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AGRILINK FOODS, INC.,
AS ISSUER
THE GUARANTORS NAMED HEREIN
AND
IBJ SCHRODER BANK & TRUST COMPANY
AS TRUSTEE
$200,000,000
11-7/8% SENIOR SUBORDINATED NOTES DUE 2008
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INDENTURE
Dated as of November 18, 1998
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.08; 7.10; 12.02
(b)(1)................................................... 7.10
(c)...................................................... N.A.
311 (a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312 (a)...................................................... 2.05
(b)...................................................... 12.03
(c)...................................................... 12.03
313 (a)...................................................... 7.06
(b)(1)................................................... N.A.
(b)(2)................................................... 7.06
(c)...................................................... 7.06; 12.02
(d)...................................................... 7.06
314 (a)...................................................... 4.02; 4.03; 12.02
(b)...................................................... N.A.
(c)(1)................................................... 12.04
(c)(2)................................................... 12.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 12.05
(f)...................................................... N.A.
315 (a)...................................................... 7.01(b)
(b)...................................................... 7.05; 12.02
(c)...................................................... 7.01(a)
(d)...................................................... 7.01(c)
(e)...................................................... 6.11
316 (a) (last sentence)...................................... 2.12
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2)................................................... N.A.
(b)...................................................... 6.07
(c)...................................................... 9.04(b)
317 (a)(1)................................................... 6.08
(a)(2)................................................... 6.09
(b)...................................................... 2.04
318 (a)...................................................... 12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..........................................................1
SECTION 1.02. Other Definitions...................................................24
SECTION 1.03. Incorporation by Reference of TIA...................................25
SECTION 1.04. Rules of Construction...............................................25
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.....................................................26
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount............27
SECTION 2.03. Registrar and Paying Agent..........................................28
SECTION 2.04. Paying Agent to Hold Money in Trust.................................28
SECTION 2.05. Holder Lists........................................................29
SECTION 2.06. Transfer and Exchange...............................................29
SECTION 2.07. Restrictive Legends.................................................30
SECTION 2.08. Book-Entry Provisions for Global Notes..............................32
SECTION 2.09. Special Transfer Provisions.........................................34
SECTION 2.10. Replacement Notes...................................................37
SECTION 2.11. Outstanding Notes...................................................38
SECTION 2.12. Treasury Notes......................................................38
SECTION 2.13. Temporary Notes.....................................................38
SECTION 2.14. Cancellation........................................................39
SECTION 2.15. Defaulted Interest..................................................39
SECTION 2.16. Record Date.........................................................39
SECTION 2.17. CUSIP and CINS Numbers..............................................39
ARTICLE 3
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.01. Notices to Trustee..................................................40
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased......................40
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SECTION 3.03. Notice of Redemption................................................41
SECTION 3.04. Effect of Notice of Redemption......................................42
SECTION 3.05. Deposit of Redemption Price.........................................42
SECTION 3.06. Notes Redeemed in Part..............................................42
SECTION 3.07. Redemption Provisions...............................................42
SECTION 3.08. Mandatory Offers....................................................43
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes....................................................45
SECTION 4.02. Reports.............................................................46
SECTION 4.03. Compliance Certificate..............................................46
SECTION 4.04. Stay, Extension and Usury Laws......................................47
SECTION 4.05. Limitation on Restricted Payments...................................47
SECTION 4.06. Corporate Existence.................................................49
SECTION 4.07. Limitations on Additional Indebtedness..............................50
SECTION 4.08. Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries..........................................50
SECTION 4.09. Limitations on Layering Debt........................................50
SECTION 4.10. Limitations on Transactions with Affiliates.........................51
SECTION 4.11. Limitations on Liens................................................52
SECTION 4.12. Taxes...............................................................52
SECTION 4.13. Limitations on Restrictions on Distributions from
Restricted Subsidiaries..........................................52
SECTION 4.14. Maintenance of Offices or Agencies..................................53
SECTION 4.15. Change of Control...................................................53
SECTION 4.16. Limitations on Asset Sales..........................................54
SECTION 4.17. Additional Note Guarantees..........................................57
SECTION 4.18. Payments Pursuant to the Pro-Fac Marketing Agreement;
Reinvestments by Pro-Fac; Borrowings by Pro-Fac..................57
SECTION 4.19. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law..............................................58
ARTICLE 5
SUCCESSORS
SECTION 5.01. Limitations on Mergers and Certain Other Transactions...............59
SECTION 5.02. Successor Corporation Substituted...................................60
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...................................................61
SECTION 6.02. Acceleration........................................................62
SECTION 6.03. Other Remedies......................................................63
SECTION 6.04. Waiver of Past Defaults.............................................63
SECTION 6.05. Control by Majority of Holders......................................63
SECTION 6.06. Limitations on Suits by Holders.....................................63
SECTION 6.07. Rights of Holders to Receive Payment................................64
SECTION 6.08. Collection Suit by Trustee..........................................64
SECTION 6.09. Trustee May File Proofs of Claim....................................64
SECTION 6.10. Priorities..........................................................64
SECTION 6.11. Undertaking for Costs...............................................65
SECTION 6.12. Willful Default.....................................................65
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee...................................................66
SECTION 7.02. Rights of Trustee...................................................67
SECTION 7.03. Individual Rights of Trustee........................................67
SECTION 7.04. Trustee's Disclaimer................................................67
SECTION 7.05. Notice to Holders of Defaults and Events of Default.................68
SECTION 7.06. Reports by Trustee to Holders.......................................68
SECTION 7.07. Compensation and Indemnity..........................................68
SECTION 7.08. Replacement of Trustee..............................................69
SECTION 7.09. Successor Trustee by Merger, Etc....................................70
SECTION 7.10. Eligibility; Disqualification.......................................70
SECTION 7.11. Preferential Collection of Claims Against Company...................70
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.........................71
SECTION 8.02. Conditions to Defeasance............................................71
SECTION 8.03. Application of Trust Money..........................................73
SECTION 8.04. Repayment to Company................................................73
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SECTION 8.05. Indemnity for Government Securities.................................74
SECTION 8.06. Reinstatement.......................................................74
ARTICLE 9
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted without Consent of
Holders..........................................................74
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders.............75
SECTION 9.03. Compliance with TIA.................................................76
SECTION 9.04. Revocation and Effect of Consents...................................76
SECTION 9.05. Notation or Exchange of Notes.......................................77
SECTION 9.06. Trustee Protected...................................................77
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate............................................77
SECTION 10.02. Liquidation; Dissolution; Bankruptcy................................77
SECTION 10.03. No Payment on Notes in Certain Circumstances........................78
SECTION 10.04. Acceleration of Notes...............................................79
SECTION 10.05. When Distributions Must Be Paid Over................................79
SECTION 10.06. Notice..............................................................80
SECTION 10.07. Subrogation.........................................................80
SECTION 10.08. Relative Rights.....................................................81
SECTION 10.09. The Company, Guarantors and Holders May Not Impair
Subordination....................................................81
SECTION 10.10. Distribution or Notice to Representative............................82
SECTION 10.11. Rights of Trustee and Paying Agent..................................83
SECTION 10.12. Trust Moneys Not Subordinated; Permitted Junior
Securities.......................................................83
SECTION 10.13. Authorization to Effect Subordination...............................83
ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee...........................................................84
SECTION 11.02. Trustee to Include Paying Agent.....................................85
SECTION 11.03. Subordination of Guarantee..........................................85
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SECTION 11.04. Limits of Guarantee.................................................85
SECTION 11.05. Severability........................................................85
SECTION 11.06. Subrogation.........................................................85
SECTION 11.07. Execution of Guarantee...........................................85
SECTION 11.08. Release of Guarantor................................................86
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls........................................86
SECTION 12.02. Notices.............................................................87
SECTION 12.03. Communication by Holders with Other Holders.........................87
SECTION 12.04. Certificate and Opinion As to Conditions Precedent..................88
SECTION 12.05. Statements Required in Certificate or Opinion.......................88
SECTION 12.06. Rules by Trustee and Agents.........................................88
SECTION 12.07. Legal Holidays......................................................88
SECTION 12.08. No Recourse Against Others..........................................88
SECTION 12.09. Counterparts........................................................88
SECTION 12.10. Initial Appointments, Compliance Certificates.......................89
SECTION 12.11. Governing Law.......................................................89
SECTION 12.12. No Adverse Interpretation of Other Agreements.......................89
SECTION 12.13. Successors..........................................................89
SECTION 12.14. Severability........................................................89
SECTION 12.15. Third Party Beneficiaries...........................................89
SECTION 12.16. Table of Contents, Headings, Etc....................................89
EXHIBITS
Exhibit A. Form of Initial Note...............................................A-1
Exhibit B. Form of Exchange Note..............................................B-1
Exhibit C. Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors.......................C-1
Exhibit D. Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S..............................D-1
Exhibit E. Form of Note Guarantee.............................................E-1
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INDENTURE, dated as of November 18, 1998, is by and among
Agrilink Foods, Inc., a New York corporation, as issuer (as further defined
below, the "COMPANY"), the Guarantors (as defined below) and IBJ Schroder Bank &
Trust Company, a New York banking corporation, as trustee (the "TRUSTEE").
The Company, the Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the holders
of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"ACQUIRED INDEBTEDNESS" means (a) with respect to any Person that
becomes a Restricted Subsidiary after the date of this Indenture, Indebtedness
of such Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (b) with
respect to the Company or any of its Restricted Subsidiaries, any Indebtedness
of a Person (other than the Company or a Restricted Subsidiary) existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary,
or Indebtedness assumed by the Company or any of its Restricted Subsidiaries in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition. For purposes of the
Pro-Fac Merger only, Indebtedness of Pro-Fac existing at the time the Company is
merged with and into Pro-Fac, but not incurred in connection with, or in
contemplation of, the Pro-Fac Merger, shall be deemed incurred for purposes of
this Indenture at the time of the consummation of the Pro-Fac Merger, but the
incurrence thereof shall not require compliance with Section 4.07(a).
"ACQUISITION" means the acquisition by the Company of Dean Foods
Vegetable Company and the transfer by the Company of its aseptic business, in
each case on September 23, 1998 pursuant to and in accordance with terms of the
Stock Purchase Agreement dated as of July 24, 1998 by and between Dean Foods
Company and the Company and the Asset Transfer Agreement dated as of July 24,
1998 by and between Dean Foods Company and the Company.
"ADDITIONAL INTEREST" has the meaning set forth in the
Registration Rights Agreement.
"AFFILIATE" of any specified Person means (i) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person and (ii) with respect to Pro-Fac and
the Company, any member of Pro-Fac that is
a director of Pro-Fac or that has beneficial ownership of more than 1% of the
outstanding voting securities of Pro-Fac. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and under "common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided, however, that beneficial ownership of 10% or more of the voting
securities of a Person shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent, or co-registrar
appointed pursuant to Section 2.03.
"ASSET SALE" means any sale, issuance, conveyance, transfer,
lease, assignment or other disposition to any Person other than the Company or
any of its Restricted Subsidiaries (including, without limitation, by means of a
Sale and Leaseback Transaction or a merger or consolidation) (collectively, for
purposes of this definition, a "transfer"), directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of any
Restricted Subsidiary or (b) any other properties or assets of the Company or
any of its Restricted Subsidiaries other than transfers of cash, Cash
Equivalents, accounts receivable, inventory or other properties or assets in the
ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include any of the following: (i) any transfer of
properties or assets (including Capital Stock) that is governed by, and made in
accordance with, the provisions of Article 5; (ii) any transfer of properties or
assets to an Unrestricted Subsidiary, if permitted under Section 4.05; (iii)
sales of damaged, worn-out or obsolete equipment or assets that, in the
Company's reasonable judgment, are either no longer used or useful in the
business of the Company or its Subsidiaries, provided that the proceeds thereof
are used to purchase replacement or similar assets for use in the business of
the Company and its Subsidiaries; and (iv) any transfer that, but for this
clause (iv), would be an Asset Sale, if after giving effect to such transfer,
the aggregate Fair Market Value of the properties or assets transferred in such
transaction or any such series of related transactions does not exceed $500,000.
"ATTRIBUTABLE INDEBTEDNESS," when used with respect to any Sale
and Leaseback Transaction, means, as at the time of determination, the present
value (discounted at a rate equivalent to the Company's then-current weighted
average cost of funds for borrowed money as at the time of determination,
compounded on a semi-annual basis) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in any such Sale
and Leaseback Transaction.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as
amended.
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"BANKRUPTCY LAW" means the Bankruptcy Code or any similar federal
or state law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board
of Directors of such Person, or any authorized committee of the Board of
Directors of such Person.
"BOARD RESOLUTION" means a duly adopted resolution of the Board
of Directors of the Company or any Guarantor.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York are authorized by law,
regulation or executive order to remain closed.
"CAPITAL STOCK" of any Person means (i) any and all shares or
other equity interests (including without limitation common stock, preferred
stock and partnership interests) in such Person and (ii) all rights to purchase,
warrants or options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) such shares or other
interests in such Person.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) marketable obligations with a
maturity of 360 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) U.S. dollar denominated time deposits and
certificates of deposit of any financial institution (a) that is a member of the
Federal Reserve System having combined capital and surplus and undivided profits
of not less than $500 million or (b) whose short-term commercial paper rating or
that of its parent company is at least A-1 or the equivalent thereof from S&P or
P-1 or the equivalent thereof from Moody's (any such bank, an "APPROVED BANK"),
in each case with a maturity of 360 days or less from the date of acquisition;
(iii) commercial paper issued by any Approved Bank or by the parent company of
any Approved Bank and commercial paper issued by, or guaranteed by, any
industrial or financial company with a short-term commercial paper rating of at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing no more than
360 days from the date of acquisition; (iv) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (i) above entered into with any commercial bank meeting the
specifications of clause (ii)(a)
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above; and (v) investments in money market or other mutual funds substantially
all of whose assets comprise securities of the types described in clauses (i)
through (iv) above.
"CEDEL" means Cedel Bank, Societe anonyme.
"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 Pro-Fac's or the Company's assets to any Person or
group (as such term is used in Section 13(d)(3) of the Exchange Act); provided,
however, that the Pro-Fac Merger shall not constitute a Change of Control under
this clause (i); (ii) the consummation of any transaction the result of which is
that any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than Pro-Fac in the case of clause (y)) owns, directly or
indirectly, (A) more than 50% of the voting power of the voting stock of either
(x) Pro-Fac or (y) the Company or (B) more than 30% of the voting power of the
voting stock of the Company if Pro-Fac owns, directly or indirectly, a lesser
percentage than such Person or group of the voting power of the voting stock of
the Company; (iii) the first date on which any Person or group (as defined
above) shall have elected, or caused to be elected, a sufficient number of its
or their nominees to the Board of Directors of Pro-Fac or the Company such that
the nominees so elected (regardless of when elected) shall collectively
constitute a majority of the Board of Directors of Pro-Fac or the Company, as
the case may be; or (iv) (A) prior to consummation of the Pro-Fac Merger, for a
period of 120 consecutive days, the number of Disinterested Directors on the
Board of Directors of the Company being less than the greater of (x) two and (y)
the number of directors of the Company who are Pro-Fac Directors and (B) on and
after consummation of the Pro-Fac Merger, for a period of 120 consecutive days,
the number of Disinterested Directors on the Board of Directors of Pro-Fac, as
successor corporation to the Company, being less than two. For purposes of this
definition, any transfer of an equity interest of an entity that was formed for
the purpose of acquiring voting stock of Pro-Fac or the Company shall be deemed
to be a transfer of such portion of the voting stock owned by such entity as
corresponds to the portion of the equity of such entity that has been so
transferred.
"COMMERCIAL MARKET VALUE" means Commercial Market Value
determined in accordance with the Pro-Fac Marketing Agreement (as in effect on
the Issue Date and whether or not in effect at the time of determination).
"COMPANY" means Agrilink Foods, Inc., a New York corporation,
unless and until a subsequent successor replaces it in accordance with Article 5
and thereafter means such successor.
"CONSOLIDATED AMORTIZATION EXPENSE" for any period means the
amortization expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income),
determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED DEPRECIATION EXPENSE" for any period means the
depreciation expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income),
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" for any period means the
provision for taxes based on income and profits of the Company and its
Restricted Subsidiaries to the extent such income or profits were included in
computing Consolidated Net Income for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, with respect to any
determination date, the ratio of (a) EBITDA for the four full fiscal quarters
immediately preceding the determination date (for any determination, the
"REFERENCE PERIOD"), to (b) Consolidated Interest Expense for such Reference
Period. In making such computations, (i) EBITDA and Consolidated Interest
Expense shall be calculated on a pro forma basis assuming that (A) the
Indebtedness to be incurred or the Disqualified Capital Stock to be issued (and
all other Indebtedness incurred or Disqualified Capital Stock issued after the
first day of such Reference Period referred to in Section 4.07, through and
including the date of determination), and (if applicable) the application of the
net proceeds therefrom (and from any other such Indebtedness or Disqualified
Capital Stock), including the refinancing of other Indebtedness, had been
incurred on the first day of such Reference Period and, in the case of Acquired
Indebtedness, on the assumption that the related transaction (whether by means
of purchase, merger or otherwise) also had occurred on such date with EBIDTA
(including any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act) attributable to the
assets which are the subject of such acquisition being included in such pro
forma calculation and (B) any acquisition or disposition by the Company or any
Restricted Subsidiary of any properties or assets outside the ordinary course of
business or any repayment of any principal amount of any Indebtedness of the
Company or any Restricted Subsidiary prior to the stated maturity thereof, in
either case since the first day of such Reference Period through and including
the date of determination, had been consummated on such first day of such
Reference Period; (ii) the Consolidated Interest Expense attributable to
interest on any Indebtedness required to be computed on a pro forma basis in
accordance with Section 4.07 and (A) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest, shall be computed
by applying, at the option of the Company, either the fixed or floating rate;
(iii) the Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility required to be computed on a pro
forma basis in accordance with Section 4.07 shall be computed based upon the
average daily balance of such Indebtedness during the applicable period,
provided that such average daily balance shall be reduced by the amount of any
repayment of Indebtedness under a revolving credit facility during the
applicable period, which repayment permanently
-5-
reduced the commitments or amounts available to be reborrowed under such
facility; (iv) notwithstanding the foregoing clauses (ii) and (iii), interest on
Indebtedness determined on a floating rate basis, to the extent such interest is
covered by agreements relating to Hedging Obligations, shall be deemed to have
accrued at the rate per annum resulting after giving effect to the operation of
such agreements; and (v) if after the first day of the applicable Reference
Period and before the date of determination, the Company has permanently retired
any Indebtedness out of the net proceeds of the issuance and sale of shares of
Capital Stock (other than Disqualified Capital Stock) of the Company within 60
days of such issuance and sale, Consolidated Interest Expense shall be
calculated on a pro forma basis as if such Indebtedness had been retired on the
first day of such period.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum,
without duplication, of the total interest expense of the Company and its
consolidated Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP and including, without limitation (i)
imputed interest on Capitalized Lease Obligations and Attributable Indebtedness;
(ii) commissions, discounts and other fees and charges owed with respect to
letters of credit securing financial obligations and bankers' acceptance
financing; (iii) the net costs associated with Hedging Obligations; (iv)
amortization of other financing fees and expenses; (v) the interest portion of
any deferred payment obligations; (vi) amortization of debt discount or premium,
if any; (vii) all other non-cash interest expense; (viii) capitalized interest;
(ix) all cash dividend payments (and non-cash dividend payments in the case of a
Restricted Subsidiary) on any series of preferred stock of the Company or any
Restricted Subsidiary; (x) all interest payable with respect to discontinued
operations; and (xi) all interest on any Indebtedness of any other Person
guaranteed by the Company or any Restricted Subsidiary to the extent paid by the
Company or such Restricted Subsidiary.
"CONSOLIDATED NET INCOME" for any period means the net income (or
loss) of the Company and its consolidated Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided that
there shall be excluded from such net income (to the extent otherwise included
therein), without duplication (i) the net income (or loss) of any Person (other
than a Restricted Subsidiary) in which any Person other than the Company and its
Restricted Subsidiaries has an ownership interest, except to the extent that any
such income has actually been received by the Company and its Restricted
Subsidiaries (unless and to the extent such Restricted Subsidiary is subject to
clause (iii) below) in the form of cash dividends or distributions during such
period; (ii) except to the extent includable in the consolidated net income of
the Company pursuant to the foregoing clause (i), the net income (or loss) of
any Person that accrued prior to the date that (a) such Person becomes a
Restricted Subsidiary or is merged into or consolidated with the Company or any
Restricted Subsidiary or (b) the assets of such Person are acquired by the
Company or any Restricted Subsidiary; (iii) the net income of any Restricted
Subsidiary during such period to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary
-6-
of that income (a) is not permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period or (b)
would be subject to any taxes payable on such dividend or distribution; (iv) any
gain (or, only in the case of a determination of Consolidated Net Income as used
in EBITDA, any loss), together with any related provisions for taxes on any such
gain (or, if applicable, the tax effects of such loss), realized during such
period by the Company or any Restricted Subsidiary upon (a) the acquisition of
any securities, or the extinguishment of any Indebtedness, of the Company or any
Restricted Subsidiary or (b) any Asset Sale by the Company or any of its
Restricted Subsidiaries; provided, however, that there shall be excluded from
Consolidated Net Income for all purposes any loss realized by the Company or any
Restricted Subsidiary upon the acquisition of any securities, or the
extinguishment of any Indebtedness, of the Company or any Restricted Subsidiary,
or the write-off of deferred financing costs, in connection with the Acquisition
and all refinancings of Indebtedness consummated in connection therewith; (v)
any extraordinary gain (or, only in the case of a determination of Consolidated
Net Income as used in EBITDA, any extraordinary loss), together with any related
provision for taxes on any such extraordinary gain (or, if applicable, the tax
effects of such extraordinary loss), realized by the Company or any Restricted
Subsidiary during such period; (vi) any restructuring charges recognized during
such period in an amount not to exceed $7.0 million in the aggregate after the
Issue Date so long as such restructuring charges are recognized within 24 months
after the Issue Date; and (vii) in the case of a successor to the Company by
consolidation, merger or transfer of its assets, any earnings of the successor
prior to such merger, consolidation or transfer of assets; and provided,
further, that any gain in excess of return of capital referred to in clauses
(iv) and (v) above that relates to a Restricted Investment and which is received
in cash by the Company or a Restricted Subsidiary during such period shall be
included in the Consolidated Net Income of the Company.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of
any date, the consolidated equity of the common stockholders of such Person and
its consolidated Subsidiaries as determined in accordance with GAAP as of such
date, less 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 twelve months after the acquisition of such business) subsequent to the
Issue Date in the book value of any asset owned by such Person or a Subsidiary
of such Person.
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee
specified in Section 12.02 or such other address as the Trustee may give notice
to the Company.
"COVERAGE RATIO INCURRENCE CONDITION" would be met at any
specified time only if the Company (or its Successor, as the case may be) would
be able to incur $1.00 of additional Indebtedness at such specified time
pursuant to the Consolidated Interest Coverage Ratio test set forth in Section
4.07.
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"CUSTODIAN" means any custodian, receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"DEFAULT" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"DEPOSITORY" means, with respect to the Notes issuable or issued
in whole or in part in global form, The Depository Trust Company, until a
successor shall have been appointed and becomes such Depository, and,
thereafter, "Depository" shall mean or include such successor.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness under the
New Credit Facility (whether incurred pursuant to the definition of Permitted
Indebtedness or pursuant to the provisions of Section 4.07) and (ii) any other
Indebtedness constituting Senior Indebtedness that at the date of determination
has an aggregate principal amount outstanding of at least $25.0 million and that
is specifically designated by the Company, in the instrument creating or
evidencing such Senior Indebtedness or in an Officers' Certificate delivered to
the Trustee, as "Designated Senior Indebtedness."
