
The Senior Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Senior Notes
---------
may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Senior Note shall be dated the date of its
authentication. The Senior Notes initially shall be in denominations of
$1,000 and integral multiples thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Senior Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the text referred to in footnote 1
thereto). Senior Notes issued in the form of Definitive Senior Notes shall
be substantially in the form of Exhibit A attached hereto (but without
---------
including the text referred to in footnote 1 thereto). Each Global Note
shall represent such of the outstanding Senior Notes as shall be specified
therein and each shall provide that it shall represent the aggregate amount
of outstanding Senior Notes from time to time reflected by adjustments made
on the records of the Trustee and that the aggregate amount of outstanding
Senior Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions or the
issuance of any Senior Notes issued pursuant to the last paragraph of
Section 2.02. The amount of any increase or decrease in the amount of
outstanding Senior Notes represented by a Global Note shall be reflected by
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adjustments made in the records of the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Senior
Notes and may be in facsimile form.
If an Officer whose signature is on a Senior Note no longer holds
that office at the time a Senior Note is authenticated, the Senior Note
shall nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Senior Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Senior Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Senior Notes. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed
such amount except as provided in Section 2.07 hereof or in this Section.
The Trustee may (at the Company's expense) appoint an authenticating
agent acceptable to the Company to authenticate Senior Notes. An
authenticating agent may authenticate Senior 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 an Affiliate of the
Company.
The Trustee shall authenticate (i) Series A Senior Notes for original
issue in the aggregate principal amount not to exceed $105,000,000 plus
such additional Senior Notes that may be paid as interest or Liquidated
Damages as provided in the Senior Notes except as otherwise provided in
Section 2.02 and 2.07 hereof, and (ii) Series B Senior Notes from time to
time for issue in the aggregate amount not to exceed $105,000,000 plus such
additional Senior Notes that may be paid as interest or Liquidated Damages
as provided in the Senior Notes except as otherwise provided in Section
2.02 and 2.07 hereof, for issuance in exchange for a like principal amount
of Series A Senior Notes pursuant to an exchange offer registration
statement under the Securities Act or pursuant to an Exchange Offer (as
defined in the Registration Rights Agreement), in each case upon a written
order of the Company in the form of an Officers' Certificate. Series B
Senior Notes may have such distinctive series designation as, and such
changes in the form thereof, as are specified in the written order referred
to in the preceding sentence. The Officers' Certificate shall specify the
amount of Senior Notes to be authenticated and the date on which the Senior
Notes are to be authenticated, whether the Senior Notes are to be Series A
Senior Notes or Series B Senior Notes, whether the Senior Notes are to be
issued as Transfer Restricted Securities or such other information as the
Trustee may reasonably request. The aggregate principal amount of Senior
Notes outstanding at any time may not exceed $105,000,000 plus such
additional Senior Notes that may be paid as interest or Liquidated Damages
as provided in the Senior Notes, except as provided in Sections 2.02 and
2.07.
When the Company elects, as permitted by the terms of the Senior
Notes, to accrue and defer, rather than pay, all or any part of any
interest payment due on the Senior Notes, the Company shall add the
deferred amount of interest to the aggregate principal amount of the
outstanding securities and shall issue in lieu of payment of such interest
additional Senior Notes as provided in this Section 2.02. The
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Company shall give written notice to the Trustee of such election on or
before the record date for the applicable interest payment date which
notice shall instruct the Trustee to, upon receipt of such notice together
with (i) a copy, certified by the secretary or assistant secretary of the
Company, of the resolution adopted by the Board authorizing the issuance of
the appropriate principal amount of Senior Notes and (ii) an Officers'
Certificate setting forth the denominations and series of Senior Notes to
be issued and demonstrating the computation of the principal amount of
Senior Notes issuable to each Holder of outstanding Senior Notes, the
Trustee shall authenticate for original issue on such interest payment date
Senior Notes in an aggregate principal amount equal to the amount of
interest not to be paid in cash on such interest payment date. The
issuance of such Senior Notes shall constitute payment in full of the
interest in lieu of the cash payment of which such Senior Notes are issued.
Each issuance of Senior Notes in lieu of the payment of interest in cash on
the Senior Notes shall be made pro rata with respect to the outstanding
Senior Notes. Each Senior Note shall be subject to the same terms and
conditions.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Senior Notes
may be presented for registration of transfer or for exchange ("Registrar")
and (ii) an office or agency where Senior Notes may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the
Senior Notes and of their transfer and exchange. The Company may appoint
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or
any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Senior Note Custodian with respect to the
Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on
the Senior Notes, and shall notify the Trustee of any default by the
Company 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 Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders 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 Senior Notes.
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SECTION 2.05. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with TIA Sec. 312(a). If the
Trustee is not the Registrar, the Company 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 the Holders of Senior Notes and the Company shall otherwise
comply with TIA Sec. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Senior Notes. When
Definitive Senior Notes are presented by a Holder to the
Registrar with a request:
(x) to register the transfer of the Definitive Senior Notes; or
(y) to exchange such Definitive Senior Notes for an equal
principal amount of Definitive Senior Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met;
provided, however, that the Definitive Senior Notes presented or
surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar
duly executed by such Holder or by his attorney, duly
authorized in writing; and
(ii) in the case of a Definitive Senior Note that is a Transfer
Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification to that
effect from such Holder (in substantially the form of
Exhibit B hereto); or
---------
(B) if such Transfer Restricted Security is being transferred
to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A
under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of
Exhibit B hereto); or
---------
(C) if such Transfer Restricted Security is being transferred
in reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of
Exhibit B hereto) and an Opinion of Counsel from such Holder
---------
or the transferee reasonably acceptable
-16-
to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) Transfer of Definitive Senior Notes for a Beneficial Interest
in a Global Note. Definitive Senior Notes may not be exchanged
for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below. Upon receipt
by the Trustee of Definitive Senior Notes, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Definitive Senior Notes are Transfer Restricted
Securities, a certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the effect
---------
that such Definitive Senior Notes are being transferred by
such Holder to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Senior Notes are Transfer
Restricted Securities, written instructions from the Holder
thereof directing the Trustee to make, or to direct the
Senior Note Custodian to make, an endorsement on the Global
Note to reflect an increase in the aggregate principal
amount of the Senior Notes represented by the Global Note,
in which case the Trustee shall cancel such Definitive Senior
Notes in accordance with Section 2.11 hereof and cause, or direct
the Senior Note Custodian to cause, in accordance with the
standing instructions and procedures existing between the
Depository and the Senior Note Custodian, the aggregate principal
amount of Senior Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding,
the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee shall
authenticate a new Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of a Global Note. The transfer and
exchange of a Global Note or beneficial interests therein shall
be effected through the Depository, in accordance with this
Indenture and the procedures of the Depository therefor, which
shall include restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for
Definitive Senior Note.