"DISINTERESTED DIRECTORS" means (i) prior to the consummation of
the Pro-Fac Merger, directors of the Company who are not employees, shareholders
(at the time of becoming directors) or otherwise Affiliates (other than by
reason of being a director of the Company) of either Pro-Fac or the Company and
(ii) on and after consummation of the Pro-Fac Merger, directors of Pro-Fac, as
the successor corporation to the Company, who are not employees, shareholders
(at the time of becoming directors) or otherwise Affiliates (other than by
reason of being a director of Pro-Fac) of Pro-Fac.
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of a Person
or any of its Subsidiaries that, by its terms, by the terms of any agreement
related thereto or by the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of any event or the passage
of time would be, required to be redeemed or repurchased by such Person or any
of its Subsidiaries, whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, in whole or in part, on or prior to the final maturity date of the
Notes; provided, however, that in the case of Pro-Fac only, Disqualified Capital
Stock shall not include (x) retained earnings allocated to members of Pro-Fac,
(y) common stock of Pro-Fac issued to members of Pro-Fac and (z) Class B
Preferred Stock (having substantially the same terms as in effect on the Issue
Date) of Pro-Fac issued to officers, directors or employees of Pro-Fac.
"DOLLARS" and "$" means lawful money of the United States of
America.
-8-
"EBITDA" for any period means without duplication, the sum of the
amounts for such period of (i) Consolidated Net Income plus (ii) in each case to
the extent deducted in determining Consolidated Net Income for such period (and
without duplication), (A) Consolidated Income Tax Expense, (B) Consolidated
Amortization Expense (but only to the extent not included in Consolidated
Interest Expense), (C) Consolidated Depreciation Expense, (D) Consolidated
Interest Expense, (E) all other non-cash items reducing the Consolidated Net
Income (excluding any such non-cash charge that results in an accrual of a
reserve for cash charges in any future period) for such period, in each case
determined on a consolidated basis in accordance with GAAP, plus (iii) in the
case of the Company, for any period that includes a fiscal quarter beginning on
or prior to consummation of the Pro-Fac Merger, the Pro-Fac share of earnings
(loss) as determined in accordance with the Pro-Fac Marketing Agreement for such
period through the date of consummation of the Pro-Fac Merger, minus (iv) the
aggregate amount of all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income for such period.
"EQUITY OFFERING" means an underwritten primary offering of
Capital Stock (other than Disqualified Capital Stock) of Pro-Fac (to the extent
that the net cash proceeds thereof are contributed to the equity capital of the
Company (other than as Disqualified Capital Stock)) or the Company pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act or pursuant to a private placement pursuant to an available
exemption from registration under the Securities Act to the extent, in the case
of such private placement, such Capital Stock is not sold to Pro-Fac, the
Company, any Subsidiary or any Affiliate (without giving effect to clause (ii)
in the definition thereof) thereof.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the 11-7/8% Senior Subordinated Notes due
2008 of the Company to be offered to Holders in exchange for Notes pursuant to
the Exchange Offer or otherwise pursuant to a Registration of Notes (the terms
of which are identical to the Initial Notes except that the Exchange Notes shall
be registered under the Securities Act and shall not contain the Private
Placement Legend or provide for the payment of Additional Interest) and
unconditionally guaranteed on a joint and several basis by the Guarantors.
"EXCHANGE OFFER" means the offer that may be made by the Company
and the Guarantors pursuant to the Registration Rights Agreement to exchange
Exchange Notes for the Notes.
"EXISTING INDEBTEDNESS" means all of the Indebtedness of the
Company and its Restricted Subsidiaries that is outstanding on the Issue Date
and any additional promissory
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notes issued in accordance with the terms of the Subordinated Promissory Note as
in effect on the Issue Date.
"FAIR MARKET VALUE" of any asset or item means the fair market
value of such asset or item as determined in good faith by the Board of
Directors and evidenced by a Board Resolution.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company that is
not incorporated or organized in the United States or in any State thereof or
the District of Columbia.
"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 may be approved by a significant segment of
the accounting profession of the United States, as in effect on the Issue Date.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"GUARANTORS" means each of the Subsidiary Guarantors and Pro-Fac,
and "GUARANTOR" means any one of the foregoing.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to (i) any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates, (ii) agreements or arrangements
designed to protect such Person against fluctuations in foreign currency
exchange rates in the conduct of its operations, or (iii) any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity
prices, in each case, entered into in the ordinary course of business for bona
fide hedging purposes and not for the purpose of speculation.
"HOLDER" means a Person in whose name a Note is registered on the
Registrar's books.
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"IAI GLOBAL NOTE" means a permanent global Note in registered
form representing the aggregate principal amount of Notes transferred to
Institutional Accredited Investors.
"IMMATERIAL SUBSIDIARY" means any Restricted Subsidiary of the
Company that has, together with all other Immaterial Subsidiaries in the
aggregate, assets, revenues and net income comprising less than 2.00% of the
assets, revenues and net income of the Company and its Subsidiaries taken as a
whole.
"INCUR" means, with respect to any Indebtedness or Obligation,
incur, create, issue, assume, Guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to such Indebtedness
or Obligation; provided that (i) the Indebtedness of a Person existing at the
time such Person became a Restricted Subsidiary shall be deemed to have been
incurred by such Restricted Subsidiary and (ii) neither the accrual of interest
nor the accretion of accreted value shall be deemed to be an incurrence of
Indebtedness.
"INITIAL NOTES" means the 11-7/8% Senior Subordinated Notes due
2008 of the Company issued on the Issue Date and authenticated and delivered
under this Indenture pursuant to Section 2.02 of this Indenture.
"INDEBTEDNESS" of any Person at any date means, without
duplication: (i) all liabilities, contingent or otherwise, of such Person for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof); (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with respect thereto); (iv)
all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services, which payable is not overdue by more than 60 days
according to the original terms of sale unless such payable is being contested
in good faith; (v) the maximum fixed redemption or repurchase price of all
Disqualified Capital Stock of such Person; (vi) all Capitalized Lease
Obligations of such Person; (vii) all Indebtedness of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person; (viii) all Indebtedness of others guaranteed by such Person to the
extent of such Guarantee; provided that Indebtedness of the Company or its
Restricted Subsidiaries that is guaranteed by the Company or the Company's
Restricted Subsidiaries shall only be counted once in the calculation of the
amount of Indebtedness of the Company and its Restricted Subsidiaries on a
consolidated basis; (ix) all Attributable Indebtedness; and (x) to the extent
not otherwise included in this definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the
maximum liability of such Person for any such contingent obligations at such
date and, in the case of clause (vii), the
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lesser of (A) the Fair Market Value of any asset subject to a Lien securing the
Indebtedness of others on the date that the Lien attaches and (B) the amount of
the Indebtedness secured. For purposes of the preceding sentence, the "maximum
fixed redemption or repurchase price" of any Disqualified Capital Stock that
does not have a fixed redemption or repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased or redeemed on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock (or any equity security for which it may be exchanged
or converted), such fair market value shall be determined in good faith by the
Board of Directors of such Person, which determination shall be evidenced by a
Board Resolution.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with its terms.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, qualified to perform
the task for which it has been engaged and disinterested and independent with
respect to the Company and its Affiliates.
"INITIAL PURCHASERS" means each of Warburg Dillon Read LLC and
Nesbitt Burns Securities Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"INTEREST PAYMENT DATE" shall have the meaning set forth in the
Notes.
"INVESTMENTS" of any Person means (i) all investments by such
Person in any other Person in the form of loans, advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business) or similar credit extensions
constituting Indebtedness of such Person, and any Guarantee of Indebtedness of
any other Person, (ii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any other
Person and (iii) all other items that would be classified as investments
(including without limitation purchases of assets outside the ordinary course of
business) on a balance sheet of such Person prepared in accordance with GAAP.
"ISSUE DATE" means November 18, 1998, the date the Initial Notes
are originally issued.
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"LIEN" means, with respect to any asset or property, any
mortgage, deed of trust, lien (statutory or other), pledge, lease, easement,
restriction, covenant, charge, security interest or other encumbrance of any
kind or nature in respect of such asset or property, whether or not filed,
recorded or otherwise perfected under applicable law, including without
limitation any conditional sale or other title retention agreement, and any
lease in the nature thereof, any option or other agreement to sell, and any
filing of, or agreement to give, any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction (other than
cautionary filings in respect of operating leases).
"MATURITY DATE" means November 1, 2008.
"MOODY'S" means Moody's Investors Service, Inc., and its
successors.
"NET AVAILABLE PROCEEDS" means, with respect to any Asset Sale,
the proceeds thereof in the form of cash or Cash Equivalents including payments
in respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary), net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of legal counsel, accountants and investment banks) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), (iii) amounts required to be paid to any Person (other than the
Company or any Restricted Subsidiary) owning a beneficial interest in the
properties or assets subject to the Asset Sale or having a Lien therein and (iv)
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pensions and other postemployment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee; provided, however, that any
amounts remaining after adjustments, revaluations or liquidations of such
reserves shall constitute Net Available Proceeds.
"NEW CREDIT FACILITY" means the Credit Agreement dated as of
September 23, 1998 by and among the Company, Pro-Fac, the other guarantors party
thereto, Harris Trust and Savings Bank, individually and as Administrative
Agent, Bank of Montreal, Chicago Branch, individually and as a Syndication
Agent, and the other lenders party thereto, together with any guarantees,
security agreements or other collateral documents and any other related
documents, as any of the foregoing may be subsequently amended, restated,
refinanced, or replaced from time to time, and shall include agreements in
respect of Hedging Obligations designed to protect against fluctuations in
interest rates and entered into with respect to loans thereunder.
-13-
"NON-RECOURSE PURCHASE MONEY INDEBTEDNESS" means Indebtedness of
the Company or any of its Restricted Subsidiaries incurred (a) to finance the
purchase of any assets of the Company or any of its Restricted Subsidiaries
within 90 days of such purchase, (b) to the extent the amount of Indebtedness
thereunder does not exceed 100% of the purchase cost of such assets, (c) to the
extent the purchase cost of such assets is or should be included in "additions
to property, plant and equipment" in accordance with GAAP, and (d) to the extent
that such Indebtedness is non-recourse to the Company or any of its Restricted
Subsidiaries or any of their respective assets other than the assets so
purchased.
"NON-U.S. PERSON" means a person that is not a U.S. person, as
defined in Regulation S.
"NOTES" means the Initial Notes and the Exchange Notes treated as
a single class of securities, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"OBLIGATION" means any principal, interest (including, in the
case of Senior Indebtedness, interest accruing subsequent to the filing of a
petition in bankruptcy or insolvency at the rate specified in the document
relating to such Senior Indebtedness, whether or not such interest is an allowed
claim permitted to be enforced against the obligor under applicable law),
penalties, fees, indemnification, reimbursements, costs, expenses, damages and
other liabilities payable under the documentation governing any Indebtedness.
"OFFER" means a Change of Control Offer or a Net Proceeds Offer,
as the context requires.
"OFFER PERIOD" means the Change of Control Offer Period or the
Net Proceeds Offer Period, as the context requires.
"OFFICER" means any of the following of any Person: the Chairman
of the Board, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer or the Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
Officers.
"OLD NOTES" means the Company's 12-1/4% Senior Subordinated Notes
due 2005.
"144A GLOBAL NOTE" means a permanent global Note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A under the Securities Act.
-14-
"OPINION OF COUNSEL" means a written opinion from legal counsel
(such counsel may be an employee of or counsel to the Company or the Trustee)
that complies with the requirements of this Indenture.
"PAYMENT RESTRICTION" with respect to a Subsidiary of any Person,
means any encumbrance, restriction of limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or Indebtedness owed to such
Person or any other Subsidiary of such Person, (b) make loans or advances to
such Person or any other Subsidiary or such Person, (c) Guarantee any
Indebtedness of such Person or any other Subsidiary of such Person or (d)
transfer any of its properties or assets to such Person or any other Subsidiary
of such Person (other than customary restrictions on transfers of property
subject to a Lien permitted under the Indenture) or (ii) such Person or any
other Subsidiary of such Person to receive or retain any such dividends,
distributions or payments, loans or advances, guarantee, or transfer of
properties or assets.
"PERMITTED INDEBTEDNESS" means any of the following:
(i) Indebtedness of the Company and the related guarantees of the
Subsidiary Guarantors under the New Credit Facility in an aggregate
principal amount at any time outstanding not to exceed (a) under the
Term Loan Facilities, $455.0 million, less any required permanent
repayments actually made thereunder (excluding any such repayment to the
extent refinanced and replaced at the time of payment), and (b) under
the Revolving Loan Facility, the greater of (x) $200.0 million, and (y)
the sum of (A) 80% of the book amount of all accounts receivable owned
by the Company and its Restricted Subsidiaries and (B) 50% of the book
value of all inventory owned by the Company and its Restricted
Subsidiaries, in each case computed in accordance with GAAP as of the
end of the last fiscal month of the Company, reduced by any required
permanent repayments actually made (which are accompanied by a
corresponding permanent commitment reduction) in respect of the
Revolving Loan Facility (excluding any such repayment and commitment
reductions to the extent refinanced and replaced at the time of
payment);
(ii) Indebtedness under the Notes, the Note Guarantees and this
Indenture;
(iii) Existing Indebtedness;
(iv) Indebtedness under Hedging Obligations, provided that (1)
such Hedging Obligations are related to payment obligations on Permitted
Indebtedness or Indebtedness otherwise permitted by Section 4.07, and
(2) the notional principal
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amount of such Hedging Obligations at the time incurred does not exceed
the principal amount of such Indebtedness to which such Hedging
Obligations relate;
(v) Indebtedness of the Company to a Subsidiary Guarantor and
Indebtedness of any Subsidiary Guarantor to the Company or any other
Subsidiary Guarantor; provided, however, that upon either (1) the
subsequent issuance (other than directors' qualifying shares), sale,
transfer or other disposition of any Capital Stock or any other event
which results in any such Subsidiary Guarantor ceasing to be a
Subsidiary Guarantor or (2) the transfer or other disposition of any
such Indebtedness (except to the Company or a Subsidiary Guarantor), the
provisions of this clause (v) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes of Section
4.07 at the time the Subsidiary Guarantor in question ceased to be a
Subsidiary Guarantor or the time such transfer or other disposition
occurred;
(vi) Indebtedness in respect of bid, performance or surety bonds
or insurance of self-reinsurance obligations (including to secure
worker's compensation and other similar insurance coverage) issued for
the account of the Company in the ordinary course of business consistent
with past practice, including guarantees or obligations of the Company
with respect to letters of credit supporting such bid, performance or
surety obligations or such insurance or self-insurance obligations (in
each case other than for an obligation for money borrowed);
(vii) Indebtedness in respect of Non-Recourse Purchase Money
Indebtedness incurred by the Company or any Restricted Subsidiary;
(viii) Refinancing Indebtedness;
(ix) Indebtedness in respect of the Guarantee by the Company of
revolving credit indebtedness incurred by Great Lakes Kraut Company in
an aggregate principal amount at any time outstanding not to exceed
$10.0 million; and
(x) Indebtedness incurred by the Company or any Subsidiary
Guarantor, in addition to Indebtedness incurred pursuant to the
foregoing clauses of this definition, with an aggregate principal face
or stated amount (as applicable) at any time outstanding for all such
Indebtedness incurred pursuant to this clause not in excess of $25.0
million.
"PERMITTED JUNIOR SECURITIES" means any securities of the Company
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Notes are subordinated to Senior Indebtedness.
-16-
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"PLAN OF LIQUIDATION" with respect to any Person, means a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"PRO-FAC" means Pro-Fac Cooperative, Inc., a New York cooperative
corporation, unless and until a successor replaces it in accordance with Article
5 and thereafter means such successor. For avoidance of doubt, on and after the
Pro-Fac Merger, references herein to "Pro-Fac" shall be deemed to be references
to Pro-Fac, as successor corporation to the Company.
"PRO-FAC DIRECTOR" means any Person who, as a director, officer
or other designee of Pro-Fac, serves as a director of the Company.
"PRO-FAC MARKETING AGREEMENT" means the Marketing and
Facilitation Agreement between Pro-Fac and the Company in the form existing as
of the Issue Date, as such agreement may be amended, restated, renewed, extended
or replaced in accordance with this Indenture.
"PRO-FAC MERGER" means the merger of the Company with and into
Pro-Fac with Pro-Fac as the surviving corporation.
"PURCHASE DATE" means the Change of Control Purchase Date or the
Net Proceeds Purchase Date, as the context requires.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"RECORD DATE" has the meaning set forth in the Notes.
"REFINANCING INDEBTEDNESS" means Indebtedness of the Company or a
Restricted Subsidiary issued in exchange for, or the proceeds from the issuance
and sale or disbursement of which are used substantially concurrently to repay,
redeem, refund, refinance, discharge or otherwise retire for value, in whole or
in part (collectively, "REPAY"), or constituting an amendment, modification or
supplement to or a deferral or renewal of (collectively, an "AMENDMENT"), any
Indebtedness of the Company or any Restricted Subsidiary (the
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"REFINANCED INDEBTEDNESS") in a principal amount not in excess of the principal
amount of the Refinanced Indebtedness (or, if such Refinancing Indebtedness
refinances Indebtedness under a revolving credit facility or other agreement
providing a commitment for subsequent borrowings, with a maximum commitment not
to exceed the maximum commitment under such revolving credit facility or other
agreement), plus the amount of accrued but unpaid interest thereon and the
amount of any reasonably determined prepayment premium necessary to accomplish
such refinancing and such reasonable fees and expenses incurred in connection
therewith; provided that: (i) the Refinancing Indebtedness is the obligation of
the same Person as that of the Refinanced Indebtedness; (ii) if the Refinanced
Indebtedness was subordinated to or pari passu with the Note Indebtedness, then
such Refinancing Indebtedness, by its terms, is expressly pari passu with (in
the case of Refinanced Indebtedness that was pari passu with) the Note
Indebtedness, or subordinate in right of payment to (in the case of Refinanced
Indebtedness that was subordinated to) the Note Indebtedness at least to the
same extent as the Refinanced Indebtedness; (iii) the portion, if any, of the
Refinancing Indebtedness that is scheduled to mature on or prior to the maturity
date of the Notes has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness
being repaid that is scheduled to mature on or prior to the maturity date of the
Notes; and (iv) the Refinancing Indebtedness is secured only to the extent, if
at all, and by the assets (which may include after-acquired assets), that the
Refinanced Indebtedness is secured.
"REGISTRATION" means a registered exchange offer for the Notes by
the Company or other registration of the Notes under the Securities Act pursuant
to and in accordance with the terms of the Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company, Pro-Fac and the
Initial Purchasers, as such agreement may be amended, modified or supplemented
from time to time.
"REGISTRATION STATEMENT" means the Registration Statement
pursuant to and as defined in the Registration Rights Agreement.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL NOTE" means a permanent global Note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"RELATED BUSINESS" means any business in which the Company and
its Subsidiaries operate on the Issue Date, or that is closely related to or
complements the business of the Company and its Subsidiaries, as such business
exists on the Issue Date.
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"RELATED BUSINESS INVESTMENT" means any Investment directly by
the Company or its Restricted Subsidiaries in any Related Business.
"REPRESENTATIVE" means, with respect to any Senior Indebtedness,
the indenture trustee or other trustee, agent or other representative(s), if
any, of holders of such Senior Indebtedness.
"RESTRICTED DEBT PAYMENT" means any purchase, redemption,
defeasance (including without limitation covenant or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Restricted Subsidiary, prior to the scheduled maturity or prior to any scheduled
repayment of principal or sinking fund payment, as the case may be, in respect
of Subordinated Indebtedness.
"RESTRICTED INVESTMENT" means any Investment by the Company or
any Restricted Subsidiary (other than investments in Cash Equivalents) in any
Person that is not the Company or a Restricted Subsidiary, including in any
Unrestricted Subsidiary, but shall not include (i) Investments by the Company or
any Restricted Subsidiary in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company that is engaged in a
Related Business or (b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is
engaged in a Related Business; (ii) loans by the Company or any of its
Restricted Subsidiaries to employees of the Company or any of its Restricted
Subsidiaries the proceeds of which are applied to purchase Capital Stock of
Pro-Fac in amount not to exceed $2.0 million at any time outstanding; or (iii)
the Guarantee by the Company of revolving credit indebtedness incurred by Great
Lakes Kraut Company in an aggregate principal amount at any time outstanding not
to exceed $10.0 million; or (iv) demand loans for working capital purposes from
the Company to Pro-Fac made prior to the consummation of the Pro-Fac Merger, not
exceeding $40.0 million at any time outstanding, which will be reduced to zero
for a period of not less than 15 consecutive days in each fiscal year.
"RESTRICTED PAYMENT" means with respect to any Person: (i) the
declaration or payment of any dividend (other than a dividend declared and paid
(x) by a Wholly-Owned Restricted Subsidiary to holders of its Capital Stock, or
(y) by a Subsidiary (other than a Wholly-Owned Restricted Subsidiary) to its
shareholders on a pro rata basis, but only to the extent of the dividends
actually received by the Company or a Restricted Subsidiary) or the making of
any other payment or distribution of cash, securities or other property or
assets in respect of such Person's Capital Stock (except that a dividend payable
solely in Capital Stock (other than Disqualified Capital Stock) of such Person
shall not constitute a Restricted Payment) (it being understood that the
allocation of retains to Pro-Fac's members on and after consummation of the
Pro-Fac Merger shall not be deemed a Restricted Payment); (ii) any payment on
account of the purchase, redemption, retirement or other acquisition for value
of
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(A) the Capital Stock of the Company or (B) the Capital Stock of any
Restricted Subsidiary, or any other payment or distribution made in respect
thereof, either directly or indirectly (other than a payment solely in Capital
Stock that is not Disqualified Capital Stock, and excluding any such payment to
the extent actually received by the Company or a Restricted Subsidiary); (iii)
any Restricted Investment; or (iv) any Restricted Debt Payment.
"RESTRICTED SECURITY" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"REVOLVING LOAN FACILITY" means the revolving loan facility
provided under the New Credit Facility.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTIONS" means with respect to any
Person an arrangement with any bank, insurance company or other lender or
investor or to which such lender or investor is a party, providing for the
leasing by such Person of any property or asset of such Person which has been or
is being sold or transferred by such Person to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such property or asset.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as
amended.
"SENIOR INDEBTEDNESS" means, with respect to the Company or any
Guarantor, all Indebtedness and other Obligations specified below payable
directly or indirectly by the Company or such Guarantor, as the case may be,
whether outstanding on the Issue Date or thereafter created, incurred or assumed
by the Company or such Guarantor: (i) the principal of and interest on and all
other Indebtedness and Obligations related to the New Credit Facility
(including, without limitation, all loans, letters of credit and unpaid drawings
with respect thereto and other extensions of credit under the New Credit
Facility, and all expenses, fees, reimbursements, indemnities and other amounts
owing pursuant to the New Credit Facility), (ii) amounts payable in respect of
any Hedging Obligations, (iii) in addition to the amounts described in (i) and
(ii), all Indebtedness not prohibited by Section 4.07 that is not expressly pari
passu with, or subordinated to, the Notes or the Note Guarantees, as the case
may be, (iv)
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all Capital Lease Obligations outstanding on the Issue Date, and (v) all
Refinancing Indebtedness permitted under this Indenture of Indebtedness
specified in clauses (i) through (iv). Notwithstanding anything to the contrary,
Senior Indebtedness will not include (a) any Indebtedness which by the express
terms of the agreement or instrument creating, evidencing or governing the same
is junior or subordinate in right of payment to any item of Senior Indebtedness,
(b) any trade payable arising from the purchase of goods or materials or for
services obtained in the ordinary course of business, (c) Indebtedness incurred
(but only to the extent incurred) in violation of this Indenture as in effect at
the time of the respective incurrence, (d) any Indebtedness of the Company that,
when incurred, was without recourse to the Company, (e) any Indebtedness to any
employee of the Company or any of its respective Subsidiaries, (f) any liability
for taxes owned or owing by the Company, (g) any Indebtedness represented by the
Company's Old Notes and any Guarantee thereof by Pro-Fac or any Subsidiary
Guarantor, or (h) any Subordinated Indebtedness. Indebtedness represented by the
Old Notes and any Guarantee thereof by Pro-Fac or any Subsidiary Guarantor shall
be pari passu with the Notes and the Note Guarantees, respectively.