(i) Any Person having a beneficial interest in a Global Note may
upon request exchange such beneficial interest for
Definitive Senior Notes. Upon receipt by the Trustee of
written instructions or such other form of instructions as
is customary for the Depository, from the Depository or its
nominee on behalf of any Person having a beneficial interest
in a Global Note, and, in the case of Transfer Restricted
Securities, the following additional information and
documents (all of which may be submitted by facsimile):
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(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of Exhibit B
---------
hereto);
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with Rule 144A
under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B hereto); or
---------
(C) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B hereto) and an Opinion of Counsel from
---------
the transferee or transferor reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act,
in which case the Trustee or the Senior Note Custodian, at the
direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the
Depository and the Senior Note Custodian, cause the aggregate
principal amount of a Global Note to be reduced accordingly
and, following such reduction, the Company shall execute and,
upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver
to the transferee Definitive Senior Notes in the appropriate
principal amount.
(ii) Definitive Senior Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.06(d)
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Definitive Senior Notes to the Persons in whose names such
Definitive Senior Notes are so registered.
(e) Restrictions on Transfer and Exchange of a Global Note.
Notwithstanding any other provision of this Indenture (other
than the provisions set forth in subsection (f) of this Section
2.06), a Global Note may not be transferred as a whole except
by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Senior Notes in Absence of
Depository. If at any time:
(i) the Depository for the Senior Notes notifies the Company
that the Depository is unwilling or unable to continue as
Depository for the Global Note and a successor Depository for
the Global Note is not appointed by the Company within 90 days
after delivery of such notice; or
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(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Senior Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section 2.02
hereof, authenticate and deliver, Definitive Senior Notes in an
aggregate principal amount equal to the principal amount of the
Global Note in exchange for such Global Note.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii) and
(iii), each Senior Note certificate evidencing a Global Note
and Definitive Senior Notes (and all Senior Notes issued in
exchange therefor or substitution thereof) shall bear legends
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, AS
AMENDED (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 BPC HOLDING CORPORATION (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 UNDER THE SECURITIES ACT, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
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 SO REQUESTS), (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."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act and upon receipt of an Officers' Certificate
certifying that the registration statement, if applicable, is
effective and directing the Trustee to authenticate and deliver
unlegended Senior Notes:
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(A) in the case of any Transfer Restricted Securities that
are Definitive Senior Notes, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Securities for Definitive Senior Notes that do not bear the
legend set forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Securities; and
(B) in the case of any Transfer Restricted Securities
represented by a Global Note, such Transfer Restricted
Securities shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to the
provisions of Section 2.06(c) hereof; provided, however,
that with respect to any request for an exchange of Transfer
Restricted Securities that are represented by a Global Note
for Definitive Senior Notes that do not bear the legend set
forth in (i) above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule
144 (such certification to be substantially in the form of
Exhibit B hereto).
---------
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate Series B Senior Notes in
exchange for Series A Senior Notes accepted for exchange in the
Exchange Offer, which Series B Senior Notes shall not bear the
legend set forth in (i) above, and the Company shall direct the
Registrar to rescind any restriction on the transfer of such
Senior Notes, in each case unless the Company determines that
the Holder of such Series A Senior Notes is either (A) a
broker-dealer, (B) a Person participating in the distribution
of the Series A Senior Notes or (C) a Person who is an
affiliate (as defined in Rule 144A) of the Company.
(h) Cancellation and/or Adjustment of a Global Note. At such time
as all beneficial interests in a Global Note have been
exchanged for Definitive Senior Notes, redeemed, repurchased or
cancelled, or a Series A Senior Note Global Note has been
exchanged for interests in a Series B Senior Note Global Note
such Global Note shall be returned to or retained and cancelled
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 Definitive Senior Notes,
redeemed, repurchased or cancelled, the principal amount of
Senior Notes represented by such Global Note shall be reduced
accordingly and an adjustment shall be made on the Trustee's
records to reflect such reduction.
(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
Definitive Senior Notes and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder 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
3.07, 4.10, 4.14 and 9.05 hereto).
-20-
(iii) All Definitive Senior Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Senior Notes
or Global Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Definitive Senior Notes or Global
Notes surrendered upon such registration of transfer or
exchange.
(iv) Neither the Company, the Registrar nor the Trustee shall be
required:
(A) to issue, to register the transfer of or to exchange
Senior Notes during a period beginning at the opening of
business 15 days before the day of any selection of Senior
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 Senior
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Senior Note being redeemed in
part; or
(C) to register the transfer of or to exchange a Senior Note
between a record date and the next succeeding interest
payment date.
(v) Prior to due presentment for the registration of a transfer
of any Senior Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Senior Note
is registered as the absolute owner of such Senior Note for
the purpose of receiving payment of principal of and
interest on such Senior Notes, and neither the Trustee, any
Agent nor the Company shall be affected by notice to the
contrary.
(vi) The Trustee shall authenticate Definitive Senior Notes and a
Global Note in accordance with the provisions of Section
2.02 hereof.
SECTION 2.07. REPLACEMENT SENIOR NOTES.
If any mutilated Senior 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 Senior Note, the Company shall issue and
the Trustee, upon the written order of the Company signed by two Officers
of the Company, shall authenticate a replacement Senior Note if the
Trustee's requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Senior Note is replaced. The Company and the Trustee
may charge for their expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Senior Notes duly issued
hereunder.
SECTION 2.08. OUTSTANDING SENIOR NOTES.
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The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding. Except as
set forth in Section 2.09 hereof, a Senior Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Senior Note.
If a Senior 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 Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Senior Notes payable on that date, then on and
after that date such Senior Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal amount
of Senior Notes have concurred in any direction, waiver or consent, Senior
Notes owned by the Company, or by any Affiliate thereof shall be considered
as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Senior Notes as to which a Responsible Officer of
the Trustee has received written notice are so owned shall be so
disregarded.
SECTION 2.10. TEMPORARY SENIOR NOTES.
Until Definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes upon a
written order of the Company signed by two Officers of the Company. The
written order shall specify the amount of temporary Senior Notes to be
authenticated and whether such Senior Notes shall bear the legend referred
to in Section 2.06(g)(i). Temporary Senior Notes shall be substantially in
the form of Definitive Senior Notes but may have variations that the
Company considers appropriate for temporary Senior Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall upon receipt of a written order
of the Company signed by two Officers authenticate definitive Senior Notes
in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Senior Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee and no one else shall cancel all Senior Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Senior Notes (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all cancelled Senior Notes shall be delivered to the
Company. The Company may
-22-
not issue new Senior Notes to replace Senior Notes that it has paid or that
have been delivered to the Trustee for cancellation other than in
connection with the Exchange Offer.
SECTION 2.12. RECORD DATE.
The record date for purposes of determining the identity of Holders
of the Senior 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 Sec. 316 (c).
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior Notes,
it 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 on a subsequent special record date, in each case at the
rate provided in the Senior Notes and in Section 4.01 hereof. The Company
shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Senior Note and the date of the proposed
payment. The Company shall fix or cause to be fixed each such special
record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.14. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Note initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Section 2.06(g).
Members of, or participants in, the Depository ("Agent Members")
shall have rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Note, and the Depository may be treated by the Company,
the Trustee and any Agent of the Company or the Trustee as the owner of the
Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any Agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as
between the Depository and its Agent Members the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Note may
be transferred or exchanged for Definitive Senior Notes in accordance with
the rules and procedures of the Depository and the provisions of Section
2.06. In addition, Definitive Senior Notes shall be transferred to all
beneficial owners in exchange for beneficial interests in the Global Note
if (i) the Depository notifies the Company that it is unwilling or unable
to continue as Depository for the Global Note and a successor Depository is
not appointed by the Company within 90 days of such notice or (ii) an Event
of Default has occurred and is continuing and the Registrar has received a
written request from the Depository to issue Definitive Senior Notes.
-23-
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Definitive Senior Notes
are to be issued) reflect on its books and records the date and a decrease
in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, which the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Senior Notes of like tenor
and amount.
SECTION 2.15. DEPOSIT OF MONIES.
Prior to 10:00 a.m. New York City time on each interest payment date,
maturity date, redemption date, Change of Control Payment Date and Purchase
Date, the Company shall have deposited with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such
interest payment date, maturity date, redemption date, Change of Control
Payment Date and Purchase Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such
interest payment date, maturity date, redemption date, Change of Control
Payment Date and Purchase Date, as the case may be.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Senior Notes pursuant to the optional
redemption provisions hereof, it shall furnish to the Trustee, at least 45
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 Senior Notes to be redeemed and (iv) the redemption
price.
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed at any time,
the Trustee shall select the Senior Notes to be redeemed among the Holders
of the Senior Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Senior Notes are listed
or, if the Senior 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 that the Senior Notes are listed on a national
securities exchange, the Company shall notify the Trustee, in writing, of
the redemption requirements, if any, of such national securities exchange.
In the event of partial redemption by lot, the particular Senior 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 Senior Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Senior Notes selected for redemption and, in the case of any Senior Note
selected for partial redemption, the principal amount thereof to be
redeemed. Senior Notes and portions of Senior Notes selected shall be in
amounts of $1,000 or whole multiples of $1,000; except that if all of the
Senior Notes of a Holder are to be redeemed, the entire outstanding amount
of Senior Notes held by such Holder, even if not a multiple of $1,000,
shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture
-24-
that apply to Senior Notes called for redemption also apply to portions of
Senior Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Senior Notes are to be redeemed at its registered address.
The notice shall identify the Senior Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of
the principal amount of such Senior Note to be redeemed and
that, after the redemption date upon surrender of such Senior
Note, a new Senior Note or Senior Notes in principal amount
equal to the unredeemed portion shall be issued upon surrender
of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior 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 and Liquidated Damages, if any, on Senior
Notes called for redemption cease to accrue on and after the
redemption date;
(g) the paragraph of the Senior Notes and/or Section of this
Indenture pursuant to which the Senior Notes called for
redemption are being redeemed; and
(h) the CUSIP number and 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 Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior 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.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest and Liquidated Damages, if
any, on all Senior Notes to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company upon its written request
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, accrued
interest on and Liquidated Damages, if any, all Senior Notes to be
redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and Liquidated
Damages, if any, shall cease to accrue on the Senior Notes or the portions
of Senior Notes called for redemption. If a Senior 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 and Liquidated Damages,
if any, shall be paid to the Person in whose name such Senior Note was
registered at the close of business on such record date. If any Senior
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, and
Liquidated Damages, if any, 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 Senior Notes and in
Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Senior Note
equal in principal amount to the unredeemed portion of the Senior Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Senior Notes prior to June
15, 1999. Thereafter, the Company shall have the option to redeem the
Senior Notes, in whole or in part, upon not less than 30 nor more than 60
days notice, 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 June 15 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . 110.00%
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . 110.00%
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . 108.00%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 105.33%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.67%
2004 and thereafter . . . . . . . . . . . . . . . . . . . 100.00%
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(b) Notwithstanding the foregoing, the Company, prior to June 15,
1999, may redeem up to a maximum of 33 1/3% of the aggregate principal amount
of the Senior Notes then outstanding at a redemption price of 112.5% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, to the date of redemption, if any, with the net proceeds of a
Strategic Equity Sale of the common stock of the Company; provided that at
least 66 2/3% in aggregate principal amount of the Senior Notes remain
outstanding immediately after the occurrence of such redemption; and
provided, further, that such redemption shall occur within 90 days of the
date of the closing of such Strategic Equity Sale.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under the Sections 3.09, 4.10 and 4.14 hereof,
the Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Senior Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Senior 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 Senior
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 Senior
Notes tendered in response to the Asset Sale Offer. Payment for any Senior
Notes so purchased shall be made in the same manner as interest payments
are made.
The Company shall comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-1, in
connection with any offer required to be made by the Company to repurchase
the Senior Notes as a result of an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with
provisions of this Section 3.09, the Company shall comply with the
applicable securities laws or regulations and shall not be deemed to have
breached its obligations hereunder by virtue thereof.
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
shall be paid to the Person in whose name a Senior Note is registered at
the close of business on such record date, and no additional interest shall
be payable to Holders who tender Senior 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 Senior 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:
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(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 Senior Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Senior 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 Senior Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the
Senior Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Senior Note completed, or
transfer by book-entry transfer, 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 Senior Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Senior Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by
the Company so that only Senior Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased,
unless all of the Senior Notes are being purchased); and
(i) that Holders whose Senior Notes were purchased only in part
shall be issued new Senior Notes equal in principal amount to
the unpurchased portion of the Senior Notes surrendered (or
transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Senior Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered,
all Senior Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Senior Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company, the Depository 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 Senior Notes tendered by such Holder and accepted
by the Company for purchase, and the Company shall promptly issue a new
Senior Note, and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Senior Note to such Holder, in a
principal amount equal to any unpurchased portion of the Senior Note
surrendered. Any Senior Note
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not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the
Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR NOTES.
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Senior Notes (including any additional interest
required to be paid pursuant to the provisions of the Registration Rights
Agreement) on the dates and in the manner provided in the Senior Notes
provided, however, that from December 15, 1999 to and including June 15,
2001, the Company may elect to pay all or a portion of an installment of
interest on the Senior Notes by delivering to the Trustee a written order
of the Company signed by an Officer of the Company requesting that the
Trustee deliver Notes (valued at 100% of the principal amount thereof) in
lieu of the cash interest payment due at such time. After June 15, 2001,
installments of interest are payable in cash only. 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 Subsidiary thereof, 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 or Liquidated Damages, 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
Senior 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 (without regard to
any applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Senior Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Senior 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 Senior 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.
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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 hereof.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Senior Notes are outstanding, the Company
shall furnish to the Trustee and Holders of Senior Notes
(i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms
10-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) all current reports
that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports. In addition,
whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all such information and
reports with the SEC for public availability (unless the SEC
will not accept such a filing) and make such information
available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA
Sec. 314(a).
(b) For so long as any Senior Notes remain outstanding, the Company
shall furnish to all Holders and to securities analysts and
prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act until such time as the Company has either
exchanged the Senior Notes for the New Senior Notes or until
such time as the holders thereof have disposed of such Senior
Notes pursuant to an effective registration statement filed by
the Company.