"SENIOR SUBORDINATED INDEBTEDNESS" of the Company means the Notes
and any other Indebtedness of the Company (including the Old Notes) that
specifically provides that such Indebtedness is to rank pari passu with the
Notes in right of payment and is not subordinated by its terms in right of
payment to any Indebtedness or other obligation of the Company which is not
Senior Indebtedness. "Senior Subordinated Indebtedness" of any Guarantor has a
correlative meaning.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company that
would be a "Significant Subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the Issue Date, except all references to "10 percent" in such
definition shall be changed to "2 percent".
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or
any Restricted Subsidiary that is subordinated in right of payment to the Notes
or the Note Guarantee of such Restricted Subsidiary, respectively, including,
without limitation, the Subordinated Promissory Note and any additional
promissory notes issued in accordance with the terms thereof as in effect on the
Issue Date.
"SUBORDINATED PROMISSORY NOTE" means the Subordinated Promissory
Note dated as of September 23, 1998 made by the Company to Deans Food Company in
principal amount of $30.0 million issued in connection with the consummation of
the Acquisition.
"SUBSIDIARY" of any Person means (i) any corporation of which at
least a majority of the aggregate voting power of all classes of the Voting
Stock is owned by such Person directly or through one or more other Subsidiaries
of such Person and (ii) any entity other than a corporation in which such
Person, directly or indirectly, owns at least a majority of the
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Voting Stock of such entity entitling the holder thereof to vote or otherwise
participate in the selection of the governing body, partners, managers or others
that control the management and policies of such entity. Unless otherwise
specified, "Subsidiary" means a Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" means (i) each of Linden Oaks Corporation,
a Delaware corporation, and Kennedy Endeavors, Incorporated, a Washington
corporation and (ii) each other person who is required to become (or whom the
Company otherwise causes to become) a Subsidiary Guarantor by the terms of this
Indenture.
"TERM LOAN FACILITIES" means the Term Loan Facilities provided
under the New Credit Facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) aS in effect on the Issue Date (except as provided in Section 9.03
herein).
"TRUSTEE" means IBJ Schroder Bank & Trust Company until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means such successor.
"TRUST OFFICER" when used with respect to the Trustee means the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller 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.
"UNRESTRICTED NOTES" means one or more Notes that do not and are
not required to bear the Private Placement Legend, in the form set forth in
EXHIBIT B.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of the Company in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Company
may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, and
any such designation shall be deemed to be a Restricted Investment at the time
of and immediately upon such designation by the Company and its Restricted
Subsidiaries in the amount of the Consolidated Net Worth of such designated
Subsidiary and its consolidated Subsidiaries at such time, provided that such
designation shall be permitted only if (A) the Company and its Restricted
Subsidiaries would be able to make the Restricted Investment
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deemed made pursuant to such designation at such time, (B) no portion of the
Indebtedness or any other obligation (contingent or otherwise) of such
Subsidiary (x) is Guaranteed by the Company or any Restricted Subsidiary, (y) is
recourse to the Company or any Restricted Subsidiary or (z) subjects any
property or asset of the Company or any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof and (C) no
default or event of default with respect to any Indebtedness of such Subsidiary
would permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare such Indebtedness of the Company or any Restricted
Subsidiary due and payable prior to its maturity. The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary,
and any such designation shall be deemed to be an incurrence by the Company and
its Restricted Subsidiaries of the Indebtedness (if any) of such Subsidiary so
designated for purposes of Section 4.07 as of the date of such designation,
provided that such designation shall be permitted only if immediately after
giving effect to such designation and the incurrence of any such additional
Indebtedness deemed to have been incurred thereby (x) the Company would meet the
Coverage Ratio Incurrence Condition and (y) no Default or Event of Default shall
have occurred and be continuing. Any such designation by the Board of Directors
described in the two preceding sentences shall be evidenced to the Trustee by
the filing with the Trustee of a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and setting forth the
underlying calculations of such certificate.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. PERSON" has the meaning ascribed to it in Regulation S.
"VOTING STOCK" with respect to any Person, means securities of
any class of Capital Stock of such Person entitling the holders thereof (whether
at all times or only so long as no senior class of stock or other relevant
equity interest has voting power by reason of any contingency) to vote in the
election of members of the board of directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY", when applied to any
Indebtedness at any date, means 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 payment
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.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted
Subsidiary of which 100% of the Capital Stock (except for directors' qualifying
shares or certain minority
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interests owned by other Persons solely due to local law requirements that there
be more than one stockholder, but which interest is not in excess of what is
required for such purpose) is owned directly by the Company or through one or
more Wholly-Owned Restricted Subsidiaries.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
"AFFILIATE TRANSACTION".................................. 4.10
"AGENT MEMBERS".......................................... 2.08(a)
"AUTHENTICATING AGENT"................................... 2.02
"CHANGE OF CONTROL OFFER"................................ 4.15(b)
"CHANGE OF CONTROL OFFER PERIOD"......................... 4.15(c)
"CHANGE OF CONTROL PURCHASE DATE"........................ 4.15(c)
"CHANGE OF CONTROL PURCHASE PRICE"....................... 4.15(a)
"CINS"................................................... 2.17
"COMMISSION"............................................. 4.02
"COVENANT DEFEASANCE".................................... 8.01(b)
"CUSIP".................................................. 2.17
"EVENT OF DEFAULT"....................................... 6.01(a)
"EXCESS PROCEEDS"........................................ 4.16(b)
"GLOBAL NOTES"........................................... 2.01
"GLOBAL NOTE HOLDER"..................................... 2.08(a)
"INSOLVENCY OR LIQUIDATION PROCEEDING"................... 10.02
"LEGAL DEFEASANCE"....................................... 8.01(b)
"NET PROCEEDS DEFICIENCY"................................ 4.16(c)
"NET PROCEEDS OFFER"..................................... 4.16(c)
"NET PROCEEDS OFFER PERIOD".............................. 4.16(c)
"NET PROCEEDS PURCHASE DATE"............................. 4.16(c)
"NON-PAYMENT DEFAULT".................................... 10.03(b)
"NOTE AMOUNT"............................................ 4.16(d)
"NOTE GUARANTEE"......................................... 11.01
"NOTE INDEBTEDNESS"...................................... 10.01
"NOTE PORTION OF EXCESS PROCEEDS"........................ 4.16(d)
"NOTICE OF DEFAULT"...................................... 6.01(b)
"OFFERED PRICE".......................................... 4.16(c)
"OTHER INDEBTEDNESS"..................................... 4.16(d)
"PAYING AGENT"........................................... 2.03
"PAYMENT AMOUNT"......................................... 4.16(c)
"PAYMENT BLOCKAGE NOTICE"................................ 10.03(b)
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"PAYMENT BLOCKAGE PERIOD"................................ 10.03(b)
"PAYMENT DEFAULT"........................................ 10.03(a)
"PHYSICAL NOTES"......................................... 2.01
"PRIVATE PLACEMENT LEGEND"............................... 2.07
"REGISTRAR".............................................. 2.03
"RESTRICTED PERIOD"...................................... 2.09(b)
"SUCCESSOR".............................................. 5.01(a)
"TRUSTEE EXPENSES"....................................... 6.08
SECTION 1.03. Incorporation by Reference of TIA. Whenever this
Indenture refers to a provision of the TIA, the portion of the provision
required to be incorporated herein in order for this Indenture to be qualified
under the TIA is incorporated by reference in, and made a part of, this
Indenture. Any terms incorporated by reference in this Indenture that are
defined by the TIA, defined by the TIA by reference to another statute or
defined by the Commission in a rule under the TIA have the meanings so assigned
to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural
include the singular;
(4) words used herein implying any gender shall apply to both
genders;
(5) "herein" "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subsection;
(6) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP, applied on a basis
consistent with the most recent audited consolidated financial
statements of the Company;
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(7) "$," "U.S. Dollars" and "United States Dollars" each refer to
United States dollars, or such other money of the United States that at
the time of payment is legal tender for payment of public and private
debts;
(8) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with
respect to any Note, such mention shall be deemed to include mention of
the payment of Additional Interest to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof;
(9) provisions apply to successive events and transactions; and
(10) any reference to a Section or Article refers to such Section
or Article of this Indenture.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating. The Initial Notes and the
Trustee's certificate of authentication relating thereto shall be substantially
in the form of EXHIBIT A. The Exchange Notes and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of EXHIBIT B.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or depository rule or usage. The Company and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement on them.
Each Note shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes, annexed hereto
as EXHIBITS A and B, shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A or in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global Notes in registered form, substantially in the
form set forth in EXHIBIT A (the "GLOBAL NOTES"), deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided and shall bear the legends set forth in
Section 2.07. The aggregate principal amount of the Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
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Notes issued in exchange for interests in the Global Notes
pursuant to Section 2.08 may be issued in the form of permanent certificated
Notes in registered form (the "PHYSICAL NOTES") and shall bear the first legend
set forth in Section 2.07.
All Notes offered and sold in reliance on Regulation S shall
remain in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement.
SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount. Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer or Assistant Secretary whose signature is on a Note
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue on the Issue Date in aggregate principal amount not to exceed $200,000,000
and (ii) Unrestricted Notes from time to time for issue only in exchange for a
like principal amount of Initial Notes, in each case upon written orders of the
Company in the form of an Officers' Certificate. In each case, the Officers'
Certificate shall specify the amount of Notes to be authenticated, the date on
which the Notes are to be authenticated, the aggregate principal amount of Notes
outstanding on the date of authentication and whether the Notes are to be
Initial Notes or Unrestricted Notes and shall further specify the amount of such
Notes to be issued as a Global Note or Physical Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed $200,000,000, except as
provided in Section 2.10.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent (the
"AUTHENTICATING Agent") reasonably acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
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authentication by such Authenticating Agent. An Authenticating Agent has the
same rights as an Agent to deal with the Company, the Guarantors or with any of
their respective Affiliates.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency (which shall be located in the Borough of Manhattan
in the City of New York) (i) where Notes may be presented for registration of
transfer or for exchange (subject to Sections 2.06, 2.08 and 2.09) (the
"REGISTRAR"), (ii) where Notes may be presented for payment (the "PAYING AGENT")
and (iii) where notices to or upon the Company and the Guarantors in respect of
the Notes or this Indenture may be served. The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change the Paying
Agent, Registrar or co-registrar with prior written notice to the Trustee. The
Company shall notify the Trustee and the Trustee shall notify the Holders of the
name and address of any Agent not a party to this Indenture. The Company shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, and such agreement shall incorporate the provisions of the TIA and
implement the provisions of this Indenture that relate to such Agent.
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes.
The Company, the Guarantors or any of their respective Affiliates may act as
Paying Agent, Registrar or co-registrar; provided, however, that neither the
Company, any Guarantor nor any of their respective Affiliates may act as Paying
Agent after the occurrence and continuance of an Event of Default. If the
Company fails to appoint or maintain a Registrar and/or Paying Agent, the
Trustee shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07.
SECTION 2.04. Paying Agent to Hold Money in Trust. By at least
12:00 noon (Eastern Standard Time) on the date on which any principal of or
interest on any Note is due and payable, the Company shall deposit with the
Paying Agent U.S. Legal Tender in immediately available funds sufficient to pay
such principal or interest when due. The Company shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent will hold in
trust for the Holders' benefit or the Trustee all money the Paying Agent holds
for the redemption or purchase of the Notes or for the payment of principal of,
or premium, if any, or interest (including Additional Interest, if any) on the
Notes, and will notify the Trustee of any default by the Company in providing
the Paying Agent with sufficient funds to redeem or purchase Notes or make any
payment on the Notes as and to the extent required to be redeemed, purchased or
paid under the terms of this Indenture. While any such default continues, the
Trustee may require the Paying Agent to pay all money it holds to the
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Trustee and account for any funds disbursed. The Company at any time may require
the Paying Agent to pay all money it holds to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or any of its
Affiliates) shall have no further liability for the money it delivered to the
Trustee. If the Company, any Guarantor or any of their respective Affiliates
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the Holders' benefit all money it holds as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders and shall otherwise comply with Section
312(a) of the TIA. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, at least seven (7) Business Days before each Record 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 that sets forth
the names and addresses of, and the aggregate principal amount of Notes held by,
each Holder, and the Company shall otherwise comply with Section 312(a) of the
TIA.
SECTION 2.06. Transfer and Exchange. (a) The Company appoints the
Trustee as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
(b) Neither the Trustee nor the Registrar shall be required (i)
to register the transfer of or exchange any Note selected for redemption, (ii)
to register the transfer of or exchange any Note for a period of 15 days before
the mailing of a notice of redemption and ending on the date of such mailing or
(iii) to register the transfer or exchange of a Note between a Record Date and
the next succeeding Interest Payment Date.
(c) No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Registrar may require a Holder to furnish appropriate endorsements and transfer
documents and payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.13, 3.06, 3.08 or 9.05, which the Company shall pay).
(d) Prior to due presentment for registration of transfer of any
Note to the Trustee, the Trustee, any Agent and the Company shall deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note (whether or not such Note shall be overdue and notwithstanding any notation
of ownership or other writing on such Note made by anyone other than the
Company, the Registrar, or any co-registrar) for the purpose of receiving
payment of principal of, premium, if any, interest (including Additional
Interest, if any) on such Note and for all other purposes, and notice to the
contrary shall not affect the Trustee, any Agent or the Company.
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(e) A Holder may transfer a Note only by written application to
the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Registrar. Prior to the
registration of any transfer by a Holder as provided herein, the Company, the
Trustee, and any Agent shall treat the person in whose name the Note is
registered as the absolute owner thereof for all purposes whether or not the
Note shall be overdue, and neither the Company, the Trustee, nor any such Agent
shall be affected by notice to the contrary. Furthermore, any Holder of a Global
Note shall, by acceptance of such Global Note, agree that transfers of
beneficial interests in such Global Note may be effected through a book entry
system maintained by the Holder of such Global Note (or its agent) and that
ownership of a beneficial interest in the Note shall be required to be reflected
in a book entry. When Notes are presented to the Registrar or a co-registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations (including an
exchange of Initial Notes for Exchange Notes), the Registrar or co-registrar, as
relevant, shall register the transfer or make the exchange as requested if the
requirements for such transactions set forth herein are met; provided that no
exchanges of Initial Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and provided
further that any Initial Notes that are exchanged for Exchange Notes shall be
canceled by the Trustee. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's request.
All Notes issued upon any transfer or exchange of Notes shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
SECTION 2.07. Restrictive Legends. (a) Each Global Note and
Physical Note that constitutes a Restricted Security or is sold in compliance
with Regulation S shall bear the following legend (the "PRIVATE PLACEMENT
LEGEND") on the face thereof until after the second anniversary of the later of
the Issue Date and the last date on which the Company or any Affiliate of the
Company was the owner of such Note (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Company, unless otherwise agreed by the Company and
the Holder thereof):
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
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
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APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY (1) BY ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT AND (2) 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 OR
ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE
OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS NOTE (THE "RESALE RESTRICTION
TERMINATION DATE") (X) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY: (i) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A
U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT OR (d) 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), (ii) TO THE COMPANY OR (iii) 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 (Y) 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 (X)
ABOVE. THE FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO
THE RESALE RESTRICTION TERMINATION DATE.
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(b) Each Global Note shall also bear the following legend on the
face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR
BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 2.06, 2.08 AND 2.09 OF THE
INDENTURE GOVERNING THIS NOTE.
SECTION 2.08. Book-Entry Provisions for Global Notes. (a) The
Global Notes initially shall (i) be registered in the name of the Depository or
the nominee of such Depository (the "GLOBAL NOTE HOLDER"), (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Section 2.07.
Members of, or participants in, the Depository ("AGENT MEMBERS")
shall have no 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 Notes, and the Depository may be treated by the Company, the Trustee and
any Agent of the Company or the Trustee as the absolute owner of the Global
Notes for all purposes whatsoever. Notwithstanding the foregoing,
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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 Notes 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 Notes may be transferred
or, subject to Section 2.01, exchanged for Physical Notes in accordance with the
rules and procedures of the Depository and the provisions of Section 2.09. In
addition, Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Notes if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the Global Notes and a successor depositary is not appointed by
the Company within 90 days of such notice or (ii) an Event of Default of which
the Trustee has actual notice has occurred and is continuing and the Registrar
has received a written request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in such Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b), such Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Note, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph
(b), (c) or (d) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(d) of Section 2.09, bear the Private Placement Legend.
(f) The Holder of the Global Notes may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
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SECTION 2.09. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note constituting a Restricted Security to any
Institutional Accredited Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the transferee is not an Affiliate of
the Company and the requested transfer is after the second anniversary
of the later of (a) the Issue Date and (b) the last date on which the
Company or an Affiliate of the Company was the owner of such Note (or
any predecessor security) or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision
thereunder or (y) the proposed transferee has delivered to the Registrar
a certificate substantially in the form of EXHIBIT C and such other
information or legal opinions that the Trustee or the Company may
reasonably require in order to confirm that such transfer is being made
pursuant to an exemption from or in a transaction not subject to the
registration requirements of the Securities Act;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the IAI Global Note, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and an increase in the principal amount of the IAI
Global Note in an amount equal to the principal amount of Physical Notes
to be transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any
required legal opinions and certifications, the Registrar shall register
the transfer and reflect on its books and records the date and (A) a
decrease in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the
principal amount of the IAI Global Note in an amount equal to the
principal amount of the Global Note to be transferred.
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(b) Transfers to Non-U.S. Persons. The following additional
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Note to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the transferee is not an Affiliate of
the Company and the requested transfer is after the second anniversary
of the later of (a) the Issue Date and (b) the last date on which the
Company or an Affiliate of the Company was the owner of such Note (or
any predecessor security) or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision
thereunder or (y) the proposed transferor has delivered to the Registrar
a certificate substantially in the form of EXHIBIT D and such other
information or legal opinions that the Trustee or the Company may
reasonably require in order to confirm that such transfer is being made
pursuant to an exemption from or in a transaction not subject to the
registration requirements of the Securities Act;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the Regulation S Global Note, upon
receipt by the Registrar of (x) written instructions given in accordance
with the Depository's and the Registrar's procedures and (y) the
appropriate certificate, if any, required by clause (y) of paragraph (i)
above, together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any
required legal opinions and certifications, the Registrar shall register
the transfer and reflect on its books and records the date and (A) a
decrease in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the
principal amount of the Regulation S Global Note in an amount equal to
the principal amount of the Global Note to be transferred; and
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(iv) until the 41st day after the Issue Date (the "RESTRICTED
PERIOD"), an owner of a beneficial interest in the Regulation S Global
Note may not transfer such interest to a transferee that is a U.S.
person or for the account or benefit of a U.S. Person within the meaning
of Rule 902(o) of the Securities Act. During the Restricted Period, all
beneficial interests in the Regulation S Global Note shall be
transferred only through Cedel or Euroclear, either directly if the
transferor and transferee are participants in such systems, or
indirectly through organizations that are participants therein.
(c) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that it is purchasing
the Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is
a QIB within the meaning of Rule 144A, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member, and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the 144A
Global Note in an amount equal to the principal amount of the Physical
Notes to be transferred, and the Trustee shall cancel the Physical Notes
so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note
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from which interests are to be transferred in an amount equal to the
principal amount of the Notes to be transferred and (B) an increase in
the principal amount of the 144A Global Note in an amount equal to the
principal amount of the Global Note to be transferred.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstance contemplated by paragraph (a)(i)(x) of this Section
2.09 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Note has been sold pursuant to an effective registration statement under
the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such Note set forth in
this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.08 or this Section
2.09. The Company shall have the right to inspect and make copies at its own
expense of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to the compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Depository participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence or to perform such other acts and make such determinations and
inquiries as are required by, and to do so if and when required by, the terms of
this Indenture, and to examine the same to determine compliance as to form with
the requirements hereof.
SECTION 2.10. Replacement Notes. Holders shall surrender
mutilated Notes to the Trustee. If any mutilated Note is surrendered to the
Trustee, or if the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee shall authenticate, a replacement Note if the
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Trustee's requirements are met, and each such replacement Note shall be an
additional obligation of the Company. If the Trustee or the Company requires,
the Holder must supply an indemnity bond that is sufficient, in the reasonable
judgment of the Trustee and the Company, to protect the Company, the Trustee,
any Agent or any Authenticating Agent from any loss that any of them may suffer
if a Note is replaced. The Company and the Trustee may charge for its reasonable
expenses in replacing a Note.
SECTION 2.11. Outstanding Notes. The Notes outstanding at any
time are all the Notes the Trustee has authenticated except for those it has
canceled, those delivered to it for cancellation, and those described in this
Section 2.11 as not outstanding. If a Note is replaced pursuant to Section 2.10,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that a bona fide purchaser holds the replaced Note. If the entire principal of,
premium, if any, and accrued interest (including Additional Interest, if any) on
any Note is considered paid under Section 4.01, it ceases to be outstanding and
interest on it ceases to accrue. Subject to Section 2.12, a Note does not cease
to be outstanding because the Company, any Guarantor or any of their respective
Affiliates holds such Note.
SECTION 2.12. Treasury Notes. In determining whether the Holders
of the required principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company, any Guarantor or any of their
respective Affiliates shall be considered as though they are not outstanding;
provided, however, that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes for which the Trustee receives an Officers' Certificate stating that such
Notes are so owned shall be so disregarded. The Company shall notify the
Trustee, in writing in the form of an Officers' Certificate, when it, any
Guarantor or any of their respective Affiliates repurchases or otherwise
acquires Notes and of the aggregate principal amount of such Notes so
repurchased or otherwise acquired. Notwithstanding the foregoing, Notes that the
Company or any Affiliate of the Company offers to purchase or acquires pursuant
to an exchange offer, tender offer or otherwise shall not be deemed to be owned
by the Company or any Affiliate of the Company until legal title to such Notes
passes to the Company or such Affiliate, as the case may be.
SECTION 2.13. Temporary Notes. Until definitive Notes are ready
for delivery, the Company may prepare and the Trustee on its behalf shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee on its behalf, upon receipt of a written order of the
Company pursuant to Section 2.02, shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
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SECTION 2.14. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar, any co-registrar, the
Paying Agent, the Company and its Subsidiaries shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange, replacement,
payment (including all Notes called for redemption and all Notes accepted for
payment pursuant to an Offer) or cancellation, and the Trustee shall cancel all
such Notes and shall return all canceled Notes to the Company. Subject to
Section 2.10, the Company may not issue new Notes to replace any Notes that have
been canceled by the Trustee or that have been delivered to the Trustee for
cancellation. If the Company or any Affiliate of the Company acquires any Notes
(other than by redemption pursuant to Section 3.07 or an Offer pursuant to
Section 4.15 or 4.16), such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until such
Notes are delivered to the Trustee for cancellation.
SECTION 2.15. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to Holders on a subsequent special record date, in each case at the
rate provided in the Notes and Section 4.01. The Company shall, with the
Trustee's consent, fix or cause to be fixed each such special record date and
payment date. At least 15 days before the special record date, the Company (or,
at the request of the Company, the Trustee in the name of, and at the expense
of, the Company) shall mail a notice that states the special record date, the
related payment date and the amount of interest to be paid.