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SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company 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 during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed
and fulfilled its 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 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 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 Senior Notes is prohibited or if such event has
occurred, a description of the event and what action the
Company 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(a) 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) The Company shall, so long as any of the Senior 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 is taking or proposes to take with
respect thereto.
SECTION 4.05. 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 Senior Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company 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 the Company (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
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resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend or make any
other payment or 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);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Company or any Subsidiary (other than any such Equity
Interests owned by the Company or any Wholly Owned Subsidiary of the
Company); (iii) purchase, redeem or otherwise acquire or retire for value,
any Indebtedness of the Company which ranks subordinated in right to
payment to the Senior Notes other than Guarantees of the Existing Senior
Subordinated Notes; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments") unless, at the
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable four-
quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, (A) in the case of any Restricted
Payment other than as defined by clause (i) above, together
with the aggregate of all other Restricted Payments made by the
Company and its Subsidiaries after the Issuance Date (including
Restricted Payments permitted by the next succeeding paragraph)
or (B) in the case of any Restricted Payment defined by clause
(i) above, together with the aggregate of all other Restricted
Payments made by the Company and its Subsidiaries after the
Issuance Date (including Restricted Payments permitted by the
next succeeding paragraph) is less than the sum of: (x) 50% of
the sum of the Consolidated Net Income and Consolidated Step-Up
Depreciation and Amortization of the Company for the period
(taken as one accounting period) from the beginning of the
first fiscal quarter that begins after the Issuance Date to the
end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income
plus Consolidated Step-Up Depreciation and Amortization for
such period is a deficit, 100% of such deficit) plus (y) 100%
of the aggregate net cash proceeds received by the Company from
the issue or sale since the Issuance Date of Equity Interests
of the Company or of debt securities of the Company that have
been converted into such Equity Interests (other than (1)
Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Company, (2) Disqualified Stock or debt
securities that have been converted into Disqualified Stock and
(3) Equity Interests issued in connection with the
Transaction).
The foregoing provisions shall not prohibit:
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(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 Disqualified Stock);
(iii) the defeasance, redemption or repurchase of pari passu or
subordinated Indebtedness in a Permitted Refinancing;
(iv) the repurchase, redemption or other acquisition or
retirement for value of an Equity Interest of the Company
pursuant to any management equity subscription, shareholder
or stock option agreement in effect as of the Issuance Date;
provided, however, that (a) the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1.0 million in any fiscal year
and (b) no Default or Event of Default shall have occurred
and be continuing immediately after such transaction;
(v) Investments in joint venture or similar projects in a
business similar to that conducted by the Company and its
Subsidiaries on the Issuance Date in an amount not to exceed
$1.0 million;
(vi) any Restricted Payment to pay cash dividends on the New
Preferred Stock (as defined in the Offering Memorandum)
after the sixth anniversary of the Issuance Date excluding
any dividends due, not paid and cumulated prior to the sixth
anniversary of the Issuance Date, provided no Default or
Event of Default has occurred and is continuing; and
(vii) any Restricted Payment in connection with the consummation
of the Transaction.
The amount of all Restricted Payments (including, without limitation,
all Restricted Payments permitted to be made pursuant to this Section
4.07), other than cash, shall be the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) on the date of such Restricted Payment of the
asset(s) proposed to be transferred by the Company or such Subsidiary, as
the case may be, pursuant to such Restricted Payment. Not later than the
date of making any Restricted Payment (other than any such Restricted
Payment permitted by the immediately preceding clauses (i) through (vii)),
the Company shall deliver to the Trustee an Officers' Certificate stating
that such Restricted Payment is permitted and setting forth the basis upon
which the calculations required by this Section 4.07 were computed, which
calculations may be based upon the Company's latest available financial
statements.
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SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to:
(i) (a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock
or (2) with respect to any other interest or participation
in, or measured by, its profits, or (b) pay any indebtedness
owed to the Company or any of its Subsidiaries;
(ii) make loans or advances to the Company or any of its
Subsidiaries; or
(iii) 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 reason of:
(a) Existing Indebtedness as in effect on the Issuance Date
including the Existing Senior Subordinated Notes;
(b) Indebtedness of Berry, or any of Berry's subsidiaries,
permitted to be incurred under this Indenture;
(c) this Indenture and the Senior Notes;
(d) applicable law;
(e) 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;
(f) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent
with past practices; or
(g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so
acquired.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
STOCK.
(a) The Company shall not (i) 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 other than:
(A) the Senior Notes; (B) subordinated Guarantees of the
Existing Senior Subordinated Notes; or (C) unsecured Guarantees
of the Obligations under the Berry Revolving Credit Facility or
any other
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Indebtedness permitted to be incurred by any subsidiary of Holding
under this Indenture or (ii) issue shares of Disqualified Stock.
(b) The Company shall not permit any of its Subsidiaries to incur
any Indebtedness (including, without limitation, Acquired Debt)
and that the Company shall not permit any of its Subsidiaries
to issue, any shares of Disqualified Stock; provided, however,
that Subsidiaries of the Company may incur Indebtedness or
issue shares of Disqualified Stock if after giving effect to
such incurrence or issuance, the Fixed Charge Coverage Ratio
for the Company and its Subsidiaries, taken together on a
consolidated basis, for the most recently ended four full
fiscal quarters for which internal financial statements are
available as of the date on which such Indebtedness is incurred
or such Disqualified Stock is issued would have been at least
1.75 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 with the proceeds
therefrom), as if the additional Indebtedness is incurred, or
the Disqualified Stock had been issued, as the case may be, at
the beginning of such four-quarter period.
The provisions of (b) above and, with respect to (iii), (vii) and (viii)
below, the provisions of (a) and (b) above shall not apply to:
(i) revolving credit Indebtedness and letters of credit pursuant
to the Berry Revolving Credit Facility in an aggregate
principal amount not to exceed at any one time outstanding
the greater of (A) $28.0 million in principal amount (with
letters of credit being deemed to have a principal amount
equal to the maximum potential liability of Berry
thereunder), less the aggregate amount of all repayments
after the Issuance Date that permanently reduce the
commitment under the Berry Revolving Credit Facility and (B)
the Borrowing Base;
(ii) the Existing Indebtedness;
(iii) the Senior Notes, including any additional Senior Notes
issued in respect of the payment of interest on outstanding
Senior Notes or for the payment of Liquidated Damages;
(iv) the incurrence of Refinancing Indebtedness; provided,
however, that such Refinancing Indebtedness is a Permitted
Refinancing;
(v) 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;
(vi) incurrence of Indebtedness (including Acquired Debt) or
issuance of shares of Disqualified Stock of Berry or its
Subsidiaries, if after giving effect to such incurrence or
issuance, the Fixed Charge Coverage Ratio for Berry, taken
together on a consolidated basis with all of the
Subsidiaries of Berry, for the most recently ended four full
fiscal quarters for which internal financial statements are
available as of the date on which such 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
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forma application of the net proceeds therefrom and including
the earnings of any business acquired with the proceeds
therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock had been issued, as the
case may be, at the beginning of such four-quarter period;
provided that such Indebtedness is incurred or shares of
Disqualified Stock are issued, as the case may be, for the
purpose of financing Acquisitions or Capital Expenditures;
(vii) the incurrence of Indebtedness (in addition to Indebtedness
permitted by any other clause of this paragraph) in an
aggregate principal amount (or accreted value, as
applicable) at any time outstanding not to exceed $1.0
million; and
(viii) Indebtedness between or among Holding and any of its
Subsidiaries.
For purposes of this Indenture, the accretion or amortization of
original issue discount, or the issuance of additional Indebtedness in
respect of the payment of interest on Indebtedness or the payment of
Liquidated Damages shall not be deemed an "incurrence" of Indebtedness if a
corresponding amount is taken into account for purposes of determining
Consolidated Interest Expense at such time.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any Subsidiary to, directly
or indirectly, conduct an Asset Sale unless:
(i) 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 of the Company set forth in an Officer's 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 $1.0 million) of
the shares or assets sold or otherwise disposed of; and
(ii) at least 75% of such 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 Senior
Notes) 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 provision.
Within 180 days after any Asset Sale, the Company may apply the Net
Proceeds from such Asset Sale to either (i) permanently reduce Senior
Indebtedness of the Company or Indebtedness of Berry or of any Subsidiary
of Berry, or (ii) 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 or any Subsidiary thereof was
engaged in on the Issuance Date. Pending the final application of any such
Net Proceeds, the Company or any Subsidiary thereof 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
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"Excess Proceeds." If the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall make an offer to all holders of Senior Notes (an
"Asset Sale Offer") to purchase the maximum principal amount of Senior
Notes, that is an integral multiple of $1,000 (unless all of the Senior
Notes are being purchased), that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase, in accordance with the procedures set forth in this
Indenture. To the extent that the aggregate purchase price of Senior 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 Senior Notes surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior
Notes to be purchased in the manner described under Sections 3.02 hereof.
Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset to zero.
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 Senior Notes in connection with an Asset Sale.
Notwithstanding the foregoing, the Company shall not, and shall not
permit Berry to, directly or indirectly, sell, transfer, lease, convey,
dispose of or issue any Equity Interests of Berry except to the Company.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into any
contract, agreement, understanding, loan, advance or Guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless:
(a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those
that would have been obtained in a comparable transaction by
the Company or such Subsidiary with a Person who was not an
Affiliate; and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction involving
aggregate payments in excess of $2.0 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 such Affiliate
Transaction is approved by a majority of the Board of
Directors; and
(ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $5.0 million, an opinion as
to the fairness to the Company or such Subsidiary from a
financial point of view issued by an investment banking firm
of national standing;
provided, however, that the following shall not be deemed
Affiliate Transactions: (A) 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, (B) transactions between or among the Company
and/or its Subsidiaries, (C) Restricted Payments permitted by the
provisions of Section 4.07 hereof, (D) management
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fees payable to First Atlantic in an amount not to exceed $750,000
per annum plus out-of-pocket expenses, (E) a fee payable to First
Atlantic not to exceed $1,250,000 in respect of the Transaction,
(F) any transaction fee payable to First Atlantic pursuant to the
terms of the New Stockholders Agreement not to exceed $1,250,000
for any transaction consummated and out-of-pocket expenses in
respect of any such transaction (whether or not consummated) and
(G) a fee payable to Chase Securities Inc. not to exceed $500,000
in respect of the Transaction.
SECTION 4.12. LIENS.
The Company shall not directly or indirectly create, incur, assume or
suffer to exist any Lien on the Capital Stock of Berry other than liens
arising pursuant to the Holding Pledge Agreement. In addition, the Company
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except Permitted
Liens.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company 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 its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or
any such Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries; provided, that the
Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Senior
Notes.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company shall make an
offer (the "Change of Control Offer") to each Holder of Senior Notes to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Notes at a purchase price equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of repurchase (in either case, the
"Change of Control Payment"). Within ten days following any Change of
Control, the Company shall mail a notice to each Holder stating: (1) that
the Change of Control Offer is being made pursuant to this Section 4.14 and
that all Senior Notes tendered shall be accepted for payment; (2) the
purchase price and the purchase date, which shall be no later than 30
business days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Senior Note not tendered will continue to
accrete or accrue interest; (4) that, unless the Company defaults in the
payment of the Change of Control Payment, all Senior Notes accepted for
payment pursuant to the Change of Control Offer shall cease to accrete or
accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have any Senior Notes purchased pursuant to a Change of Control
Offer
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shall be required to surrender the Senior Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Senior 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; (6) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business
on the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Senior Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the
Senior Notes purchased; and (7) that Holders whose Senior Notes are being
purchased only in part shall be issued new Senior Notes equal in principal
amount to the unpurchased portion of the Senior Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof, unless all of such Holders Senior Notes are
being purchased. 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 Senior Notes as a result of a Change of
Control.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (1) accept for payment all Senior Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with
the Paying Agent an amount equal to the Change of Control Payment in
respect of all Senior Notes or portions thereof so tendered and (3) deliver
or cause to be delivered to the Trustee the Senior Notes so accepted
together with an Officers' Certificate stating the aggregate principal
amount of Senior Notes or portions thereof being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Senior Notes so
tendered payment in an amount equal to the purchase price for the Senior
Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered
by such Holder, if any; provided, that each such new Senior Note shall be
in a principal amount of $1,000 or an integral multiple thereof, unless all
of such Holders Senior Notes are being purchased. The Company shall
publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
SECTION 4.15. LIMITATION ON CREATION OF NEW PARENT COMPANY.
Holding shall not permit a New Parent Company to consummate a Leveraged
Recapitalization.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another
corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the
entity or Person
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formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Senior Notes and this Indenture and,
if applicable, the Collateral Documents pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction no Default or Event of Default exists;
and (iv) except in the case of a merger of the Company with or into a
Wholly Owned Subsidiary of the Company, the Company or the entity or 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 (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 in
Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company 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" shall refer instead to the successor corporation and not
to the Company), and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the principal of
and interest on the Senior Notes except in the case of a sale of all of the
Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on the
Senior Notes and such default continues for a period of 30
days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Notes 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 4.14 hereof;
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(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture
or the Senior Notes for 60 days after notice to the Company by
the Trustee or the Holders of at least 25% in principal amount
of the Senior Notes then outstanding;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Subsidiaries) whether
such Indebtedness or Guarantee now exists, or is created after
the date of this Indenture, which default (i) is caused by a
failure to pay principal of or premium, if any, or interest on
such Indebtedness prior to the expiration of any grace period
provided in such Indebtedness on the date of such default (a
"Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express final maturity date and, in
each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $2.0
million or more;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such
judgment or judgments remain unpaid or undischarged for a
period of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $2.0 million;
(g) breach or default by the Company in the performance of any
covenant set forth in the Holding Pledge Agreement which
continues for 60 days after notice to comply, or repudiation by
the Company of its obligations under the Holding Pledge
Agreement or the unenforceability of the Holding Pledge
Agreement against the Company for any reason;
(h) the Company or any of its Subsidiaries:
(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 or any of its Subsidiaries
in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Subsidiaries for all or substantially all of the property of
the Company or any of its Subsidiaries; or
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(iii) orders the liquidation of the Company or any of its
Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Specific rights and remedies of the Trustee under the Collateral
Documents shall include the right of the Trustee or the appropriate Person
under federal or state law to sell the Pledged Collateral and to apply the
net proceeds to the Indebtedness evidenced by the Senior Notes in
accordance with the terms of this Indenture and the Collateral Documents.