SECTION 2.16. Record Date. The record date for purposes of
determining the identity of holders of 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 Section 316(c) of the TIA.
SECTION 2.17. CUSIP and CINS Numbers. A "CUSIP" or "CINS" number
will be printed on the Notes and the Trustee shall use CUSIP or CINS numbers, as
the case may be, in notices of redemption, purchase or exchange as a convenience
to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of such numbers printed
in the notice or on the Notes and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company will promptly notify
the Trustee of any change in the CUSIP or CINS number, as the case may be.
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ARTICLE 3
Redemptions and Offers to Purchase
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.07, it shall furnish to the Trustee, at least 15 but
not more than 30 days before notice of any redemption is to be mailed to Holders
(or such shorter time as may be satisfactory to the Trustee), (x) an Officers'
Certificate stating (i) that the Company has elected to redeem Notes pursuant to
Section 3.07(a) or (b), as the case may be, (ii) the date notice of redemption
is to be mailed to Holders, (iii) the redemption date, (iv) the aggregate
principal amount of Notes to be redeemed, (v) the redemption price for such
Notes and (vi) the amount, if any, of accrued and unpaid interest (including
Additional Interest, if any) on such Notes as of the redemption date and (y) an
Opinion of Counsel that the Company is entitled to redeem the Notes pursuant to
Section 3.07. If the Trustee is not the Registrar, the Company shall,
concurrently with delivery of its notice to the Trustee of a redemption, cause
the Registrar to deliver to the Trustee a certificate (upon which the Trustee
may rely) setting forth the name of, and the aggregate principal amount of the
Notes held by, each Holder.
If the Company is required to offer to purchase Notes pursuant to
Section 4.15 or 4.16, it shall furnish to the Trustee, at least two Business
Days before notice of the Offer is to be mailed to Holders, an Officers'
Certificate setting forth (i) that the Offer is being made pursuant to Section
4.15 or 4.16, as the case may be, (ii) the Purchase Date, (iii) the maximum
principal amount of Notes the Company is offering to purchase pursuant to the
Offer, (iv) the purchase price for such Notes and (v) the amount, if any, of
accrued and unpaid interest (including Additional Interest, if any) on such
Notes as of the Purchase Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased. If
less than all outstanding Notes are to be redeemed or if less than all Notes
tendered pursuant to an Offer are to be accepted for payment, the Trustee shall
select the outstanding Notes to be redeemed or accepted for payment on a pro
rata basis, by lot or by any other method that the Trustee deems fair and
appropriate. If the Company elects to mail notice of a redemption to Holders,
the Trustee shall (i) select the Notes to be redeemed from Notes outstanding not
previously called for redemption in the manner specified by the Trustee and (ii)
notify the Company of the names of each Holder of Notes selected for redemption,
the principal amount of Notes held by each such Holder and the principal amount
of such Holder's Notes that are to be redeemed. If less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee shall select on
or prior to the Purchase Date for such Offer the Notes to be accepted for
payment. The Trustee shall select for redemption or purchase Notes or portions
of Notes in principal amounts at maturity of $1,000 or integral multiples
thereof; except that if
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all of the Notes of a Holder are selected for redemption or purchase, the
aggregate principal amount of the Notes held by such Holder, even if not an
integral multiple of $1,000, may be redeemed or purchased. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called
for redemption or tendered pursuant to an Offer also apply to portions of Notes
called for redemption or tendered pursuant to an Offer. The Trustee shall notify
the Company promptly of the Notes or portions of Notes to be called for
redemption or selected for purchase.
SECTION 3.03. Notice of Redemption. (a) With respect to any
redemption of Notes, a notice of redemption shall identify the Notes or portions
thereof to be redeemed, including CUSIP or CINS numbers, and shall state: (1)
the redemption date; (2) the redemption price for the Notes and the amount, if
any, of unpaid and accrued interest on such Notes as of the date of redemption
and the premium, if any, and Additional Interest, if any, on the Notes as of the
date of redemption; (3) the section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; (4) if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued; (5) the name and address of the Paying Agent; (6) that Notes called for
redemption must be surrendered to the Paying Agent to collect the redemption
price for, and any accrued and unpaid interest (including Additional Interest,
if any) on such Notes as of the date of redemption; (7) that, unless the Company
defaults in making such redemption payment, interest on Notes called for
redemption ceases to accrue on and after the redemption date; and (8) that no
representation is made as to the correctness or accuracy of the CUSIP or CINS
number (as applicable) listed in such notice and printed on the Notes.
(b) The Trustee shall (at the Company's expense and in the
Company's name) give the notice of any redemption setting forth the information
required by paragraph (a) to Holders at least 30 days but not more than 60 days
before the redemption date; provided, however, that the Company shall deliver to
the Trustee, at least 45 days prior to the date of redemption and at least 15
days prior to the date that notice of the redemption is to be mailed to Holders,
an Officers' Certificate that (i) requests the Trustee to give notice of the
redemption to Holders, (ii) sets forth the information to be provided to Holders
in the notice of redemption, as set forth in the preceding paragraph, and (iii)
sets forth the aggregate principal amount of Notes to be redeemed and the
amount, if any, of accrued and unpaid interest (including Additional Interest,
if any) thereon as of the date of redemption. If the Trustee is not the
Registrar, the Company shall, concurrently with any such request, cause the
Registrar to deliver to the Trustee a certificate (upon which the Trustee may
rely) setting forth the name of, the address of, and the aggregate principal
amount of Notes held by, each Holder; provided further that any such Officers'
Certificate may be delivered to the Trustee on a date later than permitted under
this Section 3.03(b) if such later date is acceptable to the Trustee.
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SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
redemption date at the price set forth in the Note.
SECTION 3.05. Deposit of Redemption Price. (a) Prior to 12:00
noon (Eastern Standard Time) on any redemption date, the Company shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the redemption price
of, and the amount, if any, of accrued interest and unpaid interest (including
Additional Interest, if any) on all Notes to be redeemed in immediately
available funds as of the date of redemption. After any redemption date, the
Paying Agent shall promptly return to the Company any money that the Company
deposited with the Paying Agent in excess of the amounts necessary to pay the
redemption price of, and any accrued interest (including Additional Interest, if
any) on all Notes to be redeemed.
(b) If the Company complies with the preceding paragraph,
interest on the Notes to be redeemed will cease to accrue on such Notes on the
applicable redemption date, whether or not such Notes are presented for payment.
If a Note is redeemed on an Interest Payment Date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at
the close of business on the related Record Date, and in all other
circumstances, such interest shall be paid to the Holder of such Note. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest will be paid on the unpaid principal, premium, if any, and unpaid
interest (including Additional Interest, if any) which has accrued to the
redemption date and from the redemption date until such amounts are paid, at the
rate of interest provided in the Notes and Section 4.01.
SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder at the Company's expense a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Redemption Provisions. (a) The Notes will not be
redeemed prior to November 1, 2003, but will be redeemable at the option of the
Company, in whole or in part, at time on or after November 1, 2003, at the
following redemption prices (expressed as percentages of principal amount),
together with accrued and unpaid interest, if any, thereon, to the redemption
date, if redeemed during the twelve-month period beginning November 1:
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OPTIONAL
REDEMPTION
YEAR PRICE
2003.............................. 105.938%
2004.............................. 103.958%
2005.............................. 101.979%
2006 and thereafter............... 100.000%
Notwithstanding the foregoing, at any time prior to November 1,
2001, the Company may redeem at its option up to 35% of the aggregate principal
amount of the Notes originally issued with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 111.875% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the redemption date; provided that (a) at least $130.0 million in aggregate
principal amount of the Notes remains outstanding immediately after the
occurrence of any such redemption and (b) such redemption occurs within 60 days
of the date of the closing of any such Equity Offering.
SECTION 3.08. Mandatory Offers. (a) If required by Section 4.15
or 4.16, the Company will mail to the Trustee (who shall mail to each Holder at
the Company's expense) a notice stating: (1) that an Offer is being made
pursuant to Section 4.15 or 4.16, as the case may be, and describing the
transaction or transactions that constitute the Change of Control or Asset Sale,
as the case may be, and the length of time the Offer shall remain open and the
maximum aggregate principal amount of Notes that the Company is offering to
purchase pursuant to such Offer; (2) the purchase price for the Notes (as set
forth in Section 4.15 or 4.16, as the case may be), the amount of accrued and
unpaid interest and Additional Interest, if any, on such Notes as of the
Purchase Date, and the Purchase Date; (3) that any Note not accepted for payment
will continue to accrue interest; (4) that, unless the Company defaults in
making such payment, any Note accepted for payment pursuant to the Offer will
cease to accrue interest after the relevant Purchase Date; (5) that Holders may
tender all or any portion of the Notes registered in the name of such Holder and
that any portion of a Note tendered must be tendered in a principal amount of
$1,000 or an integral multiple thereof; (6) that Holders electing to tender any
Note or portion thereof will be required to surrender their Note, with the form
therein entitled "Option of Holder to Elect Purchase" completed, or transfer by
book-entry transfer, to the Company, a Depository, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three days
prior to the Purchase Date; (7) that Holders will be entitled to withdraw their
election to tender Notes if the Company, the Depository or the Paying Agent, as
the case may be, receives, not later than the close of business on the last day
of the relevant Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have such Note
purchased; and (8) that Holders
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whose Notes are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered, provided that
only Notes in a principal amount of $1,000 or integral multiples thereof will be
accepted for payment in part.
(b) On the Purchase Date for any Offer, the Company will (i) to
the extent lawful, (x) in the case of an Offer resulting from a Change of
Control, accept for payment all Notes or portions thereof properly tendered
pursuant to such Offer and (y) in the case of an Offer resulting from one or
more Asset Sales, accept for payment, on a pro rata basis to the extent
necessary, the Payment Amount of Notes or portions thereof pursuant to the Net
Proceeds Offer, or if less than the Payment Amount has been tendered, all Notes
tendered, and will deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of Sections 3.08 and 4.16, (ii) deposit with the
Paying Agent by 12:00 noon (Eastern Standard Time) on the Purchase Date U.S.
Legal Tender in immediately available funds sufficient to pay the aggregate
purchase price of all Notes or portions thereof accepted for payment and any
accrued and unpaid interest (including Additional Interest, if any) on such
Notes as of the Purchase Date, and (iii) deliver, or cause to be delivered, to
the Trustee all Notes or portions thereof so accepted together with an Officers'
Certificate setting forth the name of each Holder that tendered Notes and the
principal amount of the Notes, as the case may be, or portions thereof tendered
by each such Holder.
(c) With respect to any Offer, (i) if less than all of the Notes
tendered pursuant to an Offer are to be accepted for payment by the Company for
any reason, the Trustee shall select on or prior to the Purchase Date the Notes
or portions thereof to be accepted for payment pursuant to Section 3.02, and
(ii) if the Company deposits with the Paying Agent on the Purchase Date an
amount of U.S. Legal Tender sufficient to purchase all Notes accepted for
payment, interest shall cease to accrue on such Notes on the Purchase Date;
provided, however, that if the Company fails to deposit an amount of U.S. Legal
Tender sufficient to purchase all Notes accepted for payment, the deposited
funds shall be used to purchase on a pro rata basis all Notes accepted for
payment and interest shall continue to accrue, as the case may be, on all Notes
not purchased.
(d) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the Change of Control Purchase Price or Offered Price, as the
case may be, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Company shall
issue and the Trustee shall authenticate and mail to each such Holder a new Note
equal in principal amount to the unpurchased portion of the tendered Note.
(e) The Company will (i) publicly announce the results of the
Offer to Holders on or as soon as practicable after the Purchase Date, and (ii)
comply with the applicable
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tender offer rules, including the requirements of Rule 14e-1 under the Exchange
Act and any other applicable laws and regulations in connection with the
purchase of Notes pursuant to any Offer.
(f) If any of this Section 3.08, Section 4.15 or Section 4.16
conflict with duties imposed upon the Company or the Guarantors by virtue of any
applicable laws or regulations, the Company or such Guarantor, as the case may
be, shall comply with such applicable laws or regulations and will not be deemed
to have breached its obligations under this Indenture.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes. Subject to the provisions of
Article 10, the Company shall pay the principal of, and premium, if any, and
interest (including Additional Interest, if any) on the Notes on the dates and
in the manner provided in the Notes. Holders must surrender their Notes to the
Paying Agent to collect principal payments. The Notes will be payable as to
principal, premium, if any, and interest (including Additional Interest), if
any, at the office or agency of the Company maintained for such purpose within
the City and State of New York or, at the option of the Company, by wire
transfer of immediately available funds or, in the case of Physical Notes only,
by mailing a check to the registered address of the Holder.
So long as the Global Note Holder is the registered owner of any
Notes, the Global Note Holder will be considered the sole holder of outstanding
Notes represented by such Global Notes under this Indenture. Payments in respect
of the principal of, premium, if any, and interest (including Additional
Interest), if any, on any Notes registered in the name of the Global Note Holder
on the applicable Record Date will be payable by the Trustee to or at the
direction of such Global Note Holder in its capacity as the registered holder
under this Indenture. None of the Company, the Guarantors or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of Notes by the Depository, or for maintaining,
supervising or reviewing any records of the Depository relating to such Notes.
Principal, premium or interest (including Additional Interest, if
any) shall be considered paid on the date due if, by 12:00 noon (Eastern
Standard Time) on the Business Day immediately preceding such date, the Company
has deposited with the Paying Agent U.S. Legal Tender in immediately available
funds designated for and sufficient to pay such principal, premium or interest
(including Additional Interest, if any); provided, however, that principal,
premium or interest (including Additional Interest, if any) shall not be
considered
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paid within the meaning of this Section 4.01 if U.S. Legal Tender intended to
pay such principal, premium or interest (including Additional Interest, if any)
is held by the Paying Agent for the benefit of holders of Senior Indebtedness of
the Company pursuant to the provisions of Article 10. The Paying Agent shall
return to the Company, no later than five days following the date of payment,
any money that exceeds the amount then due and payable on the Notes.
SECTION 4.02. Reports. Whether or not required by the rules and
regulations of the Securities and Exchange Commission (the "COMMISSION"), so
long as any Notes are outstanding, each of the Company and Pro-Fac will file
with the Commission, to the extent such filings are accepted by the Commission,
and will furnish (within 15 days after such filing) to the Trustee and the
Holders of Notes all quarterly and annual reports and other information,
documents and reports that would be required to be filed with the Commission
pursuant to Section 13 of the Exchange Act if the Company or Pro-Fac, as the
case may be, were required to file under such section. In addition, each of the
Company and Pro-Fac will make such information available to prospective
purchasers of the Notes, securities analysts and broker-dealers who request it
in writing. Each of the Company and Pro-Fac has agreed that, for so long as any
Notes remain outstanding, it will furnish to the Holders and beneficial holders
of Notes and to prospective purchasers of Notes designated by the holders of
Transfer Restricted Securities (as defined in the Registration Rights Agreement)
and to broker dealers, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. On and after
consummation of the Pro-Fac Merger, only Pro-Fac, as successor corporation to
the Company, shall be required to comply with this Section 4.02.
SECTION 4.03. Compliance Certificate. The Company shall deliver
to the Trustee, within 90 days after the end of each fiscal year of the Company,
an Officers' Certificate stating that (i) a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year without regard to
any grace period has been made to determine whether the Company has kept,
observed, performed and fulfilled all of its obligations under this Indenture
and the Notes, (ii) such review was supervised by the Officers of the Company
signing such certificate, and (iii) that to the best knowledge of each Officer
signing such certificate, (a) 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 occurred,
describing all such Defaults or Events of Default of which each such Officer may
have knowledge and what action the Company has taken or proposes to take with
respect thereto), and (b) no event has occurred and remains in existence by
reason of which payments on account of the principal of, or premium, if any, or
interest (including Additional Interest, if any) on the Notes are 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.
So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to
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Section 4.02 shall be accompanied by a written statement of the Company's
independent public accountants (which 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 Sections 4.01, 4.05,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 or Article 5
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.
The Company will, so long as any of the Notes are outstanding,
deliver to the Trustee, promptly after any Officer of the Company becomes 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 4.04. Stay, Extension and Usury Laws. Each of the Company
and the Guarantors covenant (to the extent that they may lawfully do so) that
they will 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 might affect the covenants
or the performance of their obligations under this Indenture and the Notes and
Note Guarantees; and each of the Company and the Guarantors (to the extent they
may lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and covenant that they will not, by resort to any such law, hinder, delay
or impede the execution of any power granted to the Trustee pursuant to this
Indenture, but will suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.05. Limitation on Restricted Payments. The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment (except as permitted below) if at the
time of such Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof;
(ii) the Company would be unable to meet the Coverage Ratio
Incurrence Condition; or
(iii) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments (except as expressly
provided in the second following paragraph) made on or after the first
day of the last completed fiscal quarter of the Company ending
immediately prior to the Issue Date, exceeds the sum of (A) 50% of the
Company's Consolidated Net Income (taken as one accounting period) from
the first day of the last completed fiscal quarter of the Company ending
immediately prior to the Issue Date to the end of the Company's most
recently ended fiscal
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quarter for which financial statements are available at the time of such
Restricted Payment (or, if such aggregate Consolidated Net Income shall
be a deficit, minus 100% of such aggregate deficit) plus (B) the net
cash proceeds from the issuance and sale (other than to a Subsidiary of
the Company or Pro-Fac) after the Issue Date of (1) the Company's
Capital Stock that is not Disqualified Capital Stock (excluding amounts
contributed to the Company pursuant to clause (E) of this paragraph and
excluding Capital Stock purchased with the proceeds of loans from the
Company or any of its Subsidiaries) or (2) debt securities of the
Company that have been converted into the Company's Capital Stock that
is not Disqualified Capital Stock and that is not held by a Subsidiary
of the Company, plus (C) to the extent that any Restricted Investment
that was made after the Issue Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (x) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (y) the initial amount of such Restricted
Investment plus (D) the amount of Restricted Investment outstanding in
an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary of the Company in accordance with the
definition of "Unrestricted Subsidiary," plus (E) 40% of the aggregate
contributions by Pro-Fac to the Company pursuant to Section 4.18(a)
subsequent to the Issue Date but prior to the consummation of the
Pro-Fac Merger, plus (F) $7.5 million.
The foregoing provisions of clauses (ii) and (iii) of the
immediately preceding paragraph will not prohibit (1) the payment of any
dividend by the Company or any Restricted Subsidiary 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; (2) the redemption,
repurchase, retirement or other acquisition of any Capital Stock of the Company
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company or Pro-Fac) of other Capital Stock of
the Company (other than any Disqualified Capital Stock); (3) the defeasance,
redemption, repurchase or other retirement of Subordinated Indebtedness in
exchange for, or out of the proceeds of, the substantially concurrent issue and
sale of Capital Stock of the Company (other than (x) Disqualified Capital Stock,
(y) Capital Stock sold to a Subsidiary of the Company or Pro-Fac and (z) Capital
Stock purchased with the proceeds of loans from the Company or any of its
Subsidiaries); (4) the payment of amounts prior to consummation of the Pro-Fac
Merger required to fund Pro-Fac's reasonable operating expenses, not in excess
of $250,000, as adjusted to reflect changes in the Consumer Price Index between
the Issue Date and the date of any such payment, in any fiscal year; (5) (x) the
payments of dividends or distributions to Pro-Fac solely in amounts and at the
times necessary to permit Pro-Fac, or (y) any payments to members of Pro-Fac or
and after the consummation of the Pro-Fac Merger solely in amounts and at the
times necessary, in each case to purchase, redeem, acquire, cancel or otherwise
retire for value Capital Stock of Pro-Fac (i) held by officers, directors or
employees or former officers, directors or employees (or their transferees,
estates or beneficiaries under their estates), or a trust established for the
benefit of
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any of the foregoing, of Pro-Fac, the Company or its Subsidiaries,
upon death, disability, retirement, severance or termination of employment or
service or pursuant to any agreement under which such Capital Stock or related
rights were issued or (ii) held by members or former members of Pro-Fac, upon
the departure of such Persons as members of Pro-Fac or upon the discontinuance
by any such Person of one or more crops; provided that the amount of such
payments under this clause (5) does not exceed in the aggregate $2.0 million in
any fiscal year; or (6) Restricted Investments the amount of which, together
with the amount of all other Restricted Investments made pursuant to this clause
(6) after the Issue Date, does not exceed $15.0 million.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payments referred to in clauses (2) and (3)
thereof, and, to the extent deducted in determining Consolidated Net Income in
any period, the Restricted Payments referred to in clause (5) thereof) shall be
included once in calculating whether the conditions of clause (iii) of the
second preceding paragraph have been met with respect to any subsequent
Restricted Payments. For purposes of determining compliance with this Section
4.05, in the event that a transaction meets the criteria of more than one of the
types of Restricted Payments described in the clauses of the immediately
preceding paragraph or of the exceptions in of the definition of "Restricted
Payment," the Company, in its sole discretion, shall classify such transaction
and only be required to include the amount and type of such transaction in one
of such clauses. If an issuance of Capital Stock of the Company is applied to
make a Restricted Payment pursuant to clause (2) or (3) above, then, in
calculating whether the conditions of clause (iii) of the second preceding
paragraph have been met with respect to any subsequent Restricted Payments, the
proceeds of any such issuance shall be included under such clause (iii) only to
the extent such proceeds are not applied as so described in this sentence.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.05 were computed, which calculations
shall be based upon the Company's latest available financial statements.
SECTION 4.06. Corporate Existence. Subject to Section 4.16 and
Article 5, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each of its
Subsidiaries and the rights (charter and statutory), licenses and franchises of
the Company and each of its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any Subsidiary, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries
-49-
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.07. Limitations on Additional Indebtedness. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, incur any Indebtedness (including without limitation
Acquired Indebtedness); provided that (i) the Company and its Restricted
Subsidiaries may incur Permitted Indebtedness and (ii) if no Default or Event of
Default shall have occurred and be continuing at the time of or as a consequence
of the incurrence of any such Indebtedness, the Company may incur additional
Indebtedness if, after giving effect thereto, the Company's Consolidated
Interest Coverage Ratio on the date thereof would be at least 2.0 to 1.0,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness, and the application of the net proceeds therefrom, had occurred at
the beginning of the four-quarter period used to calculate the Company's
Consolidated Interest Coverage Ratio.
(b) The Company may make demand loans to Pro-Fac for working
capital purposes in amounts not exceeding $40.0 million at any time outstanding,
each such loan to bear interest at a rate equal to the rate in effect on the
date of such loan under the Revolving Loan Facility. The loan balance must be
reduced to zero for a period of not less than 15 consecutive days in each fiscal
year. Except for the foregoing provision and except for (x) Pro-Fac's Note
Guarantee and (y) Pro-Fac's Guarantee of the Obligations under the New Credit
Facility, as long as Pro-Fac has the right to borrow under the Pro-Fac Marketing
Agreement Pro-Fac shall not incur any other Indebtedness. This paragraph (b)
shall not apply on and after the consummation of the Pro-Fac Merger.
SECTION 4.08. Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries. The Company will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell any shares of its Capital Stock
(including options, warrants or other rights to purchase shares of such Capital
Stock) except (i) to the Company or a Wholly-Owned Restricted Subsidiary, (ii)
if, immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary or (iii) to the
extent such shares represent directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Wholly-Owned
Restricted Subsidiary. The proceeds of any sale of Capital Stock permitted
hereunder and referred to in clauses (ii) and (iii) above will be treated as Net
Available Proceeds and must be applied in a manner consistent with Section 4.16.
SECTION 4.09. Limitations on Layering Debt. Neither the Company
nor any Guarantor will incur any Indebtedness that is subordinate or junior in
right of payment to any Senior Indebtedness of the Company or such Guarantor, as
the case may be, unless such Indebtedness by its terms is pari passu with, or
subordinated to, the Notes or the Note Guarantee of such Guarantor, as the case
may be.