SECTION 6.02. ACCELERATION.
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 Senior
Notes may declare all the Senior Notes to be due and payable immediately;
upon any such declaration, the Senior Notes shall become due and payable
immediately. 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 or any of its Subsidiaries, all outstanding Senior Notes
shall be due and payable immediately without further action or notice.
Holders of the Senior Notes may not enforce this Indenture or the Senior
Notes except as provided in this Indenture. The Holders of a majority in
principal amount of the then outstanding Senior Notes by written notice to
the Trustee may on behalf of all of the Holders rescind any acceleration
and its consequences if the rescission would not conflict with any judgment
or decree and if 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.
In the case of any Event of Default occurring 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
Senior Notes pursuant to Section 3.07 hereof, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Senior Notes. If an Event of Default
occurs prior to June 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 Senior Notes prior to such
date, then, upon acceleration of the Senior Notes, an additional premium
shall also become and be immediately due and payable in an amount, for each
of the years beginning on June 15 of the years set forth below, as set
forth below (expressed as a percentage of the principal amount that would
otherwise be due but for the provisions of this sentence):
YEAR PERCENTAGE
---- ----------
1996 . . . . . . . . . . . . . . . . . . . . . . . . . . 118.00%
1997 . . . . . . . . . . . . . . . . . . . . . . . . . . 115.30%
1998 . . . . . . . . . . . . . . . . . . . . . . . . . . 112.70%
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . 110.00%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium,
Liquidated Damages if any, and interest on the Senior
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Notes or to enforce the performance of any provision of the Senior Notes,
this Indenture, the Escrow and Disbursement Agreement or the Holding Pledge
Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Senior Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Senior Notes by notice to the Trustee may on behalf of
the Holders of all of the Senior Notes waive an 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 Senior 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 Senior Notes
may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration in accordance with
Section 6.02 hereof). Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it including the exercise of any remedy
under the Collateral Documents. 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
Senior Notes or that may involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Senior Note may pursue a remedy with respect to this
Indenture or the Senior Notes only if:
(a) the Holder of a Senior 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 Senior Notes make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes offer
and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(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
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(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Senior Notes do not
give the Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the
rights of another Holder of a Senior Note or to obtain a preference or
priority over another Holder of a Senior Note.
SECTION 6.07. RIGHTS OF HOLDERS OF SENIOR NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Senior Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Senior Note, on or after
the respective due dates expressed in the Senior 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, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Senior Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Senior Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Senior
Notes), its creditors or its property and shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on 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 Senior 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.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on the
Senior 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 Senior Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
Third: 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 Senior Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Senior Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of
the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in
it by this Indenture and the Collateral Documents, and use the
same degree of care and skill in its exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Collateral
Documents and the Trustee need perform only those duties
that are specifically set forth in this Indenture and the
Collateral Documents and no others, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
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(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 and the
Collateral Documents. However, the Trustee shall examine
the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture but need
not verify the content of such certificates and opinions.
(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 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), (c) and (e) 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.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel. The Trustee may consult with counsel and
the 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.
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(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 might be
incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Collateral Documents
or the Senior Notes, it shall not be accountable for the Company's use of
the proceeds from the Senior Notes or any money paid to the Company or upon
the Company's direction under any provision of this Indenture or the
Collateral Documents, 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 Senior Notes or any other document in
connection with the sale of the Senior Notes or pursuant to this Indenture
other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of Senior 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 or Liquidated Damages, if any,
or interest on any Senior 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
Senior Notes.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SENIOR NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Senior Notes remain
outstanding, the Trustee shall mail to the Holders of the Senior Notes a
brief report dated as of such reporting date that complies with TIA
Sec. 313(a) (but if no event described in TIA Sec. 313(a) has occurred within
the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Sec. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA
Sec. 313(c).
A copy of each report at the time of its mailing to the Holders of
Senior Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Company has informed the Trustee in writing the
Senior Notes are listed in accordance with TIA Sec. 313(d). The Company shall
promptly notify the Trustee when the Senior Notes are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder.
To the extent permitted by law, the Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company 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 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, the
Collateral Documents or the Escrow and Disbursement Agreement against the
Company (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company or any Holder or any other person)
or liability in connection with the exercise or performance of any of its
powers or duties hereunder or under the Collateral Documents or the Escrow
and Disbursement Agreement 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 of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Senior Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Senior Notes. Such lien shall survive
the satisfaction and discharge of this Indenture (including, without
limitation, any termination under any Bankruptcy Law) or the resignation or
removal of the Trustee, as the case may be.
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
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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 Sec. 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of
Senior Notes of a majority in principal amount of the then outstanding
Senior Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
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 Senior Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of Senior Notes of at least 10% in principal amount of the
then outstanding Senior Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Senior Note
who has been a Holder of a Senior Note for at least six months, fails to
comply with Section 7.10, such Holder of a Senior 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 the duties of
the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to the Holders of the Senior Notes. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided that 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 obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America
or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities. The Trustee and its direct parent shall at
all times have a combined capital surplus of at least $100 million. If
such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for purposes of this Section 7.10 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sec. 310(a)(1), (2) and (5). The Trustee is subject to
TIA Sec. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Sec. 311(a), excluding any creditor
relationship listed in TIA Sec. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Sec. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding
Senior Notes upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from its obligations with respect to all
outstanding Senior Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Senior
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Senior Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute instruments in
form and substance satisfactory to the Company and the Trustee
acknowledging the same),
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except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of
outstanding Senior 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 or Liquidated Damages, if any, and
interest on such Senior Notes when such payments are due, (b) the Company's
obligations with respect to such Senior 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 obligations in connection therewith and
(d) the provisions of this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 4.14 and Article 10
hereof with respect to the outstanding Senior Notes on and after the date
the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Senior Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that
such Senior Notes shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Senior Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Senior 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 Sections 6.01(h) and 6.01(i) hereof
shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior 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 of the Senior Notes, cash
in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as shall be sufficient, in
the opinion of a nationally recognized firm of independent
public accounts, to pay the principal of, premium, if any, and
interest and Liquidated Damages on the outstanding Senior Notes
on the stated maturity or on the applicable redemption date, as
the case may be, and the Company must specify whether the
Senior Notes are being defeased to maturity or to a particular
redemption date;
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(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 date of this Indenture, there has been
a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders of the outstanding
Senior Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such Legal
Defeasance and shall be subject to federal income tax on the
same amounts, in the same manner and at the same time as would
have been the case if such 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 Senior
Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and
shall 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 shall be used to
defease the Senior Notes pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections
6.01(h) and 6.01(i) hereof are concerned, at any time in the
period ending on the 123rd day after the date of deposit;
(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 al applicable
preference periods have run, the trust funds shall not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Senior
Notes over the other creditors of the Company with the intent
of defeating, hindering, delaying or defrauding any other
creditors of the Company; 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 relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
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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 Senior Notes shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Senior Notes and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as Paying Agent), to the Holders of such Senior Notes of all
sums due and to become due thereon in respect of principal, premium or
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 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 Senior 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
written request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee
(which may be the opinion delivered under Section 8.04(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO THE 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 on any Senior Note and remaining
unclaimed for two years after such principal, and premium, if any, or
interest or Liquidated Damages, if any, has become due and payable shall be
paid to the Company on its written request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Senior Note
shall thereafter, as a secured 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 shall be repaid to the
Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations
under this Indenture and the Senior 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 makes any payment of principal
of, premium, if any, or interest or Liquidated Damages, if any, on any
Senior Note
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following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Senior Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF THE SENIOR NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture, the Senior Notes, the
Escrow and Disbursement Agreement or the Collateral Documents without the
consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or in
place of certificated Senior Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Senior Notes in the case of a merger or
consolidation pursuant to Article Five hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not
adversely affect the legal rights hereunder of any Holder of
the Senior Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to enter into additional or supplemental Collateral Documents.