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SECTION 4.10. Limitations on Transactions with Affiliates. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, in one transaction or a series of related transactions,
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
(i) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction (or series of related
transactions) involving Pro-Fac (including, without limitation, any amendment to
or waiver under the Pro-Fac Marketing Agreement and any agreement for the
purchase of crops entered into pursuant to the Pro-Fac Marketing Agreement)
prior to consummation of the Pro-Fac Merger or involving aggregate payments in
excess of $1.0 million, an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and which sets forth and
authenticates a resolution that has been adopted by a vote of a majority of the
Disinterested Directors approving such Affiliate Transaction and (b) with
respect to any Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $5.0 million (other than any Affiliate
Transaction (for series of related transactions) occurring prior to consummation
of the Pro-Fac Merger and relating to the Pro-Fac Marketing Agreement or any
agreement for the purchase of crops entered into pursuant to the Pro-Fac
Marketing Agreement), the Officers' Certificate described in the preceding
clause (a) and an opinion as to the fairness to the Company or such Subsidiary
from a financial point of view of such Affiliate Transaction (or series of
related transactions) issued by an Independent Financial Advisor; provided,
however, that the following shall not be deemed to be Affiliate Transactions:
(i) transactions exclusively between or among (1) the Company and one or more
Restricted Subsidiaries or (2) Restricted Subsidiaries, provided, in each case,
that no Affiliate of the Company (other than another Restricted Subsidiary) owns
Capital Stock of any such Restricted Subsidiary; (ii) transactions between the
Company or any Restricted Subsidiary and any qualified employee stock ownership
plan established for the benefit of the Company's employees, or the
establishment or maintenance of any such plan; (iii) reasonable director,
officer and employee compensation and other benefit and indemnification
arrangements entered into in the ordinary course of business and consistent with
past practice; (iv) transactions permitted by Section 4.05 or excluded from the
definition of "Restricted Payments;" (v) the pledge of Capital Stock of
Unrestricted Subsidiaries to support the Indebtedness thereof; (vi) transactions
between the Company or any Restricted Subsidiary and any Affiliate of the
Company or such Restricted Subsidiary that is a joint venture, provided that no
direct or indirect holder of an equity interest in such joint venture (other
than the Company or a Restricted Subsidiary) is an Affiliate of the Company or
such Restricted Subsidiary; and (vii) except as set forth in clause (a) above,
the Pro-Fac Marketing Agreement and any transaction effected pursuant thereto.
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SECTION 4.11. Limitations on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, incur or
permit to exist any Lien of any nature whatsoever on any property of the Company
or any Restricted Subsidiary (including Capital Stock of a Restricted
Subsidiary), or any proceeds, income or profit therefrom, whether owned at the
Issue Date or thereafter acquired, which secures Indebtedness that is not Senior
Indebtedness unless contemporaneously therewith effective provision is made to
secure the Notes equally and ratably with (or if such Lien secures Indebtedness
that is subordinated to the Notes, prior to) such Indebtedness for so long as
such Indebtedness is secured by a Lien.
The foregoing restrictions shall not apply to (i) Liens existing
on the Issue Date securing Indebtedness outstanding on the Issue Date; (ii)
Liens in favor of the Company; (iii) Liens to secure Non-Recourse Purchase Money
Indebtedness; (iv) Liens securing Acquired Indebtedness permitted to be incurred
under this Indenture, provided that the Liens do not extend to property or
assets not subject to such Lien at the time of acquisition (other than
improvements thereon); (v) Liens on property of a Person existing at the time
such Person is acquired or merged with or into or consolidated with the Company
or any such Restricted Subsidiary (and not created in anticipation or
contemplation thereof); or (vi) Liens to secure Refinancing Indebtedness of
Indebtedness secured by Liens referred to in the foregoing clauses (iv) and (v),
provided that in each case such Liens do not extend to any additional property
or assets (other than improvements thereon).
SECTION 4.12. Taxes. The Company shall, and shall cause each of
its Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies the failure of which to pay could reasonably be expected to
result in a material adverse effect on the condition (financial or otherwise),
business or results of operations of the Company and its Subsidiaries taken as a
whole, except for those taxes contested in good faith by appropriate proceedings
properly initiated and diligently conducted and for which adequate reserves, to
the extent required under GAAP, have been taken.
SECTION 4.13. Limitations on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any of its
Restricted Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any Payment Restriction with respect to any of its Restricted
Subsidiaries, except for (a) any such Payment Restriction in effect on the Issue
Date under the New Credit Facility or any similar Payment Restriction under any
similar credit facility, or any amendment, restatement, renewal, replacement or
refinancing of any of the foregoing, provided that such similar Payment
Restrictions are not, taken as a whole, materially more restrictive than the
Payment Restrictions in effect on the Issue Date under the New Credit Facility;
(b) any such Payment Restriction under any agreement evidencing any Acquired
Indebtedness that was permitted to be incurred pursuant to the Indenture in
effect at the time of such incurrence and not created in contemplation of such
event, provided that such Payment Restriction is not extended to apply to any
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of the assets of the entities not previously subject thereto; (c) any such
Payment Restriction arising in connection with Refinancing Indebtedness;
provided that any such Payment Restrictions that arise under such Refinancing
Indebtedness are not, taken as a whole, materially more restrictive than those
under the agreement creating or evidencing the Indebtedness being refunded or
refinanced; (d) any such restriction by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases,
licenses and similar agreements entered into in the ordinary course of business;
and (e) Payment Restrictions arising under applicable law.
SECTION 4.14. Maintenance of Offices or Agencies. The Company
will maintain an office or an agency in the Borough of Manhattan in the City of
New York (which may be an office of any Agent) where Notes may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company and the Guarantors in respect
of the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of any change in the location of such office or
agency. If at any time the Company 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.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
SECTION 4.15. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder of the Notes will have the right to require that
the Company repurchase such Holder's Notes, in whole or in part in integral
multiples of $1,000 in principal amount, for a cash purchase price (the "CHANGE
OF CONTROL PURCHASE PRICE") equal to 101% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the date of
repurchase, all in accordance with paragraph (b) below.
(b) Within 30 days following any Change of Control, the Company
will mail to the Trustee (who shall mail to each holder at the Company's
expense) a notice (i) describing the transaction or transactions that constitute
the Change of Control, (ii) offering to repurchase, pursuant to the procedures
required by Section 3.08 and described in such notice (a "CHANGE OF CONTROL
OFFER"), on a date specified in such notice (which shall be a business day not
earlier than 30 days or later than 60 days from the date such notice is mailed)
and for the Change of Control Purchase Price, all Notes properly tendered by
such Holder pursuant to
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such offer to purchase for the Change of Control Purchase Price and (iii)
describing the procedures that holders must follow to accept the Change of
Control Offer.
(c) The Change of Control Offer will remain open for a period of
at least 20 Business Days (or for such longer period as is required by law)
following its commencement (the "CHANGE OF CONTROL OFFER PERIOD"). No later than
five Business Days after the termination of the change of Control Offer Period
(the "CHANGE OF CONTROL PURCHASE DATE"), the Company will purchase all Notes
tendered in response to the Change of Control Offer. Payment for any Notes so
purchased will be made in the same manner as interest payments are made.
(d) Notwithstanding the foregoing, the Company's obligation to
make a Change of Control Offer will be satisfied if a third party makes the
Change of Control Offer in the manner and at the times and otherwise in
compliance with the requirements applicable to a Change of Control Offer made by
the Company in this Indenture and purchases all Notes properly tendered and not
withdrawn under such Change of Control Offer.
(e) The Company will comply with the applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act and any
other applicable laws and regulations in connection with the purchase of Notes
pursuant to a Change of Control Offer.
SECTION 4.16. Limitations on Asset Sales. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, consummate any
Asset Sale unless (i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets included in such Asset Sale (evidenced by the delivery by
the Company to the Trustee of an Officers' Certificate certifying that such
Asset Sale complies with this clause (i)), (ii) immediately after giving effect
to such Asset Sale, no Default or Event of Default shall have occurred and be
continuing, and (iii) at least 80% of the consideration received by the Company
or such Restricted Subsidiary therefor is in the form of cash paid at the
closing thereof. The amount (without duplication) of any (x) Indebtedness (other
than Subordinated Indebtedness) of the Company or such Restricted Subsidiary
that is expressly assumed by the transferee in such Asset Sale and with respect
to which the Company or such Restricted Subsidiary, as the case may be, is
unconditionally released by the holder of such Indebtedness, and (y) any Cash
Equivalents, or other notes, securities or items of property received from such
transferee that are promptly (but in any event within 15 days) converted by the
Company or such Restricted Subsidiary to cash (to the extent of the cash
actually so received), shall be deemed to be cash for purposes of clause (iii)
of the preceding sentence and, in the case of clause (x) above, shall also be
deemed to constitute a repayment of, and a permanent reduction in, the amount of
such Indebtedness for purposes of the following paragraph (b). If at any time
any non-cash consideration received by the Company or any Restricted Subsidiary
of the Company, as the case may be, in connection with any Asset
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Sale is converted into or sold or otherwise disposed of for cash (other than
interest received with respect to any such non-cash consideration), then the
date of such conversion or disposition shall be deemed to constitute the date of
an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied
in accordance with this Section 4.16. A transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary will not be deemed to be an Asset Sale, and a transfer of
assets that is excluded from the definition of "Restricted Payment" or that
constitutes a Restricted Investment and that is permitted under Section 4.05
will not be deemed to be an Asset Sale.
(b) If the Company or any Restricted Subsidiary engages in an
Asset Sale, the Company or any Restricted Subsidiary shall, no later than 270
days after such Asset Sale (i) apply all or any of the Net Available Proceeds
therefrom to repay amounts outstanding under the New Credit Facility or any
other Senior Indebtedness; provided, in each case, that the related loan
commitment (if any) of any Indebtedness constituting revolving credit debt is
thereby permanently reduced by the amount of any such revolving credit debt so
repaid; and/or (ii) invest all or any part of the Net Available Proceeds thereof
in the purchase of fixed assets to be used by the Company and its Restricted
Subsidiaries in a Related Business (together with any short-term assets
incidental thereto), or the making of a Related Business Investment. The amount
of such Net Available Proceeds not applied or invested as provided in this
paragraph will constitute "EXCESS PROCEEDS."
(c) When the aggregate amount of Excess Proceeds equals or
exceeds $10.0 million, the Company will be required to make an offer to
purchase, from all holders of the Notes, an aggregate principal amount of Notes
equal to the amount of such Excess Proceeds as follows:
(i) The Company will make an offer to purchase (a "NET PROCEEDS
OFFER") from all holders of the Notes in accordance with the procedures
set forth in Section 3.08 the maximum principal amount (expressed as a
multiple of $1,000) of Notes that may be purchased out of the amount
(the "PAYMENT AMOUNT") of such Excess Proceeds.
(ii) The offer price for the Notes will be payable in cash in an
amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest and
Additional Interest, if any, to the date such Net Proceeds Offer is
consummated (the "OFFERED PRICE"), in accordance with the procedures set
forth in Section 3.08. To the extent that the aggregate Offered Price of
Notes tendered pursuant to a Net Proceeds Offer is less than the Payment
Amount relating thereto (such shortfall constituting a "NET PROCEEDS
DEFICIENCY"), the Company may use such Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the
limitations of Section 4.05.
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(iii) If the aggregate Offered Price of Notes validly tendered and
not withdrawn by holders thereof exceeds the Payment Amount, Notes to be
purchased will be selected on a pro rata basis (with such adjustments as
may be appropriate so that only Notes in denominations of $1,000, or
integral multiples thereof, will be purchased).
(iv) The Net Proceeds Offer shall remain open for a period of at
least 20 Business Days (or for such longer period as is required by law)
following its commencement (the "NET PROCEEDS OFFER PERIOD"). No later
than five Business Days after the termination of the Offer Period (the
"NET PROCEEDS PURCHASE DATE"), the Company will purchase the principal
amount of Notes required to be purchased pursuant to this Section 4.16.
Payment for any Notes so purchased will be made in the same manner as
interest payments are made.
(v) Upon completion of such Net Proceeds Offer in accordance with
the foregoing provisions, the amount of Excess Proceeds in respect of
such Net Proceeds Offer shall be deemed to be zero.
(d) Notwithstanding the foregoing, in the event that any other
Indebtedness of the Company which ranks pari passu with the Notes (the "OTHER
Indebtedness") requires an offer to purchase to be made to repurchase such Other
Indebtedness upon the consummation of an Asset Sale, the Company may apply the
Excess Proceeds otherwise required to be applied to a Net Proceeds Offer to
offer to purchase such Other Indebtedness and to a Net Proceeds Offer so long as
the amount of such Excess Proceeds applied to purchase the Notes is not less
than the Note Portion of Excess Proceeds. With respect to any Excess Proceeds,
the Company shall make the Net Proceeds Offer in respect thereof at the same
time as the analogous offer to purchase is made pursuant to any Other
Indebtedness and the purchase date in respect of the Net Proceeds Offer shall be
the same as the purchase date in respect of the offer to purchase pursuant to
such Other Indebtedness.
For purposes of this Section 4.16, "NOTE PORTION OF EXCESS
PROCEEDS," in respect of a Net Proceeds Offer, means (1) if no Other
Indebtedness is concurrently being offered to be purchased, the amount of the
Excess Proceeds in respect of such Net Proceeds Offer and (2) if Other
Indebtedness is concurrently being offered to be purchased, an amount equal to
the product of (x) the Excess Proceeds in respect of such Net Proceeds Offer and
(y) a fraction the numerator of which is the principal amount of all Notes
tendered pursuant to such Net Proceeds Offer (the "NOTE AMOUNT") and the
denominator of which is the sum of the Note Amount and the lesser of the
aggregate principal face amount or accreted value as of the relevant purchase
date of all Other Indebtedness tendered pursuant to a concurrent offer to
purchase such Other Indebtedness made at the time of such Net Proceeds Offer.
(e) The Company will not permit any Subsidiary to enter into or
suffer to exist any agreement that would place any restriction of any kind
(other than pursuant to law or
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regulation) on the ability of the Company to make a Net Proceeds Offer following
any Asset Sale.
(f) The Company will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
laws and regulations in connection with the purchase of Notes pursuant to a Net
Proceeds Offer.
SECTION 4.17. Additional Note Guarantees. (a) If the Company or
any of its Subsidiaries shall acquire or create another Subsidiary (other than
(x) any Foreign Subsidiary so long as such Foreign Subsidiary is not a guarantor
of any Senior Indebtedness of the Company or (y) a Subsidiary that has been
designated as an Unrestricted Subsidiary or (z) an Immaterial Subsidiary), then
within 10 days after acquiring or creating such Subsidiary, the Company shall
comply with paragraph (b) of this Section 4.17.
(b) Any Person required by paragraph (a) of this Section 4.17 to
become, or that is at the option of the Company becoming, a Guarantor shall
execute and deliver to the Trustee a supplemental indenture in form and
substance satisfactory to the Trustee, which subjects such Person to the
provisions of this Indenture as a Guarantor pursuant to the terms of Article 11,
and provide an Opinion of Counsel to the effect that such supplemental indenture
has been duly authorized and executed by such Person and constitutes the legal,
valid and binding obligation of such Person (subject to customary assumptions
and exceptions).
SECTION 4.18. Payments Pursuant to the Pro-Fac Marketing
Agreement; Reinvestments by Pro-Fac; Borrowings by Pro-Fac. (a) As promptly as
practicable, and in any event within ten Business Days, after receipt from the
Company of any payment made in excess of the Commercial Market Value for crops
and other services pursuant to the Pro-Fac Marketing Agreement, Pro-Fac will
invest in cash as common equity interests (other than Disqualified Capital
Stock) in the Company an amount equal to 70% of such excess. Without the consent
of the Holders of at least 75% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes), the Company will not: (a) amend the calculation of amounts
payable to Pro-Fac under the Pro-Fac Marketing Agreement in a manner which would
increase the payments made to Pro-Fac, (b) amend the Pro-Fac Marketing Agreement
to require that Affiliate Transactions involving Pro-Fac be approved by less
than a majority of the Disinterested Directors or (c) amend this Section 4.18(a)
or the definition of "Commercial Market Value" in this Indenture.
(b) Notwithstanding the foregoing, the preceding paragraph (a)
shall not apply on and after the consummation of the Pro-Fac Merger. On and
after the consummation of the Pro-Fac Merger, any payment to any member of
Pro-Fac in cash or property (other than Capital Stock) for crops in excess of
Commercial Market Value shall be deemed to be a Restricted Payment under Section
4.05. In addition, Pro-Fac will cause its certificate of incorporation and/or
by-laws to be amended no later than the consummation of the Pro-Fac Merger to
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require (i) that there shall be at least two Disinterested Directors on the
Board of Directors of Pro-Fac at all times, (ii) the formation and maintenance
of a committee of the Board of Directors of Pro-Fac to recommend Commercial
Market Value, which committee shall include at least two Disinterested Directors
at all times, (iii) approval by a majority of the Disinterested Directors of the
annual profit plan of Pro-Fac (including the raw product section of the profit
plan) and the final determination of Commercial Market Value, and (iv)
precluding the further amendment of the certificate of incorporation and by-laws
of Pro-Fac concerning (i), (ii), and (iii) above without the consent of the
Holders of at least 75% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes). Without the consent of the Holders of at least 75% in principal
amount of the Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for the Notes), the Company and Pro-Fac
will not amend this Section 4.18(b) or the definition of "Commercial Market
Value" in this Indenture.
SECTION 4.19. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law. (a) The Company shall, and shall cause each of its
Subsidiaries to, at all times cause all properties used in the conduct of its
business to be maintained and kept in good condition, repair and working order
(reasonably wear and tear excepted) and supplied with all necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, in each case, in a manner customary for
companies similarly situated.
(b) The Company shall and shall cause each of its Subsidiaries to
maintain insurance with insurance companies or association with a rating of "A-"
or better, as established by Best's Rating Guide (or an equivalent rating with
such other publication of a similar nature as shall be in current use) in such
amounts and covering such risks as are usually and customarily carried with
respect to companies similarly situated and similar facilities according to
their respective locations.
(c) The Company shall and shall cause each of its Subsidiaries to
keep proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of the Company
and each Subsidiary of the Company, in accordance with GAAP consistently applied
to the Company and its Subsidiaries taken as a whole.
(d) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, condition (financial or otherwise), results of operations
or properties of the Company and its Subsidiaries taken as a whole.
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(e) The Company and each Guarantor shall deliver to the Trustee
any information reasonably requested by the Trustee in connection with
compliance by the Trustee or the Company with any of their respective duties or
obligations hereunder or under the TIA.
(f) Upon the request of the Trustee, the Company and each
Guarantor shall execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out effectively the
purposes of this Indenture.
(g) The Company shall not and shall not permit any of its
Subsidiaries to enter into any agreement or instrument that by its terms
expressly prohibits the Company from making any payments on or in respect of the
Notes in accordance with the terms thereof and of this Indenture.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Limitations on Mergers and Certain Other
Transactions. (a) The Company will not, in a single transaction or a series of
related transactions, (i) consolidate or merge with or into (other than a merger
with a Wholly-Owned Restricted Subsidiary solely for the purpose of changing the
Company's jurisdiction of incorporation to another State of the United States;
provided that clauses (a) and (d) below are complied with), or sell, lease,
transfer, convey or otherwise dispose of or assign all or substantially all of
the assets of the Company or the Company and its Subsidiaries (taken as a
whole), or permit any of its Restricted Subsidiaries to do so if such
transaction would result in the transfer of all or substantially all of the
assets of the Company and its Subsidiaries (taken as a whole), or assign any of
its obligations under the Notes and this Indenture, to any Person or (ii) adopt
a Plan of Liquidation unless, in either case: (a) the Person formed by or
surviving such consolidation or merger (if other than the Company) or to which
such sale, lease, conveyance or other disposition or assignment shall be made
(or, in the case of a Plan of Liquidation, any Person to which assets are
transferred) (collectively, the "SUCCESSOR"), is a corporation or a cooperative
corporation organized and existing under the laws of any State of the United
States of America or the District of Columbia, and the Successor assumes by
supplemental indenture in a form satisfactory to the Trustee all of the
obligations of the Company under the Notes and this Indenture; (b) immediately
prior to and immediately after giving effect to such transaction and the
assumption of the obligations as set forth in clause (a) above and the
incurrence of any Indebtedness to be incurred in connection therewith, no
Default or Event of
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Default shall have occurred and be continuing; provided, however, that in the
case of the Pro-Fac Merger, the foregoing clause (b) shall be deemed to be
satisfied if immediately after giving effect to the Pro-Fac Merger and the
assumption of the obligations set forth in clause (a) above and the incurrence
of any Indebtedness to be incurred in connection therewith, no Default or Event
of Default shall have occurred and be continuing; and (c) immediately after and
giving effect to such transaction and the assumption of the obligations set
forth in clause (a) above and the incurrence of any Indebtedness to be incurred
in connection therewith, and the use of any net proceeds therefrom on a pro
forma basis, (x) in the case of the Pro-Fac Merger only, the Consolidated
Coverage Ratio shall be at least equal to or greater than the Consolidated
Coverage Ratio immediately prior to the consummation of the Pro-Fac Merger and
the assumption of the obligations set forth in clause (a) above and the
incurrence of any Indebtedness to be incurred in connection therewith, and (y)
in the case of any other such transaction, the Company or the Successor, as the
case may be, could meet the Coverage Ratio Incurrence Condition; and (d) each
Guarantor, unless it is the other party to the transactions described above,
shall have by amendment to its Note Guarantee confirmed that its Note Guarantee
shall apply to the obligations of the Company or the Successor under the Notes
and this Indenture. For purposes of this Section 5.01, any Indebtedness of the
Successor which was not Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in connection with such
transaction.
(b) No Guarantor (other than a Subsidiary Guarantor whose Note
Guarantee is to be released in accordance with Section 11.08) may consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person or entity whether or not affiliated with such Guarantor
unless:
(i) the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) assumes all the obligations of
such Guarantor under the Note Guarantee of such Guarantor and this
Indenture pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee under the Notes and this
Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(iii) immediately after giving effect to any such transaction
involving a Subsidiary Guarantor, the Coverage Ratio Incurrence
Condition would be met;
provided, however, that the foregoing paragraph (b) of this Section 5.01 shall
not apply to the Pro-Fac Merger (the Pro-Fac Merger being governed by Section
5.01(a)).