Upon the written request of the Company accompanied by a resolution
of its Board of Directors authorizing the execution of any such amended or
supplemental Indenture or Collateral Documents, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company in the execution of any amended or supplemental
Indenture or Collateral Documents authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects
its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SENIOR NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture, the Collateral Documents
and the Senior Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Senior Notes then
outstanding (including consents obtained in connection with a purchase of
or a tender offer or exchange offer for the Senior 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,
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premium or Liquidated Damages, if any, or interest on the Senior Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the
Collateral Documents or the Senior Notes may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then
outstanding Senior Notes (including consents obtained in connection with a
purchase of or a tender offer or exchange offer for the Senior Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supple-
mental Indenture or Collateral Documents, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Senior 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 in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture or Collateral Documents
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may, but shall not be obligated to,
enter into such amended or supplemental Indenture or, the Collateral
Documents.
It shall not be necessary for the consent of the Holders of Senior
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 each Senior Note
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 Collateral Documents or
waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Senior Notes then outstanding
may waive compliance in a particular instance by the Company with any
provision of this Indenture or, the Collateral Documents or the Senior
Notes. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not (with respect to any Senior Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Senior Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Senior Note or alter or waive any of the provisions with
respect to the redemption of the Senior Notes (other than with
respect to Sections 3.09, 4.10 and 4.14);
(c) reduce the rate of or change the time for payment of interest
on any Senior 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
Senior Notes (except a rescission of acceleration of the Senior
Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Senior Notes and a
waiver of the payment default that resulted from such
acceleration);
(e) make any Senior Note payable in money other than that stated in
the Senior Notes;
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(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Senior
Notes to receive payments of principal of premium or Liquidated
Damages, if any, or interest on the Senior Notes;
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions;
(h) waive a redemption payment with respect to any Senior Note
(other than a payment required by Sections 3.09, 4.10 and 4.14
hereof);
(i) make any change in the provisions of this Article Nine; or
(j) release all or substantially all of the Pledged Collateral from
the lien of this Indenture or the Collateral Documents.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Collateral
Documents or the Senior Notes shall be set forth in a amended or
supplemental Indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Senior Note is a continuing consent by the Holder
and every subsequent Holder of a Senior Note or portion of a Senior Note
that evidences the same debt as the consenting Holder's Senior Note, even
if notation of the consent is not made on any Senior Note. However, any
such Holder or subsequent Holder of a Senior Note may revoke the consent as
to its Senior 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.
The Company may fix a record date for determining which Holders of
the Senior Notes must consent to such amendment, supplement or waiver. If
the Company fixes a record date, the record date shall be fixed at (i) the
later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders of Senior Notes furnished for the
Trustee prior to such solicitation pursuant to Section 2.05 or (ii) such
other date as the Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Senior Note thereafter authenticated. The
Company in exchange for all Senior Notes may issue and the Trustee shall
authenticate new Senior Notes that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Senior Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture or
Collateral Document 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 may not sign an
amendment or supplemental Indenture or Collateral Document until the Board
of Directors approves it. In signing such amendment, the Trustee shall be
entitled to receive indemnity satisfactory to it. In executing any amended
or supplemental indenture or Collateral Document, the Trustee shall be
entitled to receive and (subject to Section 7.01) shall be fully protected
in relying upon, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture or Collateral
Document is authorized or permitted by this Indenture.
ARTICLE 10
COLLATERAL AND SECURITY
SECTION 10.01. HOLDING PLEDGE AGREEMENT.
The due and punctual payment of the principal of and interest and
Liquidated Damages, if any, on the Senior Notes when and as the same shall
be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the
overdue principal of and interest and premium or Liquidated Damages (to the
extent permitted by law), if any, on the Senior Notes and performance of
all other obligations of the Company to the Holders of Senior Notes or the
Trustee under this Indenture and the Senior Notes, according to the terms
hereunder or thereunder, shall be secured as provided in the Holding Pledge
Agreement. Each Holder of Senior Notes, by its acceptance thereof,
consents and agrees to the terms of the Holding Pledge Agreement
(including, without limitation, the provisions providing for foreclosure
and release of Pledged Collateral) as the same may be in effect or may be
amended from time to time in accordance with its terms and authorizes and
directs the Collateral Agent to enter into the Holding Pledge Agreement and
to perform its obligations and exercise its rights thereunder in accordance
therewith. The Company shall deliver to the Trustee copies of all
documents delivered to the Collateral Agent pursuant to the Holding Pledge
Agreement, and shall do or cause to be done all such acts and things as may
be necessary or proper, or as may be required by the provisions of the
Holding Pledge Agreement, to assure and confirm to the Trustee and the
Collateral Agent the security interest in the Pledged Collateral
contemplated hereby, by the Holding Pledge Agreement or any part thereof,
as from time to time constituted, so as to render the same available for
the security and benefit of this Indenture and of the Senior Notes secured
hereby, according to the intent and purposes herein expressed. The Company
shall take, or shall cause its Subsidiaries to take, any and all actions
reasonably required to cause the Holding Pledge Agreement to create and
maintain, as security for the Obligations of the Company hereunder, a valid
and enforceable perfected first priority Lien in and on all the Pledged
Collateral, in favor of the Collateral Agent for the benefit of the Holders
of Senior Notes, superior to and prior to the rights of all third Persons
and subject to no other Liens than Permitted Liens.
SECTION 10.02. RECORDING AND OPINIONS.
(a) The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either
(i) stating that in the opinion of such counsel all action has been taken
with respect to the recording, registering and filing of this Indenture,
financing statements or other
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instruments necessary to make effective the Lien intended to be created by
the Holding Pledge Agreement, and reciting with respect to the security
interests in the Pledged Collateral, the details of such action, or (ii)
stating that, in the opinion of such counsel, no such action is necessary
to make such Lien effective.