SECTION 5.02. Successor Corporation Substituted. In the event of
any transaction described in and complying with the conditions listed in Section
5.01 in which the Company or a Guarantor, as the case may be, is not the
surviving Person, such surviving Person shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or such Guarantor,
as the case may be, and the Company shall be discharged from
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its Obligations under this Indenture and the Notes or such Guarantor shall be
discharged from its Obligations under this Indenture and its Note Guarantee, as
the case may be.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. (a) Each of the following
constitutes an event of default (an "EVENT OF DEFAULT"):
(i) failure by the Company to pay interest or Additional Interest
on any of the Notes when it becomes due and payable and the continuance
of any such failure for 30 days (whether or not such payment shall be
prohibited by Article 10);
(ii) failure by the Company to pay the principal or premium, if
any, on any of the Notes when it becomes due and payable, whether at
stated maturity, upon redemption (including, without limitation, the
failure to make a payment to purchase Notes tendered pursuant to a
Change of Control Offer or Net Proceeds Offer), upon acceleration or
otherwise (whether or not such payment shall be prohibited by Article
10);
(iii) failure by the Company to comply with any of its agreements
or covenants described above under Article 5 or in respect of its
obligations to make a Change of Control Offer or a Net Proceeds Offer
described in Sections 4.15 and 4.16, respectively, or failure by Pro-Fac
to comply with the provisions of Section 4.07(b) or 4.18;
(iv) failure by the Company or any Guarantor to comply with any
other covenant in this Indenture and continuance of such failure for 60
days after notice of such failure has been given to the Company by the
Trustee or by the holders of at least 25% of the aggregate principal
amount of the Notes then outstanding;
(v) failure by either the Company or any of its Restricted
Subsidiaries to make any principal payment at final maturity after the
expiration of any applicable grace period in respect of any Indebtedness
of the Company or any of such Restricted Subsidiaries, or the
acceleration of the maturity of such Indebtedness by the holders thereof
because of a default, with an aggregate outstanding principal amount for
all such Indebtedness under this clause (v) of $7.5 million or more;
(vi) one or more final, non-appealable judgments or orders that
exceed $7.5 million in the aggregate for the payment of money have been
entered by a court or courts of competent jurisdiction against the
Company or any Restricted Subsidiary of
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the Company and such judgment or judgments have not been satisfied,
stayed, annulled or rescinded within 60 days of being entered;
(vii) if under any Bankruptcy Law, (A) the Company, Pro-Fac or any
Significant Subsidiary commences a voluntary case, consents to the entry
of an order for relief against it in an involuntary case, consents to
the appointment of a Custodian of it or for all or substantially all of
its property, or makes a general assignment for the benefit of its
creditors, or (B) a court of competent jurisdiction enters an order or
decree, and such order or decree remains unstated and in effect for 60
days, that is for relief against the Company, Pro-Fac or any Significant
Subsidiary in an involuntary case, appoints a Custodian of the Company,
Pro-Fac or any Significant Subsidiary or for all or substantially all of
the property of the Company, Pro-Fac or any Significant Subsidiary, or
orders the liquidation of the Company, Pro-Fac or any Significant
Subsidiary; and
(viii) except as permitted by Section 11.08 any Note Guarantee
ceases to be in full force and effect or any Note Guarantee is declared
to be null and void and unenforceable or is found to be invalid or any
Guarantor repudiates its obligations under any Note Guarantee.
(b) Any notice of default delivered to the Company by the Trustee
or by Holders of Notes with a copy to the Trustee must specify the Default,
demand that it be remedied and state that the notice is a "NOTICE OF DEFAULT".
SECTION 6.02. Acceleration. (a) If an Event of Default (other
than an Event of Default under Section 6.01(a)(vii) with respect to the Company)
occurs and is continuing under this Indenture, the Trustee, by written notice to
the Company, or the holders of at least 25% in aggregate principal amount of the
Notes then outstanding by written notice to the Company and the Trustee, may
declare all amounts owing under the Notes to be due and payable immediately.
Upon such declaration of acceleration, the aggregate principal of, premium, if
any, and interest (including Additional Interest, if any) on the outstanding
Notes shall immediately become due and payable.
(b) Notwithstanding anything to the contrary in this Indenture,
if an Event of Default arises under Section 6.01(a)(vii) with respect to the
Company, the principal amount of and premium on, if any, and any accrued and
unpaid interest (including Additional Interest, if any) on all outstanding Notes
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
(c) The Holders of a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may rescind any declaration
of acceleration of such Notes and its consequences if the rescission would not
conflict with any judgment or decree
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and if all existing Defaults and Events of Default (other than the nonpayment of
principal of, or premium, if any, or interest on, the Notes which shall have
become due by such declaration) shall have been cured or waived.
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 of, or premium, if any, or interest (including Additional
Interest, if any) on, the Notes or to enforce the performance of any provision
of the Notes or this Indenture. The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder 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. Subject to Section 9.02,
the Holders of a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of all Holders waive any existing
Default or Event of Default and its consequences under this Indenture, except a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest (including Additional Interest, if any) on, any
Note (which may only be waived with the consent of each Holder affected). 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; provided that no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority of Holders. Subject to Section
7.01(e), the Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it by this Indenture. 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, or would
involve the Trustee in personal liability. The Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction.
SECTION 6.06. Limitations on Suits by Holders. A Holder may
pursue a remedy with respect to this Indenture or the Notes only if: (1) the
Holder gives to the Trustee written notice of a continuing Event of Default; (2)
the Holders of at least 25% in principal amount of the then outstanding Notes
make a written request to the Trustee to pursue the remedy; (3) such Holder or
Holders offer to the Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense; (4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of indemnity;
and (5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding
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Notes do not give the Trustee a direction inconsistent with the request. A
Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder. Holders of the Notes may
not enforce this Indenture or the Notes, except as provided herein.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Article
10, the right of any Holder to receive payment of principal of, and premium, if
any, and interest (including Additional Interest, if any) on, a Note, on or
after a respective due date expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective date, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a)(i) or (a)(ii) 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 (or any Guarantor or other obligor under the Notes)
for (i) principal, premium, if any, interest, if any, and Additional Interest,
if any, remaining unpaid on the Notes, (ii) interest on overdue principal and
premium, if any, and, to the extent lawful, interest, and (iii) 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 ("TRUSTEE EXPENSES").
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable to have the claims of the Trustee (including any claim for Trustee
Expenses and for amounts due under Section 7.07) and the Holders allowed in any
Insolvency or Liquidation Proceeding or other judicial proceeding relative to
the Company (or any Guarantor or other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute to Holders any money or other property payable or deliverable on any
such claims and each Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding or other judicial proceeding to make such payments to the
Trustee, and if the Trustee shall consent to the making of such payments
directly to the Holders any such Custodian is hereby authorized to make such
payments directly to the Holders, and to pay to the Trustee any amount due to it
hereunder for Trustee Expenses, and any other amounts due the Trustee or any
predecessor Trustee under Section 7.07; provided, however, that the Trustee
shall not be authorized to (i) consent to, accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder or (ii) vote in respect of the
claim of any Holder in any such Insolvency or Liquidation Proceeding or other
judicial proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
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First: to the Trustee for all Trustee Expenses and for all amounts
due under Section 7.07;
Second: to the holders of Senior Indebtedness to the extent required
by Article 10;
Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Additional Interest, if
any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for
principal, premium, if any, interest and Additional Interest,
if any, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a suit
by Holders of more than 10% in principal amount of the then outstanding Notes.
SECTION 6.12. Willful Default. In the case of an 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 Notes under the provisions of Article 3 and under the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, upon the acceleration of the Notes. If an Event of
Default occurs prior to November 1, 2003 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to November 1,
2003, then, upon acceleration of the Notes, an additional premium shall also
become and be immediately due and payable, to the extent permitted by law, in an
amount equal to 10.0%.
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ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
occurs (and has not been cured) the Trustee shall (i) exercise the rights and
powers vested in it by this Indenture, and (ii) use the same degree of care and
skill in exercising such rights and powers 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
Trustee's duties shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions required to be delivered under this Indenture to
determine whether they conform to this Indenture's requirements.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that: (i) this Section 7.01(c) does not limit the effect of
Section 7.01(b); (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (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 it receives pursuant to Section 6.05. 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.
(d) Every provision of this Indenture that in any way relates to
the Trustee shall be subject to paragraphs (a), (b) and (c) of this Section
7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers or to perform any duty
under this Indenture at the request of any Holders unless such Holders 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 it 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.
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SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document it reasonably believes 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 any such 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 advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it under this Indenture in good faith and in
reliance on such advice or opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) Subject to Section 7.01, 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 its rights or powers.
(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 Notes and
may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. The Trustee shall at all times
comply with section 310(b) of the TIA as in effect from time to time. Each Agent
shall have the same rights as the Trustee under this Section 7.03.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes; it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement or recital in this Indenture or any statement in the Notes or any
other document executed in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
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SECTION 7.05. Notice to Holders of Defaults and Events of
Default. If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to the Holders a notice of the
Default or Event of Default within 30 days after the occurrence thereof. Except
in the case of a Default or Event of Default in payment of principal or interest
or Additional Interest, if any, on any Note (including any failure to redeem
Notes called for redemption or any failure to purchase Notes that are tendered
pursuant to an Offer and that are required to be purchased by the terms of this
Indenture), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers determines in good faith that withholding such notice is in
the Holders' interests.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with May 15, 1999, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with section 313(a)
of the TIA (but if no event described in section 313(a) of the TIA has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with section 313(b)(2) of the TIA.
The Trustee shall also transmit by mail all reports as required by section
313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA,
a copy of each report at the time of its mailing to Holders shall be filed with
the Commission and each stock exchange on which the Notes are listed. The
Company shall notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.07. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time such compensation for its services hereunder as
the parties shall agree in writing from time to time. 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 upon request for all reasonable
disbursements, advances and expenses it incurs or makes in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements, advances, collection costs and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, from and against any
and all losses, liabilities or expenses (including reasonable attorney's fees
and expenses) the Trustee incurs arising out of or in connection with the
acceptance or administration of its duties under this Indenture (including any
expenses incurred in connection with the performance of its duties under Section
6.08), except as set forth below. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity; provided, however, that failure by
the Trustee to provide the Company with any such notice shall not relieve the
Company of any of its obligations under this Section 7.07 except to the extent
that the Company has been prejudiced by such failure. The Company shall defend
the claim and the Trustee shall cooperate in the defense of any such claim. If,
in the reasonable judgment of the Trustee's counsel, the
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Trustee has an interest adverse to the Company or a potential conflict of
interest exists between the Trustee and the Company, 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 Company's obligations under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture. The Company need not reimburse
any expense or indemnify against any loss or liability the Trustee incurs
through the Trustee's negligence or bad faith.
To secure payment of the Company's obligations under this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
the Trustee holds or collects, except that held in trust to pay principal of,
and premium, if any, interest and Additional Interest, if any, on, particular
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
The Trustee's right to receive payments due under this Section 7.07 shall not be
subordinate to any other liability or indebtedness of the Company.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(vii) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law without any need to demonstrate substantial contribution under Bankruptcy
Law.
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 7.08.
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company in writing. The Holders of a majority in
aggregate principal amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing. The Company may remove
the Trustee if: (i) the Trustee fails to comply with Section 7.10; (ii) 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; (iii) a Custodian or
public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of performing the services of the Trustee hereunder.
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; provided that within one year after such appointment the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace any successor Trustee appointed
by the Company.
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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 at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee, subject to its rights
under Section 7.07 and provided that all sums owing to the retiring Trustee
hereunder have been paid. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 shall continue
for the retiring Trustee's benefit with respect to expenses and liabilities
relating to the retiring Trustee's activities prior to being replaced.
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, subject to Section 7.10,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times (i) be a corporation organized and doing business under the laws of
the United States of America, of any state thereof, or the District of Columbia
authorized under such laws to exercise corporate trustee power, (ii) be subject
to supervision or examination by federal or state authority, (iii) have a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition, and (iv) satisfy the requirements
of sections 310(a) and 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to section 311(a) of the TIA, excluding any creditor
relationship listed in section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to section 311(a) of the TIA to the extent
indicated therein.
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ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance. (a)
Subject to Sections 8.01(c) and 8.06, this Indenture shall cease to be of any
further effect after (i) either the Company has delivered to the Trustee all
outstanding Notes (other than Notes replaced pursuant to Section 2.10) for
cancellation or all outstanding Notes have become due and payable and the
Company has irrevocably deposited with the Trustee or a Paying Agent U.S. Legal
Tender and/or Government Securities in an amount sufficient (without
reinvestment thereof) to pay when due all principal of, premium, if any, and
interest and Additional Interest, if any, on, all outstanding Notes (other than
Notes replaced pursuant to Section 2.09), and (ii) the Company pays all other
sums payable under this Indenture.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at
any time may terminate (i) all of its and the Guarantors' obligations under this
Indenture and the Notes ("LEGAL DEFEASANCE"), or (ii) its obligations under
Sections 4.02, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17,
4.18, 4.19(a), (b), (c) and (d) and 5.01 ("COVENANT DEFEASANCE"). The Company
may exercise Legal Defeasance notwithstanding its prior exercise of Covenant
Defeasance.
If the Company exercises Legal Defeasance, payment of the Notes
may not be accelerated because of an Event of Default. If the Company exercises
Covenant Defeasance, payment of the Notes may not be accelerated because of an
Event of Default specified in 6.01 (a)(iii), (iv), (v) or (vi).
Upon satisfaction of the conditions set forth in Section 8.02 and
upon the Company's request (and at the Company's expense), the Trustee shall
acknowledge in writing the discharge of those obligations that the Company has
terminated.
(c) Notwithstanding Sections 8.01(a) and (b), the Company's
obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.10, 2.11, 2.12,
4.01, 4.04, 4.06, 4.14, 7.07, 7.08, 8.04, 8.05, and 8.06, and the obligations of
the Trustee and the Paying Agent under Section 8.04 shall survive until the
Notes have been paid in full. Thereafter, the Company's obligations under
Sections 7.07 and 8.05 and the obligations of the Company, Trustee and Paying
Agent under Section 8.04 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise
either Legal Defeasance or Covenant Defeasance only if:
(i) the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. Legal Tender
or Government Securities,
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or a combination thereof, in such amounts as will be sufficient, (x) in
the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest and
Additional Interest, if any, on the outstanding Notes on the stated
maturity or the date such payments are due in accordance with the terms
of the Notes or on the applicable, redemption date, as the case may be,
and (y) in the opinion of the Company as stated in an Officers'
Certificate, to pay the Trustee Expenses. The Company shall specify
whether the Notes are being defeased to maturity or to a particular
redemption date;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee (1) an Opinion of Counsel reasonably acceptable
to the Trustee confirming that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) 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 will confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred and (2) an Opinion of Counsel to the effect
that (x) the deposit of the trust funds does not violate the Investment
Company Act of 1940 and (y) after the period ending on the 123rd day
after the date of deposit, the trust funds will not be subject to the
effect of Section 547 of the Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee (1) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner at
the same times as would have been the case if such Covenant Defeasance
had not occurred and (2) an Opinion of Counsel to the effect that (x)
the deposit of the trust funds does not violate the Investment Company
Act of 1940 and (y) after the period ending on the 123rd day after the
date of deposit, the trust funds will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute;
(iv) 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 borrowing of funds to be applied to such
deposit) or insofar as Events of Default from
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bankruptcy or insolvency events are concerned, at any time in the period
ending on the 123rd day after the date of deposit;
(v) 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;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
SECTION 8.03. Application of Trust Money. The Trustee or Paying
Agent shall hold in trust U.S. Legal Tender and/or Government Securities
deposited with it pursuant to this Article 8. The Trustee or Paying Agent shall
apply the deposited money and the money from Government Securities in accordance
with this Indenture to the payment of principal of, and premium, if any,
interest or Additional Interest, if any, on, the Notes. Money deposited with the
Trustee or a Paying Agent pursuant to this Article 8 shall not be subject to the
provisions of Article 10.
SECTION 8.04. Repayment to Company. After the Notes have been
paid in full, the Trustee and the Paying Agent shall promptly turn over to the
Company any excess money or Notes held by them.
Any money deposited with the Trustee or a Paying Agent pursuant
to this Article 8 for the payment of the principal of, premium, if any, interest
or Additional Interest, if any, on, any Note that remains unclaimed for two
years after becoming due and payable shall be paid to the Company on its
request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such money shall cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in The New York Times and The Wall Street Journal (National Edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
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SECTION 8.05. Indemnity for Government Securities. The Company
shall pay and shall indemnify the Trustee and any Paying Agent against any tax,
fee or other charge imposed on or assessed against U.S. Legal Tender and/or
Government Securities deposited with it pursuant to this Article 8 or the
principal and interest received on such U.S. Legal Tender and/or Government
Securities.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any U.S. Legal Tender or Government Securities in accordance
with this Article 8 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's Obligations under this
Indenture and the Notes and the Guarantors' Obligations under the Note
Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or Government Securities in
accordance with this Article 8; provided, however, that if the Company or any
Guarantor has made any payment of principal of, or premium, if any, interest, or
Additional Interest, if any, on, any Notes because of the reinstatement of its
Obligations under this Indenture and the Notes or the Note Guarantees, the
Company or such Guarantor, as the case may be, shall be subrogated to the
Holders' rights to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted without
Consent of Holders. (a) The Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder to: (i)
cure any ambiguity, defect or inconsistency; (ii) provide for uncertificated
Notes in addition to or in place of certificated Notes; (iii) provide for the
assumption of the obligations to the Holders of the Company or a Guarantor, as
the case may be, in the event of a merger or consolidation that is permitted by
Article 5; (iv) make any change that (1) would provide any additional rights or
benefits to the Holders or (2) does not adversely affect the legal rights under
this Indenture of any Holder; or (v) comply with the requirements of the
Securities and Exchange Commission in order to effect or maintain the
qualification of this Indenture under the TIA.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors of the Company authorizing the execution of
any amended or supplemental indenture and the documents described in Section
9.06, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture, but the Trustee shall not be obligated to
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enter into an amended or supplemental indenture that adversely affects its own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. Amendments and Supplements Requiring Consent of
Holders. (a) Except as otherwise provided in Section 9.01(a), this Indenture and
the Notes may be amended or supplemented with the written consent of the Holders
of at least a majority in aggregate principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes), and any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived
(other than any continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes (except as set forth in
(C)(iv) below)) with the consent of Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes); provided that:
(A) no such modification or amendment may, without the consent of
the Holders of at least 75% in aggregate principal amount of Notes then
outstanding, amend or modify the obligations of the Company under
Section 4.15 (or the definitions related thereto) that could adversely
affect the rights of any Holder of the Notes;
(B) no such modification or amendment may, without the consent of
Holders of at least 75% in aggregate principal amount of the Notes then
outstanding, amend or modify the obligations of the Company and Pro-Fac
under Section 4.18 (or the definitions related thereto); and
(C) without the consent of each Holder affected, the Company and
the Trustee may not: (i) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver; (ii) reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes; (iii) reduce the
rate of or change the time for payment of interest on any Note; (iv)
waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration); (v) make any Note payable
in money other than that stated in the Notes; (vi) make any change in
the provisions of this Indenture relating to waivers of past Defaults or
of the right of Holders of Notes to receive payments of principal of or
premium, if any, or interest on the Notes; (vii) waive a redemption
payment with respect to any Note; (viii) take any action that would
subordinate the Notes or the Note Guarantees to any other Indebtedness
of the Company or any of Guarantors, respectively (except
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as provided in Article 10), or otherwise affect the ranking of the Notes
or the Note Guarantees; or (ix) release any Guarantor from any of its
payment obligations under its Note Guarantee or this Indenture otherwise
in accordance with this Indenture.
(b) It shall not be necessary for the consent of the Holders
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 each Holder affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.
SECTION 9.03. Compliance with TIA. Every amendment or supplement
to this Indenture or the Notes shall be set forth in an amended supplemental
indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. (a) Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same Indebtedness as the consenting
Holder's Note, even if notation of the consent is not made on such Note.
However, any such Holder or subsequent Holder may revoke the consent as to its
Note or portion of a Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented to the amendment, supplement or waiver.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Notes entitled to consent to
any amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders of Notes at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders of Notes after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such
90-day period.
(c) After an amendment or waiver becomes effective, it shall bind
every Holder, unless it is of the type described in clause (C) of Section
9.02(a), in which case the amendment or waiver shall only bind each Holder that
consented to it and every subsequent Holder of a Note that evidences the same
debt as the consenting Holder's Note.
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SECTION 9.05. Notation or Exchange of Notes. The Trustee may
place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver. Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. Trustee Protected. The Trustee shall sign any
amendment or supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment or supplemental indenture, the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon, an Officers' Certificate and Opinion of Counsel pursuant to
Sections 12.04 and 12.05 as conclusive evidence that such amendment or
supplemental indenture is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Company and the Guarantors in accordance with its terms. Neither the Company nor
any Guarantor may sign an amendment or supplemental indenture until the Board of
Directors of the Company approves it.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate. The Company and each
Guarantor agrees, and each Holder by accepting a Note agrees, that the payment
by the Company of principal of, and premium, if any, and interest and Additional
Interest, if any, on, the Notes, and by each Guarantor of such amounts under its
Note Guarantee (collectively, the "NOTE INDEBTEDNESS"), are subordinated to the
prior payment in full in cash when due of the principal of, and premium, if any,
and accrued and unpaid interest on and all other amounts owing in respect of all
existing and future Senior Indebtedness of the Company and of such Guarantor, as
the case may be.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy. Upon any
payment or distribution to creditors of the Company or any Guarantor of the
assets of the Company or such Guarantor, as the case may be, of any kind or
character in a total or partial liquidation or dissolution of the Company or
such Guarantor, as the case may be, or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or such
Guarantor, as the case may be, whether voluntary or involuntary (including any
assignment for the benefit of creditors and proceedings for marshaling of assets
and liabilities of the Company or such Guarantor, as the case may be) (an
"INSOLVENCY OR LIQUIDATION PROCEEDING"), the holders of all Senior Indebtedness
of the Company or such Guarantor, as the case
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may be, then outstanding will be entitled to payment in full in cash (including
interest accruing subsequent to the filing of petition of bankruptcy or
insolvency at the rate specified in the document relating to the applicable
Senior Indebtedness, whether or not such interest is an allowed claim
enforceable against the Company or such Guarantor, as the case may be, under
applicable law) before the Holders of Notes are entitled to receive any payment
on or with respect to the Note Indebtedness from the Company or such Guarantor,
as the case may be, and until all Senior Indebtedness of the Company or such
Guarantor, as the case may be, receives payment in full in cash, any
distribution to which the Holders of Notes would be entitled will be made to
holders of Senior Indebtedness of the Company or such Guarantor, as the case may
be.
SECTION 10.03. No Payment on Notes in Certain Circumstances. (a)
Upon the occurrence of any default in the payment of any principal of or
interest on or other amounts due on any Designated Senior Indebtedness of the
Company or any Guarantor (a "PAYMENT DEFAULT"), no payment of any kind or
character shall be made by the Company or such Guarantor, as the case may be,
(or by any other Person on its or their behalf) with respect to the Note
Indebtedness unless and until (i) such Payment Default shall have been cured or
waived in accordance with the instruments governing such Designated Senior
Indebtedness or shall have ceased to exist, (ii) such Designated Senior
Indebtedness has been discharged or paid in full in cash in accordance with the
instruments governing such Designated Senior Indebtedness, or (iii) the benefits
of this sentence have been waived by the holders of such Designated Senior
Indebtedness or their Representative immediately after which the Company or such
Guarantor, as the case may be, must resume making any and all required payments,
including missed payments, in respect of its obligations under the Notes.
(b) Upon (i) the occurrence and continuance of an event of
default (other than a Payment Default) relating to Designated Senior
Indebtedness of the Company or any Guarantor, as such event of default is
defined therein or in the instrument or agreement under which such Designated
Senior Indebtedness is outstanding, which event of default, pursuant to the
instruments governing such Designated Senior Indebtedness, entitles the holders
(or a specified portion of the holders) of such Designated Senior Indebtedness
or their designated representative to immediately accelerate without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace period the maturity of such Designated
Senior Indebtedness (whether or not such acceleration has actually occurred) (a
"NON-PAYMENT DEFAULT") and (ii) the receipt by the Trustee and the Company or
such Guarantor, as the case may be, from the trustee or other Representative of
holders of such Designated Senior Indebtedness of written notice (a "PAYMENT
BLOCKAGE NOTICE") of such occurrence, no payment is permitted to be made by the
Company or such Guarantor, as the case may be, (or by any other Person on its or
their behalf) in respect of the Note Indebtedness for a period (a "PAYMENT
BLOCKAGE PERIOD") commencing on the date of receipt by the Trustee of such
Payment Blockage Notice and ending on the earliest to occur of the following
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events (subject to any blockage of payments that may then be in effect due to a
Payment Default on Designated Senior Indebtedness): (w) such Non-payment Default
has been cured or waived or has ceased to exist; (x) a 179-consecutive-day
period commencing on the date such Payment Blockage Notice is received by the
Trustee has elapsed; (y) such Payment Blockage Period has been terminated by
written notice to the Trustee from the trustee or other representative of
holders of such Designated Senior Indebtedness, whether or not such Non-payment
Default has been cured or waived or has ceased to exist; and (z) such Designated
Senior Indebtedness has been discharged or paid in full in cash, immediately
after which, in the case of clause (w), (x), (y) or (z), the Company or such
Guarantor, as the case may be, must resume making any and all required payments,
including missed payments, in respect of its obligations under the Notes.