(b) The Company shall furnish to the Collateral Agent and the Trustee
on May 15 in each year beginning with May 15, 1997, an Opinion of Counsel,
dated as of such date, either (i) (A) stating that, in the opinion of such
counsel, action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refiling of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of
the Holding Pledge Agreement and reciting with respect to the security
interests in the Pledged Collateral the details of such action or referring
to prior Opinions of Counsel in which such details are given, (B) stating
that, based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements and continuation statements have been
executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the
Holders of Senior Notes and the Collateral Agent and the Trustee hereunder
and under the Holding Pledge Agreement with respect to the security
interests in the Pledged Collateral, or (ii) stating that, in the opinion
of such counsel, no such action is necessary to maintain such Lien and
assignment.
(c) The Company shall otherwise comply with the provisions of TIA
Sec.314(b).
SECTION 10.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this Section 10.03,
Pledged Collateral may be released from the Lien and security interest
created by the Holding Pledge Agreement at any time or from time to time in
accordance with the provisions of the Holding Pledge Agreement or as
provided hereby. In addition, upon the request of the Company pursuant to
an Officers' Certificate certifying that all conditions precedent hereunder
have been met and stating whether or not such release is in connection with
an Asset Sale and (at the sole cost and expense of the Company) the
Collateral Agent shall release (i) Pledged Collateral that is sold,
conveyed or disposed of in compliance with the provisions of this
Indenture; provided, that if such sale, conveyance or disposition
constitutes an Asset Sale, the Company shall apply the Net Proceeds in
accordance with Section 4.10 hereof. Upon receipt of such Officers'
Certificate the Collateral Agent shall execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of any Pledged Collateral permitted to be released
pursuant to this Indenture or the Holding Pledge Agreement.
(b) No Pledged Collateral shall be released from the Lien and security
interest created by the Holding Pledge Agreement pursuant to the provisions
of the Holding Pledge Agreement unless there shall have been delivered to
the Collateral Agent the certificate required by this Section 10.03.
(c) At any time when a Default or Event of Default shall have occurred
and be continuing and the maturity of the Senior Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall
have delivered a notice of acceleration to the Collateral Agent, no release
of Pledged Collateral pursuant to the provisions of the Holding Pledge
Agreement shall be effective as against the Holders of Senior Notes.
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(d) The release of any Pledged Collateral from the terms of this
Indenture and the Holding Pledge Agreement shall not be deemed to impair
the security under this Indenture in contravention of the provisions hereof
if and to the extent the Pledged Collateral is released pursuant to the
terms of the Holding Pledge Agreement. To the extent applicable, the
Company shall cause TIA Sec. 313(c), relating to reports, and TIA Sec. 314(b),
relating to the release of property or securities from the Lien and
security interest of the Holding Pledge Agreement and relating to the
substitution therefor of any property or securities to be subjected to the
Lien and security interest of the Holding Pledge Agreement, to be complied
with. The Trustee shall comply (to the extent required) with TIA
Sec. 313(b)(1) and 313(d). Any certificate or opinion required by TIA
Sec. 314(d) may be made by an Officer of the Company except in cases where TIA
Sec. 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Trustee and the
Collateral Agent in the exercise of reasonable care.
SECTION 10.04. CERTIFICATES OF THE COMPANY.
(a) The Company shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Pledged Collateral pursuant to the
Holding Pledge Agreement or the Escrow and Disbursement Agreement, (i) all
documents required by TIA Sec.314(c) and (d) and (ii) an Opinion of Counsel,
which may be rendered by internal counsel to the Company, to the effect
that such accompanying documents constitute all documents required by TIA
Sec.314(d). The Trustee may, to the extent permitted by Sections 7.01 and
7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
SECTION 10.05. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wishes to release Pledged Collateral in
accordance with the Holding Pledge Agreement and has delivered the
certificates and documents required by the Holding Pledge Agreement and
Sections 10.03 and 10.04 hereof as well as all documentation required by
TIA Sec.314(d) in connection with such release and the Trustee shall direct
the Collateral Agent to effectuate such release.
SECTION 10.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER
THE HOLDING PLEDGE AGREEMENT.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee
may, in its sole discretion and without the consent of the Holders of
Senior Notes, direct, on behalf of the Holders of Senior Notes, the
Collateral Agent to, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Holding Pledge Agreement and
(b) collect and receive any and all amounts payable in respect of the
Obligations of the Company hereunder. The Trustee shall have power to
institute and maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Pledged Collateral by any acts that may be
unlawful or in violation of the Holding Pledge Agreement or this Indenture,
and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of
Senior Notes in the Pledged Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that
may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of
Senior Notes or of the Trustee).
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SECTION 10.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
HOLDING PLEDGE AGREEMENT.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Senior Notes distributed under the Holding Pledge Agreement, and
to make further distributions of such funds to the Holders of Senior Notes
according to the provisions of this Indenture.
SECTION 10.08. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all Obligations of the Company under this
Indenture and the Senior Notes, or upon Legal Defeasance, the Trustee
shall, at the written request of the Company set forth in an Officers'
Certificate, deliver a certificate to the Collateral Agent stating that
such Obligations have been paid in full, and instruct the Collateral Agent
to release the Liens pursuant to this Indenture and the Holding Pledge
Agreement.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Sec.318(c), the imposed duties shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company 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), tele-
copier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
BPC Holding Corporation
101 Oakley Street
Evansville, Indiana 47706
Telecopy: (812) 421-9604
Attention: Martin R. Imbler
With a copy to:
O'Sullivan, Graev & Karabell, LLP
30 Rockefeller Plaza
41st Floor
New York, New York 10112
Attention: Lawrence G. Graev, Esq.
If to the Trustee:
First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, New York 10005
Telecopier No.: (212) 809-5459
Attention: Corporate Trust Administration
The Company 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 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.
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Any notice or communication to a Holder shall be mailed by first
class mail 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 Sec. 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 mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF SENIOR NOTES WITH OTHER HOLDERS
OF SENIOR NOTES.
Holders may communicate pursuant to TIA Sec. 312(b) with other Holders
with respect to their rights under this Indenture or the Senior Notes. The
Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Sec. 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company 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 11.05 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 11.05 hereof) stating that, in the opinion
of such counsel, all such conditions precedent and covenants
have been satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Sec. 314(a)(4)) shall comply with the
provisions of TIA Sec. 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
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(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Senior Notes, this Indenture or the
Collateral Documents (including the Holding Pledge Agreement) and Escrow
and Disbursement Agreement or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Senior Notes
by accepting a Senior Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Senior
Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a wavier is
against public policy.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE COLLATERAL DOCUMENTS AND THE SENIOR NOTES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Senior Notes
shall bind its successors and assigns. All agreements of the Trustee in
this Indenture shall bind its successors and assigns.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Senior Notes shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
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SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of June 18, 1996 BPC HOLDING CORPORATION
ISSUER
By: /s/ Martin R. Imbler
--------------------------------
Name: Martin R. Imbler
Title: President
Attest:
/s/ James M. Kratochvil (SEAL)
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Dated as of June 18, 1996 FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
TRUSTEE
By: /s/ Alfia Monastra
--------------------------------
Name: Alfia Monastra
Title: Assistant Vice President
Attest:
/s/ Geovanni Barris
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