Notwithstanding the foregoing, (A) not more than one Payment Blockage Period may
be commenced in any period of 360 consecutive days and (B) no default or event
of default with respect to the Designated Senior Indebtedness of the Company or
such Guarantor, as the case may be, that was the subject of a Payment Blockage
Notice which existed or was continuing on the date of the giving of any Payment
Blockage Notice shall be or serve as the basis for the giving of a subsequent
Payment Blockage Notice whether or not within a period of 360 consecutive days
unless such default or event of default shall have been cured or waived for a
period of at least 90 consecutive days after such date. Notwithstanding anything
in this Indenture to the contrary, in no event may the total number of days
during which any Payment Blockage Period or Periods are in effect exceed 179
days in the aggregate during any 360 day consecutive period.
SECTION 10.04. Acceleration of Notes. If payment of the Notes is
accelerated because of an Event of Default, the Company shall promptly notify
each holder of the Senior Indebtedness of the Company or any Guarantor of the
acceleration.
SECTION 10.05. When Distributions Must Be Paid Over. In the event
that any payment or distribution of assets of the Company or any Guarantor,
whether in cash, property or securities, shall be received by the Trustee or the
Holders of Notes at a time when such payment or distribution is prohibited by
this Article 10, such payment or distribution shall be segregated from other
funds or assets and held in trust for the benefit of the holders of Senior
Indebtedness of the Company or such Guarantor, as the case may be, and shall be
paid or delivered by the Trustee or such Holders, as the case may be, to the
holders of the Senior Indebtedness of the Company or such Guarantor, as the case
may be, remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness of the Company
or such Guarantor, as the case may be, may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the Senior Indebtedness
of the Company or such Guarantor, as the case may be, held or represented by
each, for application to the payment of all Senior Indebtedness of the Company
or such Guarantor, as the case may be, remaining unpaid, to the extent necessary
to pay or to provide for the payment in full in
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cash of all such Senior Indebtedness after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
With respect to the holders of Senior Indebtedness of the Company
or any Guarantor, the Trustee undertakes to perform only such obligations on its
part as are specifically set forth in this Article 10, and no implied covenants
or obligations with respect to any holders of the Senior Indebtedness of the
Company or any Guarantor shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness of the Company or any Guarantor and shall not be liable to
any holders of such Senior Indebtedness if the Trustee shall pay over or
distribute to, or on behalf of, Holders or the Company or any other Person,
money or assets to which any holders of such Senior Indebtedness are entitled
pursuant to this Article 10, except if such payment is made at a time when a
Trust Officer has knowledge that the terms of this Article 10 prohibit such
payment.
SECTION 10.06. Notice. Neither the Trustee nor the Paying Agent
shall at any time be charged with the knowledge of the existence of any facts
that would prohibit the making of any payment to or by the Trustee or Paying
Agent under this Article 10, unless and until the Trustee or Paying Agent shall
have received written notice thereof from the Company or such Guarantor or one
or more holders of the Senior Indebtedness of the Company or such Guarantor, as
the case may be, or a Representative of any holders of such Senior Indebtedness;
and, prior to the receipt of any such written notice, the Trustee or Paying
Agent shall be entitled to assume conclusively that no such facts exist. The
Trustee shall be entitled to rely on the delivery to it of written notice by a
Person representing itself to be a holder of the Senior Indebtedness of the
Company or a Guarantor (or a Representative thereof) to establish that such
notice has been given.
The Company shall promptly notify the Trustee and the Paying
Agent in writing of any facts it knows that would cause a payment of principal
of, or premium, if any, or interest (including Additional Interest, if any) on,
the Notes or any other Obligation in respect of the Notes to violate this
Article 10, but failure to give such notice shall not affect the subordination
of the Notes to the Senior Indebtedness of the Company or any Guarantor provided
in this Article 10 or the rights of holders of such Senior Indebtedness under
this Article 10.
SECTION 10.07. Subrogation. After all Senior Indebtedness of the
Company or any Guarantor has been paid in full in cash and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness to
the extent that distributions otherwise payable to Holders have been applied to
the payment of such Senior Indebtedness. A distribution made under this Article
10 to holders of the Senior Indebtedness of the Company or any Guarantor that
otherwise would have been made to Holders is not, as between the Company or such
Guarantor, as the
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case may be, and Holders, a payment by the Company or such Guarantor, as the
case may be, on its Senior Indebtedness.
SECTION 10.08. Relative Rights. This Article 10 defines the
relative rights of Holders and holders of the Senior Indebtedness of the Company
or any Guarantor. Nothing in this Indenture shall: (1) impair, as between the
Company or a Guarantor, as the case may be, and Holders, the Obligations of the
Company or any Guarantor, which are absolute and unconditional, to pay principal
of, and premium, if any, and interest (including Additional Interest, if any) on
the Notes in accordance with their terms; (2) affect the relative rights of
Holders and the creditors of the Company or any Guarantor other than their
rights in relation to holders of the Senior Indebtedness of the Company or any
Guarantor; or (3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders of the Senior Indebtedness of the Company or any Guarantor to receive
distributions and payments otherwise payable to Holders.
Nothing contained in this Article 10 or elsewhere in this
Indenture or in any Note is intended to or shall impair, as between the Company,
any Guarantor and the Holders, the Obligations of the Company and the
Guarantors, which are absolute and unconditional, to pay to the Holders the
principal of, and premium, if any, and interest (including Additional Interest,
if any) on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company and the Guarantors other than
the holders of the Senior Indebtedness of the Company or any Guarantor, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon Default under
this Indenture, subject to the rights, if any, under this Article 10 of the
holders of such Senior Indebtedness.
The failure to make a payment on account of principal of, or
interest on the Notes by reason of any provision of this Article 10 shall not be
construed as preventing the occurrence of an Event of Default under Section
6.01.
SECTION 10.09. The Company, Guarantors and Holders May Not Impair
Subordination. (a) No right of any holder of the Senior Indebtedness of the
Company or any Guarantor to enforce the subordination as provided in this
Article 10 shall at any time or in any way be prejudiced or impaired by any act
or failure to act by the Company or any Guarantor or by any noncompliance by the
Company or any Guarantor with the terms, provisions and covenants of this
Indenture or the Notes or any other agreement regardless of any knowledge
thereof with which any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 10.09(a), the holders of
any Senior Indebtedness of the Company or any Guarantor may, at any time and
from time to time to the extent not otherwise prohibited by this Indenture,
without the consent of or notice to any
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Holders, without incurring any liabilities to any Holder and without impairing
or releasing the subordination and other benefits provided in this Indenture or
the Holders' obligations to the holders of such Senior Indebtedness, even if any
Holder's right of reimbursement or subrogation or other right or remedy is
affected, impaired or extinguished thereby, do any one or more of the following:
(i) amend, renew, exchange, extend, modify, increase or supplement (to the
extent permitted under this Indenture) in any manner such Senior Indebtedness or
any instrument evidencing or guaranteeing or securing such Senior Indebtedness
or any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering (to the extent permitted under this Indenture), (x) the
terms of such Senior Indebtedness, (y) any security for, or any Guarantee of,
such Senior Indebtedness, (z) any liability of any obligor on such Senior
Indebtedness (including any guarantor) or any liability incurred in respect of
such Senior Indebtedness); (ii) sell, exchange, release, surrender, realize
upon, enforce or otherwise deal with in any manner and in any order any property
pledged, mortgaged or otherwise securing such Senior Indebtedness or any
liability of any obligor thereon, to such holder, or any liability incurred in
respect thereof; (iii) settle or compromise any such Senior Indebtedness or any
other liability of any obligor of such Senior Indebtedness to such holder or any
security therefor or any liability incurred in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including,
without limitation, payment of any of the Senior Indebtedness) in any manner or
order; and (iv) fail to take or to record or otherwise perfect, for any reason
or for no reason, any lien or security interest securing such Senior
Indebtedness by whomsoever granted, exercise or delay in or refrain from
exercising any right or remedy against any obligor or any guarantor or any other
Person, elect any remedy and otherwise deal freely with any obligor and any
security for such Senior Indebtedness or any liability of any obligor to the
holders of such Senior Indebtedness or any liability incurred in respect of such
Senior Indebtedness.
SECTION 10.10. Distribution or Notice to Representative. Whenever
a distribution is to be made, or a notice given, to holders of Senior
Indebtedness of the Company or any Guarantor, the distribution may be made and
the notice given to their Representative, if any. If any payment or distribution
of the Company's assets is required to be made to holders of any of the Senior
Indebtedness of the Company or any Guarantor pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely upon any order or decree of
any court of competent jurisdiction, or upon any certificate of a Representative
of such Senior Indebtedness or a Custodian, in ascertaining the holders of such
Senior Indebtedness entitled to participate in any such payment or distribution,
the amount to be paid or distributed to holders of such Senior Indebtedness and
all other facts pertinent to such payment or distribution or to this Article 10.
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SECTION 10.11. Rights of Trustee and Paying Agent. The Trustee or
Paying Agent may continue to make payments on the Notes unless prior to any
payment date it has received written notice of facts that would cause a payment
of principal of, or premium, if any, or interest (including Additional Interest,
if any) on the Notes to violate this Article 10. Only the Company, a Guarantor,
a Representative of Senior Indebtedness, or a holder of Senior Indebtedness that
has no Representative may give such notice.
To the extent permitted by the TIA, the Trustee in its individual
or any other capacity may hold Indebtedness of the Company or any Guarantor
(including Senior Indebtedness) with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
SECTION 10.12. Trust Moneys Not Subordinated; Permitted Junior
Securities. Notwithstanding anything contained herein to the contrary, (x)
payments of U.S. Legal Tender or the proceeds of Government Securities held in
trust under Article 8 by the Trustee for the payment of principal of and
interest on the Notes shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this Article 10
and (y) Holders of Notes may receive and retain Permitted Junior Securities, and
no such receipt or retention will be contractually subordinated in right of
payment to any Senior Indebtedness or subject to the restrictions described in
this Article 10, and none of the Holders shall be obligated to pay over any such
amount to the Company or any Guarantor, any holder of Senior Indebtedness of the
Company or any Guarantor or any other creditor of the Company or any Guarantor.
SECTION 10.13. Authorization to Effect Subordination. Each Holder
of a Note by its acceptance thereof authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 10, and appoints the Trustee as such
Holder's attorney-in-fact for any and all such purposes (including, without
limitation, the timely filing of a claim for the unpaid balance of the Note that
such Holder holds in the form required in any Insolvency or Liquidation
Proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness of the Company or any Guarantor are
hereby authorized, and shall have the right (without any duty), to file an
appropriate claim for and on behalf of the Holders.
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ARTICLE 11
GUARANTEE
SECTION 11.01. Guarantee. Each Guarantor hereby unconditionally,
jointly and severally, guarantees (each a "NOTE GUARANTEE") to each Holder of a
Note authenticated and delivered by the Trustee that: (i) the principal of,
premium and interest (including Additional Interest, if any) on the Notes will
be promptly paid in full when due, whether at maturity, by acceleration,
redemption, upon an Offer or otherwise, and interest on the overdue principal of
and interest (including Additional Interest, if any), and premium, if any, on
the Notes, if any, to the extent lawful, and all other Obligations of the
Company to the Holders or the Trustee under this Indenture and the Notes will be
promptly paid in full, all in accordance with the terms of this Indenture and
the Notes; and (ii) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, that the Notes will be promptly paid
in full when due in accordance with the terms of such extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Each Guarantor hereby further agrees that its Obligations under
this Indenture and the Notes shall, subject to Section 11.05, be unconditional,
regardless of the validity, legality or enforceability of this Indenture or the
Notes, the absence of any action to enforce this Indenture or the Notes, any
waiver or consent by any Holder with respect to any provisions this Indenture or
the Notes, any modification or amendment of, or supplement of, this Indenture or
the Notes, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of such Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Note Guarantee will not be discharged
except by complete performance by the Company of such Obligations. If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
such Guarantor or a Custodian of the Company or such Guarantor any amount paid
by the Company or such Guarantor to the Trustee or such Holder, its Note
Guarantee shall, to the extent previously discharged as a result of any such
payment, be immediately reinstated and be in full force and effect. Each
Guarantor hereby acknowledges and agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Company's Obligations under this Indenture and the Notes may be accelerated as
provided in Article 6 for purposes of its Note Guarantee notwithstanding any
stay, injunction or other prohibition preventing such acceleration, and (y) in
the event of any declaration of acceleration of the Company's Obligations under
this Indenture and the Notes as provided in Article 6, such Obligations (whether
or not due and payable) shall forthwith become due and payable by such Guarantor
for the purpose of its Note Guarantee.
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SECTION 11.02. Trustee to Include Paying Agent. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company, the term "Trustee" as used in this Article 11 shall (unless the context
shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully and for all intents and purposes as if such
Paying Agent were named in this Article 11 in place of the Trustee.
SECTION 11.03. Subordination of Guarantee. Each Guarantor's
Obligations under its Note Guarantee shall be junior and subordinated in right
of payment to any Senior Indebtedness of such Guarantor in the same manner and
to the same extent as the Notes are subordinated to Senior Indebtedness of the
Company pursuant to Article 10.
SECTION 11.04. Limits of Guarantee. Notwithstanding anything to
the contrary in this Article 11, the aggregate amount of the Obligations
guaranteed under this Indenture by each Guarantor shall be limited in amount to
the maximum amount that would not render such Guarantor's obligations subject to
avoidance under applicable fraudulent conveyance provisions of the Bankruptcy
Code or any comparable provision of any applicable state law.
SECTION 11.05. Severability. In case any provision of this
Note Guarantee 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 11.06. Subrogation. Upon making any payment with respect
to the Company hereunder, each Guarantor shall be subrogated to the rights of
the payee against the Company with respect to such payment; provided that no
Guarantor shall enforce any payment by way of subrogation or contribution until
all Obligations of the Company under this Indenture have been paid in full. If
any amount shall be paid to any Guarantor in violation of the preceding sentence
and the Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Notes, and shall, subject to the
provisions of Section 11.03, forthwith be paid to the Trustee for the benefit of
such Holders to be credited and applied upon the Notes, whether matured or
unmatured, in accordance with terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 11.06 is knowingly made in contemplation of such benefits.
SECTION 11.07. Execution of Guarantee. To evidence their Note
Guarantee to the Noteholders specified in Section 11.01, the Guarantors hereby
agree to execute the Note Guarantee in substantially the form of EXHIBIT E,
which shall be endorsed on each Note ordered to be authenticated and delivered
by the Trustee. Each Guarantor hereby agrees that its Note Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding
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any failure to endorse on each Note a notation of such Note Guarantee. Each such
Note Guarantee shall be signed on behalf of each Guarantor by two Officers, or
an Officer and an Assistant Secretary or one Officer shall sign and one Officer
or an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Note
Guarantee prior to the authentication of the Note on which it is endorsed, and
the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Note Guarantee on behalf of
such Guarantor. Such signatures upon the Note Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Note Guarantee, and in case any such officer who shall have
signed the Note Guarantee shall cease to be such officer before the Note on
which such Note Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Note nevertheless
may be authenticated and delivered or disposed of as though the person who
signed the Note Guarantee had not ceased to be such officer of the Guarantor.
SECTION 11.08. Release of Guarantor. A Subsidiary Guarantor shall
be released from all of its obligations under its Guarantee if:
(i) all of the assets or Capital Stock of such Subsidiary
Guarantor have been sold or otherwise disposed of in a transaction in
compliance with the terms of this Indenture (including, without
limitation, Section 4.16); or
(ii) the Subsidiary Guarantor is designated an Unrestricted
Subsidiary in compliance with the terms of this Indenture (including
Section 4.05);
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested by
the Company or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Notes and under this
Article 11.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with the duties imposed by
operation of Section 318(c) of the TIA, the imposed duties shall control.
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SECTION 12.02. Notices. Any notice or communication by the
Company, any Guarantor or the Trustee to the other is duly given if in writing
and delivered in person, mailed by registered or certified mail, postage
prepaid, return receipt requested or delivered by telecopier or overnight air
courier guaranteeing next day delivery to the other's address:
If to the Company or the Guarantors:
Agrilink Foods, Inc.
90 Linden Oaks
Rochester, New York 14602
Telecopier: (716) 383-1606
Attention: President
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier: (212) 858-2952
Attention: Corporate Finance Trust Services
The Company or the Trustee by notice to the other 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: (i) at the time delivered by hand, if
personally delivered; (ii) the date receipt is acknowledged, if mailed by
registered or certified mail; (iii) when answered back, if telecopied and (iv)
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his or her address shown on the register maintained by the
Registrar. 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 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of section
312(c) of the TIA.
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SECTION 12.04. 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, at
the Trustee's request: (a) an Officers' Certificate (which shall include the
statements set forth in Section 12.05) 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 complied with and (b) an
Opinion of Counsel (which shall include the statements set forth in Section
12.05) stating that, in the opinion of such counsel, all such conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to section 314(a)(4) of the TIA) shall include: (1) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with, and (4) a statement as to whether, in such
Person's opinion, such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 12.07. Legal Holidays. If a payment date is a not a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
SECTION 12.08. No Recourse Against Others. No director, officer,
employee, incorporator or direct or indirect stockholder or Affiliate of the
Company or any Guarantor (other than the Company and any Guarantor), as such,
shall have any liability for any obligation of the Company or such Guarantor
under this Indenture, the Note Guarantees or the Notes or for any claim based
on, in respect of, or by reason of, any such obligation or the creation of any
such obligation. Each Holder by accepting a Note waives and releases such
Persons from all such liability and such waiver and release is part of the
consideration for the issuance of the Notes.
SECTION 12.09. Counterparts. This Indenture may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
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SECTION 12.10. Initial Appointments, Compliance Certificates. The
Company initially appoints the Trustee as Paying Agent, Registrar (subject to
Section 2.03 and 2.06) and authenticating agent. The first compliance
certificate to be delivered by the Company to the Trustee pursuant to Section
4.03 shall be for the fiscal year ending on June 26, 1999.
SECTION 12.11. Governing Law. The laws of the State of New York
shall govern this Indenture and the Notes, without regard to conflict of laws
provisions thereof.
SECTION 12.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries, and no other indenture,
loan or debt agreement may be used to interpret this Indenture.
SECTION 12.13. Successors. All agreements of the Company and the
Guarantors in this Indenture and the Notes shall bind any successors of the
Company and such Guarantors, respectively. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.14. Severability. If any provision in this Indenture
or in the 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 12.15. Third Party Beneficiaries. Holders of Senior
Indebtedness are third party beneficiaries of this Indenture, and any of them
(or their Representative) shall have the right to enforce the provisions of this
Indenture that benefit such holders.
SECTION 12.16. Table of Contents, Headings, Etc. The Table of
Contents 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 of this Indenture.
[Signature Pages Follow]
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S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date and year first written above.
AGRILINK FOODS, INC.
By: /s/ DENNIS M. MULLEN
-----------------------------
Name:
Title:
PRO-FAC COOPERATIVE, INC.
By: /s/ EARL L. POWERS
-----------------------------
Name:
Title:
LINDEN OAKS CORPORATION
By: /s/ TIMOTHY BENJAMIN
-----------------------------
Name:
Title:
KENNEDY ENDEAVORS, INCORPORATED
By: /s/ EARL L. POWERS
-----------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
By:
-----------------------------
Name:
Title:
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date and year first written above.
AGRILINK FOODS, INC.
By:
-----------------------------
Name:
Title:
PRO-FAC COOPERATIVE, INC.
By:
-----------------------------
Name:
Title:
LINDEN OAKS CORPORATION
By:
-----------------------------
Name:
Title:
KENNEDY ENDEAVORS, INCORPORATED
By:
-----------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
By: /s/ TERENCE RAWLINS
-----------------------------
Name: TERENCE RAWLINS
Title: ASSISTANT VICE PRESIDENT
EXHIBIT A
[FORM OF INITIAL NOTE]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
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 (1)
BY ITS ACQUISITION HEREOF REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT AND (2) 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 OR ANOTHER EXEMPTION
UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER THAT PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE OF THIS NOTE AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS NOTE (THE "RESALE RESTRICTION TERMINATION DATE") (X)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (i)
(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON
(AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) 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), (ii) TO THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES
A-1
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (Y) 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 (X) ABOVE. THE FOREGOING
RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO THE RESALE
RESTRICTION TERMINATION DATE.
AGRILINK FOODS, INC.
11-7/8% SENIOR SUBORDINATED NOTES DUE 2008
No. ____________ $__________
[CUSIP][CINS] NO.
Agrilink Foods, Inc., a corporation duly organized and existing
under the laws of the State of New York (herein called the "COMPANY", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ___________________ Dollars on November 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing
May 1, 1999
Record Dates:. April 15 and October 15
Pursuant to the Indenture, the payment of principal of and
premium, if any, and interest and, if applicable, Additional Interest on this
Note is unconditionally guaranteed by Pro-Fac Cooperative, Inc., a cooperative
corporation duly organized and existing under the laws of the State of New York,
and its successors ("PRO-FAC") and by the Subsidiary Guarantors (as defined in
the Indenture) (together with Pro-Fac, the "GUARANTORS"), and such other Persons
as may from time to time execute and deliver to the Trustee a counterpart of the
Indenture as a Subsidiary Guarantor.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof and as more fully specified in the Indenture,
which further provisions shall for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
AGRILINK FOODS, INC.
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
Dated: [ ]
This is one of the Notes referred to in the within-mentioned
Indenture.
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
Dated: [ ] By:
-----------------------------
Authorized Signatory
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FORM OF REVERSE OF NOTE
1. INTEREST. Agrilink Foods, Inc. (the "COMPANY") promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Cash interest will accrue at 11-7/8% per annum until maturity
and will be payable semi-annually in arrears in cash on May 1 and November 1 of
each year commencing May 1, 1999, or if any such day is not a Business Day on
the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on
this Note will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from the original date of issue. To the extent
lawful, the Company shall pay interest on overdue principal, premium, if any,
interest and Additional Interest, if any, from time to time on demand at the
rate borne by this Note, compounded semi-annually. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
In the event that one or more Registration Defaults (as defined
in the Registration Rights Agreements) shall have occurred and be continuing
under the Registration Rights Agreement, then Additional Interest (as defined
therein) (in addition to the interest otherwise due hereon) will accrue on the
principal amount of the Transfer Restricted Securities (as defined therein) from
and including the date on which the first such Registration Default shall have
occurred to but excluding the date on which all such Registration Defaults have
been cured. All accrued Additional Interest, if any, will be paid by the Company
or the Guarantors, in arrears, on each Interest Payment Date.
2. METHOD OF PAYMENT. The Company will pay interest on this Note
to the Person who is the registered Holder of this Note at the close of business
on the record date for the next Interest Payment Date, which record date shall
be April 15 and October 15 of each year (each a "RECORD DATE"); notwithstanding
the foregoing, the first Record Date shall be April 15, 1999. Holders must
surrender Notes to a Paying Agent, as defined below, to collect principal
payments on such Notes. Principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes will be payable at the office or agency of the
Company maintained for such purpose within the Borough of Manhattan in the City
and State of New York or, at the option of the Company by wire transfer of
immediately available funds or, in the case of certificated securities only, by
mailing a check to the registered address of the Holder. Until otherwise
designated by the Company, the Company's office or agency will be the office of
the Trustee maintained for such purpose. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. LEGAL TENDER").
3. PAYING AGENT AND REGISTRAR. (a) IBJ Schroder Bank & Trust
Company (the "TRUSTEE") will initially act as the Paying Agent and Registrar.
The Company may appoint additional paying agents or co-registrars, and change
the Paying Agent, any additional
A-4
paying agent, the Registrar or any co-registrar without prior notice to any
Holder. The Company, any Guarantor or any of their respective Affiliates may act
in any such capacity unless an Event of Default shall have occurred and be
continuing.
(b) Pursuant to the Indenture, the Company has appointed the
Trustee as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
(c) Holders shall present Notes to the Trustee, as transfer and
exchange agent, for transfer and exchange.
4. INDENTURE. The Company has issued the Notes under an
Indenture, dated as of November 18, 1998 (the "INDENTURE"), among the Company,
as issuer of the Notes, the Guarantors party thereto and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as in effect on the date of the original issuance of the Notes
(the "TRUST INDENTURE ACT"). Capitalized terms used herein are used as defined
in the Indenture unless defined herein. The Notes are subject to, and qualified
by, all such terms, certain of which are summarized herein, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of such
terms (all capitalized terms not defined herein shall have the meanings assigned
to them in the Indenture). The Notes are unsecured general obligations of the
Company limited to $200,000,000 in aggregate principal amount.
5. REDEMPTION PROVISIONS. (a) The Notes are not subject to any
mandatory sinking fund redemption prior to maturity.
(b) The Notes may not be redeemed prior to November 1, 2003, but
will be redeemable at the option of the Company, in whole or in part, at any
time on or after November 1, 2003, at the following redemption prices (expressed
as percentages of principal amount), together with accrued and unpaid interest
thereon to the redemption date, if redeemed during the twelve-month period
beginning November 1:
OPTIONAL
REDEMPTION
YEAR PRICE
2003................................. 105.938%
2004................................. 103.958%
2005................................. 101.979%
2006 and thereafter.................. 100.000%
Notwithstanding the foregoing, at any time prior to November 1,
2001, the Company may redeem at its option up to 35% of the aggregate principal
amount of the Notes originally issued with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 111.875% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the redemption date; provided that (a) at least $130 million in
A-5
aggregate principal amount of the Notes originally issued remains outstanding
immediately after the occurrence of any such redemption and (b) such redemption
occurs within 60 days of the date of the closing of any such Equity Offering.
(c) If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among the
outstanding Notes on a pro rata basis, by lot or by any other method permitted
in the Indenture. Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder whose Notes are to
be redeemed at the registered address of such holder. On and after the
redemption date, interest will cease to accrue on the Notes or portions thereof
called for redemption.
6. MANDATORY OFFERS. (a) Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
repurchase such Holder's Notes, in whole or in part in integral multiples of
$1,000 in principal amount, for a cash purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest (including Additional
Interest, if any), if any, to the date of repurchase, as provided in, and
subject to the terms of, the Indenture.
(b) The Company is, subject to certain conditions, obligated to
make an offer to purchase Notes at 100% of their principal amount, plus accrued
and unpaid interest (including Additional Interest, if any), if any, thereon to
the date of repurchase with certain of the Net Available Proceeds of Asset Sales
in accordance with the Indenture.
7. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed
or purchased in part, but only in multiples of $1,000 principal amount unless
all Notes held by a Holder are to be redeemed or purchased. On or after any date
on which Notes are redeemed or purchased, interest ceases to accrue on the Notes
or portions thereof called for redemption or accepted for purchase on such date.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 principal amount of maturity
and integral multiples thereof. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. Holders seeking to transfer
or exchange their Notes may be required, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not exchange
or register the transfer of any Note or portion of a Note selected for
redemption or tendered pursuant to an Offer. Neither the Trustee nor the
Registrar shall be required (i) to register the transfer of or exchange any Note
selected for redemption, (ii) to register the transfer of or exchange any Note
for a period of 15 days before the mailing of a notice of redemption ending on
the date of such mailing, (iii) to register the transfer or exchange of a Note
between a Record Date and the next succeeding Interest Payment Date.
A-6
9. PERSONS DEEMED OWNERS. The registered Holder of a Note shall
be treated as the owner of the Note for all purposes.
10. AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions,
the Indenture and the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and any existing Default or Event
of Default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
(b) Notwithstanding section 10(a) above, the Company, the
Guarantors and the Trustee may amend or supplement the Indenture or the Notes,
without the consent of any Holder, to: cure any ambiguity, defect or
inconsistency; provide for uncertificated Notes in addition to or in place of
certificated Notes; provide for the assumption of the obligations to the Holders
of the Company, or the Guarantors, as the case may be, in the event of any
merger or reorganization involving the Company, or a Guarantor, as the case may
be, that is permitted under Article 5 of the Indenture; make any change that
would provide any additional rights or benefits to Holders or does not adversely
affect the legal rights under the Indenture of any Holder; or comply with the
requirements of the Securities and Exchange Commission ("SEC") in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
11. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
immediately in the manner and with the effect provided in the Indenture. Holders
of Notes may not enforce the Indenture, the Notes or the Note Guarantees except
as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Notes or the Note Guarantees unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of certain continuing
Defaults or Events of Default if it determines that withholding notice is in
their interest.
12. SUBORDINATION. All Obligations owed under and in respect of
the Notes are subordinated in right of payment, to the extent and in the manner
provided in Article 10 of the Indenture, to the prior payment in full in cash of
all Obligations owed under and in respect of all existing and future Senior
Indebtedness of the Company and of each Guarantor, and the subordination of the
Notes is for the benefit of all holders of all Senior Indebtedness, whether
outstanding on the Issue Date or incurred thereafter. The Company and each
Guarantor agree, and each Holder by accepting a Note agrees, to the
subordination.
A-7
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or direct or indirect stockholder of the Company or any Guarantor
(other than the Company and any Guarantor), as such, shall have any liability
for any obligation of the Company or such Guarantor under the Indenture or the
Notes or Note Guarantees or for any claim based on, in respect of, or by reason
of, any such obligation or the creation of any such obligation. Each Holder by
accepting a Note waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the issuance of the
Notes.
15. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Company and
the Guarantors may be discharged from their obligations under the Indenture, the
Notes and the Note Guarantees except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture, the Notes and the Note Guarantees, in each case upon satisfaction of
certain conditions specified in the Indenture.
16. RESTRICTIVE COVENANTS. The Indenture contains certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Company to the Company, to
consolidate, merge or sell all or substantially all of its assets or to engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must annually report to the
Trustee on compliance with such limitations.
17. GOVERNING LAW. This Note shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
18. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
19. CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Note Identification Procedures, the Company has
caused CUSIP and CINS numbers, as applicable, to be printed on the Notes and has
directed the Trustee to use CUSIP and CINS numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers printed on the Notes.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to: Agrilink Foods,
Inc., 90 Linden
A-8
Oaks, P.O. Box 20670, Rochester, New York 14602, Attention: Vice
President--Communications, or by telephone at 716-383-1850.
A-9
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES*
The following exchanges of a part of this Global Note for
Physical Notes have been made:
Amount of Amount of increase Principal Amount of Signature of
decrease in in this Global Note authorized officer
Date of Exchange Principal Amount Principal Amount of following such of Trustee or
of this Global this Global Note decrease (or increase) Notes Custodian
Note
- --------------------------------------------------------------------------------------------------------
- ------------------------
* This schedule should only be added if the Note is issued in global form.
A-10
ASSIGNMENT FORM
I or we assign and transfer this Note to
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- ------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Dated: _________________ Signed: _______________________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee: ______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantee
program reasonably acceptable to the Trustee)
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "SECURITIES ACT") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) by end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Note is being transferred:
A-11
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that has furnished
to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can
be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in
compliance with Rule 904 of Regulation S under the Securities
Act; or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6) __ pursuant to an effective registration statement under the Securities Act;
or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided that if box (3), (4),
(5) or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in its sole discretion, such legal
opinions, certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act.
A-12
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.09 of the Indenture shall have been satisfied.
Dated: __________________ Signed: _______________________________
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee: _________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantee
program reasonably acceptable to the Trustee)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________ ________________________________
NOTICE: To be executed by
an executive officer
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant
to Section 4.15 of the Indenture, check the box: [ ]
If you elect to have this Note purchased by the Company pursuant
to Section 4.16 of the Indenture, check the box: [ ]
If you elect to have only part of the principal amount of this
Note purchased by the Company pursuant to Section 4.15 or 4.16 of the Indenture,
state the portion of such amount (multiples of $1,000 principal amount only):
$____________________________.
Dated: ______________________ Your signature: _______________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:____________________________________
(Signature must be guaranteed by a financial institution that is
a member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
A-14
EXHIBIT B
[FORM OF EXCHANGE NOTE]
AGRILINK FOODS, INC.
11-7/8% SENIOR SUBORDINATED NOTES DUE 2008
No. ____________ $__________
[CUSIP][CINS] NO.
Agrilink Foods, Inc., a corporation duly organized and existing
under the laws of the State of New York (herein called the "COMPANY", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ___________________ Dollars on November 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing
May 1, 1999
Record Dates: April 15 and October 15
Pursuant to the Indenture, the payment of principal of and
premium, if any, and interest and, if applicable, Additional Interest on this
Note is unconditionally guaranteed by Pro-Fac Cooperative, Inc., a cooperative
corporation duly organized and existing under the laws of the State of New York,
and its successors ("PRO-FAC") and by the Subsidiary Guarantors (as defined in
the Indenture) (together with Pro-Fac, the "GUARANTORS"), and such other Persons
as may from time to time execute and deliver to the Trustee a counterpart of the
Indenture as a Subsidiary Guarantor.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof and as more fully specified in the Indenture,
which further provisions shall for all purposes have the same effect as if set
forth at this place.
B-1
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
AGRILINK FOODS, INC.
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
Dated: [ ]
This is one of the Notes referred to in the within-mentioned
Indenture.
IBJ SCHRODER BANK & TRUST COMPANY
as Trustee
Dated: [ ] By:
--------------------------------
Authorized Signatory
B-2
FORM OF REVERSE OF NOTE
1. INTEREST. Agrilink Foods, Inc. (the "COMPANY") promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Cash interest will accrue at 11-7/8% per annum until maturity
and will be payable semi-annually in arrears in cash on May 1 and November 1 of
each year commencing May 1, 1999, or if any such day is not a Business Day on
the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on
this Note will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from the original date of issue. To the extent
lawful, the Company shall pay interest on overdue principal, premium, if any,
interest and Additional Interest, if any, from time to time on demand at the
rate borne by this Note, compounded semi-annually. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
There shall also be payable in respect of this Note all
Additional Interest that may have accrued on the Note for which this Note was
exchanged (as defined in such Note) pursuant to the Exchange Offer or otherwise
pursuant to a Registration of such Note, such Additional Interest to be payable
in accordance with the terms of such Note.
2. METHOD OF PAYMENT. The Company will pay interest on this Note
to the Person who is the registered Holder of this Note at the close of business
on the record date for the next Interest Payment Date, which record date shall
be April 15 and October 15 of each year (each a "RECORD DATE"); notwithstanding
the foregoing, the first Record Date shall be April 15, 1999. Holders must
surrender Notes to a Paying Agent, as defined below, to collect principal
payments on such Notes. Principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes will be payable at the office or agency of the
Company maintained for such purpose within the Borough of Manhattan in the City
and State of New York or, at the option of the Company by wire transfer of
immediately available funds or, in the case of certificated securities only, by
mailing a check to the registered address of the Holder. Until otherwise
designated by the Company, the Company's office or agency will be the office of
the Trustee maintained for such purpose. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. LEGAL TENDER").
3. PAYING AGENT AND REGISTRAR. (a) IBJ Schroder Bank & Trust
Company (the "TRUSTEE") will initially act as the Paying Agent and Registrar.
The Company may appoint additional paying agents or co-registrars, and change
the Paying Agent, any additional paying agent, the Registrar or any co-registrar
without prior notice to any Holder. The Company, any Guarantor or any of their
respective Affiliates may act in any such capacity unless an Event of Default
shall have occurred and be continuing.
(b) Pursuant to the Indenture, the Company has appointed the
Trustee as transfer and exchange agent for the purpose of any transfer or
exchange of the Notes.
B-3
(c) Holders shall present Notes to the Trustee, as transfer and
exchange agent, for transfer and exchange.
4. INDENTURE. The Company has issued the Notes under an
Indenture, dated as of November 18, 1998 (the "INDENTURE"), among the Company,
as issuer of the Notes, the Guarantors party thereto and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as in effect on the date of the original issuance of the Notes
(the "TRUST INDENTURE ACT"). The Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders are referred to
the Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned to them in
the Indenture). The Notes are unsecured general obligations of the Company
limited to $200,000,000 in aggregate principal amount.
5. REDEMPTION PROVISIONS. (a) The Notes are not subject to any
mandatory sinking fund redemption prior to maturity.
(b) The Notes may not be redeemed prior to November 1, 2003, but
will be redeemable at the option of the Company, in whole or in part, at any
time on or after November 1, 2003, at the following redemption prices (expressed
as percentages of principal amount), together with accrued and unpaid interest
if any, thereon to the redemption date, if redeemed during the twelve-month
period beginning November 1:
OPTIONAL
REDEMPTION
YEAR PRICE
2003................................. 105.938%
2004................................. 103.958%
2005................................. 101.979%
2006 and thereafter.................. 100.000%
Notwithstanding the foregoing, at any time prior to November 1,
2001, the Company may redeem at its option up to 35% of the aggregate principal
amount of the Notes originally issued with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 111.875% of the principal amount
thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the redemption date; provided that (a) at least $130 million in aggregate
principal amount of the Notes remains outstanding immediately after the
occurrence of any such redemption and (b) such redemption occurs within 60 days
of the date of the closing of any such Equity Offering.
(c) If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among the
outstanding Notes on a pro rata basis, by lot or by any other method permitted
in the Indenture. Notice of redemption will
B-4
be mailed at least 30 days but not more than 60 days before the redemption date
to each holder whose Notes are to be redeemed at the registered address of such
holder. On and after the redemption date, interest will cease to accrue on the
Notes or portions thereof called for redemption.
6. MANDATORY OFFERS. (a) Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
repurchase such Holder's Notes, in whole or in part in integral multiples of
$1,000 in principal amount, for a cash purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest (including Additional
Interest, if any), if any, to the date of repurchase, as provided in, and
subject to the terms of, the Indenture.
(b) The Company is, subject to certain conditions, obligated to
make an offer to purchase Notes at 100% of their principal amount, plus accrued
and unpaid interest (including Additional Interest, if any), thereon to the date
of repurchase with certain of the Net Available Proceeds of Asset Sales in
accordance with the Indenture.
7. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed
or purchased in part, but only in multiples of $1,000 principal amount unless
all Notes held by a Holder are to be redeemed or purchased. On or after any date
on which Notes are redeemed or purchased, interest ceases to accrue on the Notes
or portions thereof called for redemption or accepted for purchase on such date.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 principal amount of maturity
and integral multiples thereof. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. Holders seeking to transfer
or exchange their Notes may be required, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not exchange
or register the transfer of any Note or portion of a Note selected for
redemption or tendered pursuant to an Offer. Neither the Trustee nor the
Registrar shall be required (i) to register the transfer of or exchange any Note
selected for redemption, (ii) to register the transfer of or exchange any Note
for a period of 15 days before the mailing of a notice of redemption ending on
the date of such mailing, (iii) to register the transfer or exchange of a Note
between a Record Date and the next succeeding Interest Payment Date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note shall
be treated as the owner of the Note for all purposes.
10. AMENDMENTS AND WAIVERS. (a) Subject to certain exceptions,
the Indenture and the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and any existing Default
B-5
or Event of Default or compliance with any provision of the Indenture or the
Notes may be waived with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes).
(b) Notwithstanding section 10(a) above, the Company, the
Guarantors and the Trustee may amend or supplement the Indenture or the Notes,
without the consent of any Holder, to: cure any ambiguity, defect or
inconsistency; provide for uncertificated Notes in addition to or in place of
certificated Notes; provide for the assumption of the obligations to the Holders
of the Company, or the Guarantors, as the case may be, in the event of any
merger or reorganization involving the Company, or a Guarantor, as the case may
be, that is permitted under Article 5 of the Indenture; make any change that
would provide any additional rights or benefits to Holders or does not adversely
affect the legal rights under the Indenture of any Holder; or comply with the
requirements of the Securities and Exchange Commission ("SEC") in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
11. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
immediately in the manner and with the effect provided in the Indenture. Holders
of Notes may not enforce the Indenture, the Notes or the Note Guarantees except
as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Notes or the Note Guarantees unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of certain continuing
Defaults or Events of Default if it determines that withholding notice is in
their interest.
12. SUBORDINATION. All Obligations owed under and in respect of
the Notes are subordinated in right of payment, to the extent and in the manner
provided in Article 10 of the Indenture, to the prior payment in full in cash of
all Obligations owed under and in respect of all existing and future Senior
Indebtedness of the Company and of each Guarantor, and the subordination of the
Notes is for the benefit of all holders of all Senior Indebtedness, whether
outstanding on the Issue Date or incurred thereafter. The Company and each
Guarantor agree, and each Holder by accepting a Note agrees, to the
subordination.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or direct or indirect stockholder of the Company or any Guarantor
(other than the Company and any Guarantor), as such, shall have any liability
for any obligation of the Company or such Guarantor under the Indenture or the
Notes or Note Guarantees or for any claim based on, in respect
B-6
of, or by reason of, any such obligation or the creation of any such obligation.
Each Holder by accepting a Note waives and releases such Persons from all such
liability, and such waiver and release is part of the consideration for the
issuance of the Notes.
15. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Company and
the Guarantors may be discharged from their obligations under the Indenture, the
Notes and the Guarantees except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture, the Notes and the Note Guarantees, in each case upon satisfaction of
certain conditions specified in the Indenture.
16. RESTRICTIVE COVENANTS. The Indenture contains certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Company to the Company, to
consolidate, merge or sell all or substantially all of its assets or to engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must annually report to the
Trustee on compliance with such limitations.
17. GOVERNING LAW. This Note shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
18. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
19. CUSIP/CINS NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Note Identification Procedures, the Company has
caused CUSIP and CINS numbers, as applicable, to be printed on the Notes and has
directed the Trustee to use CUSIP and CINS numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers printed on the Notes.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to: Agrilink Foods,
Inc., 90 Linden Oaks, P.O. Box 20670, Rochester, New York 14602, Attention: Vice
President--Communications, or by telephone at 716-383-1850.
B-7
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES*
The following exchanges of a part of this Global Note for
Physical Notes have been made:
Amount of Amount of increase Principal Amount of Signature of
decrease in in this Global Note authorized officer
Date of Exchange Principal Amount Principal Amount of following such of Trustee or
of this Global this Global Note decrease (or increase) Notes Custodian
Note
- -------------------------------------------------------------------------------------------------------
- ----------------------
* This schedule should only be added if the Note is issued in global form.
B-8
ASSIGNMENT FORM
I or we assign and transfer this Note to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Dated: _________________ Signed: _______________________________________
(Sign exactly as name appears on the other
side of this Note)
Signature Guarantee: ______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantee
program reasonably acceptable to the Trustee)
B-9
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant
to Section 4.15 of the Indenture, check the box: [ ]
If you elect to have this Note purchased by the Company pursuant
to Section 4.16 of the Indenture, check the box: [ ]
If you elect to have only part of the principal amount of this
Note purchased by the Company pursuant to Section 4.15 or 4.16 of the Indenture,
state the portion of such amount (multiples of $1,000 principal amount only):
$______________________________.
Dated: ______________________ Your signature: ________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:________________________________
(Signature must be guaranteed by a financial institution that is
a member of the Securities Transfer Agent Medallion Program ("STAMP"), in
accordance with the Securities Exchange Act of 1934, as amended.)
B-10
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
[ ], [ ]
IBJ Schroder Bank & Trust Company
One State Street
New York, NY 10004
Attention: Corporate Trust Administration
Re: Agrilink Foods, Inc. (the "COMPANY")
11-7/8% Senior Subordinated Notes
due 2008 (the "NOTES")
------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of Notes of the Company,
we confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), or an entity in which all of the equity owners
are accredited investors within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act (the "INSTITUTIONAL ACCREDITED
INVESTOR");
(ii) any purchase of Notes by us will be for our own account or
for the account of one or more other Institutional Accredited Investors;
(iii) in the event that we purchase any Notes, we will acquire
Notes having a minimum purchase price of at least $100,000 for our own
account and for each separate account for which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing Notes;
C-1
(v) we are not acquiring Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act or the
securities laws of any State of the United States or any other
applicable jurisdiction; provided that the disposition of our property
and the property of any accounts for which we are acting as fiduciary
shall remain at all times within our control; and
(vi) we acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto,
as we deem necessary in connection with our decision to purchase Notes.
We understand that the Notes are being offered in a transaction
not involving any public offering within the meaning of the Securities Act and
that the Notes have not been registered under the Securities Act, and we agree,
on our own behalf and on behalf of each account for which are acquired any
Notes, that any such Notes may be offered, resold, pledged or otherwise
transferred only: (i) to a person whom we reasonably believe to be a qualified
institutional buyer (as defined in Rule 144A under the Securities Act), in a
transaction meeting the requirements of Rule 144A, outside the United States in
a transaction meeting the requirements of Rule 904 under the Securities Act, or
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), (ii) to the Company or (iii) 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. We
understand that the registrar will not be required to accept for registration of
transfer any Notes, except upon presentation of evidence satisfactory to the
Company that the foregoing restrictions on transfer have been complied with. We
further understand that the Notes purchased by us will bear a legend reflecting
the substance of this paragraph. We acknowledge that you and others will rely
upon our confirmations, acknowledgments and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete.
C-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
--------------------------------
(Name of Purchaser)
By:
-------------------------------
Name:
Title:
Address:
------
--------------------------
--------------------------
C-3
EXHIBIT D
Form of Certificate to be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
---------, ----
IBJ Schroder Bank & Trust Company
One State Street
New York, NY 10004
Attention: Corporate Trust Administration
Re: Agrilink Foods, Inc. (the "COMPANY")
11-7/8% Senior Subordinated Notes due 2008 (the "NOTES")
--------------------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$200,000,000
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act of 1933.
D-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------------
Authorized Signatory
D-2
EXHIBIT E
NOTE GUARANTEE
--------------
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest (and Additional Interest, if any) on this Note in the amounts
and at the times when due and interest on the overdue principal, premium, if
any, and interest (and Additional Interest, if any), if any, of this Note, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture (as defined below) or the Notes, to the Holder of this Note
and the Trustee, all in accordance with and subject to the terms and limitations
of this Note, Articles 10 and 11 of the Indenture and this Note Guarantee. This
Note Guarantee will become effective in accordance with Article 11 of the
Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Note Guarantee shall not be affected by the fact that it
is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of November 18, 1998, among
Agrilink Foods, Inc., a New York corporation, as issuer (the "COMPANY"), the
Guarantors named therein and IBJ Schroder Bank & Trust Company, as trustee (the
"TRUSTEE"), as amended or supplemented (the "INDENTURE").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Note Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture, and are expressly subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of the Guarantors to the extent set forth in Article 10 of the
Indenture, and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee and all of the other provisions of the Indenture to which
this Note Guarantee relates.
THIS NOTE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
This Note Guarantee is subject to release upon the terms set
forth in the Indenture.
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IN WITNESS WHEREOF, each Guarantor has caused its Note Guarantee
to be duly executed.
Date: [ ]
PRO-FAC COOPERATIVE, INC.
By:
---------------------------
Name:
Title:
LINDEN OAKS CORPORATION
By:
---------------------------
Name:
Title:
KENNEDY ENDEAVORS, INCORPORATED
By:
---------------------------
Name:
Title:
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