Exhibit (b)(2)
CONFORMED COPY
SEMINIS VEGETABLE SEEDS, INC.,
the Guarantors named herein
and
Wells Fargo Bank, National Association, as Trustee
INDENTURE
Dated as of September 29, 2003
$190,000,000
10-1/4 % Senior Subordinated Notes due 2013
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)................................................................ N.A.
(b)................................................................... 7.08; 7.10
(b)(1)................................................................ 7.10
(c)................................................................... N.A.
311(a)................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312(a)................................................................... 2.06
(b)................................................................... 13.03
(c)................................................................... 13.03
313(a)................................................................... 7.06
(b)(1)................................................................ N.A.
(b)(2)................................................................ 7.06; 11.04
(c)................................................................... 7.06; 11.04
(d)................................................................... 7.06
314(a)................................................................... 4.18; 13.04
(b)................................................................... 11.02
(c)(1)................................................................ 13.04
(c)(2)................................................................ 13.04
(c)(3)................................................................ N.A.
(d)................................................................... 11.04
(e)................................................................... 13.05
(f)................................................................... N.A.
315(a)................................................................... 7.01(b)
(b)................................................................... 7.05
(c)................................................................... 7.01(a)
(d)................................................................... 7.01(c)
(e)................................................................... 6.12
316(a)(last sentence).................................................... 2.10
(a)(1)(A)............................................................. 6.05
(a)(1)(B)............................................................. 6.04
(a)(2)................................................................ N.A.
(b)................................................................... 6.08
(c)................................................................... 8.04
317(a)(1)................................................................ 6.09
(a)(2)................................................................ 6.10
(b)................................................................... 2.05; 7.12
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 ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions......................................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act................................... 34
SECTION 1.03. Rules of Construction............................................................... 35
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes..................................................................... 36
SECTION 2.02. Form and Dating..................................................................... 36
SECTION 2.03. Execution and Authentication........................................................ 38
SECTION 2.04. Registrar and Paying Agent.......................................................... 39
SECTION 2.05. Paying Agent To Hold Money in Trust................................................. 39
SECTION 2.06. Holder Lists........................................................................ 40
SECTION 2.07. Transfer and Exchange............................................................... 40
SECTION 2.08. Replacement Notes................................................................... 41
SECTION 2.09. Outstanding Notes................................................................... 41
SECTION 2.10. Treasury Notes...................................................................... 41
SECTION 2.11. Temporary Notes..................................................................... 42
SECTION 2.12. Cancellation........................................................................ 42
SECTION 2.13. Defaulted Interest.................................................................. 42
SECTION 2.14. CUSIP Number........................................................................ 43
SECTION 2.15. Deposit of Moneys................................................................... 43
SECTION 2.16. Book-Entry Provisions for Global Notes.............................................. 43
SECTION 2.17. Special Transfer Provisions......................................................... 45
SECTION 2.18. Computation of Interest............................................................. 50
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.............................................. 50
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed........................................ 50
SECTION 3.03. Notice of Redemption................................................................ 50
SECTION 3.04. Effect of Notice of Redemption...................................................... 52
SECTION 3.05. Deposit of Redemption Price......................................................... 52
SECTION 3.06. Notes Redeemed in Part.............................................................. 52
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SECTION 3.07. Other Mandatory Redemption.......................................................... 53
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.................................................................... 53
SECTION 4.02. Maintenance of Office or Agency..................................................... 53
SECTION 4.03. Legal Existence..................................................................... 54
SECTION 4.04. [Reserved].......................................................................... 54
SECTION 4.05. Waiver of Stay, Extension or Usury Laws............................................. 54
SECTION 4.06. Compliance Certificate.............................................................. 54
SECTION 4.07. Payment of Taxes.................................................................... 55
SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.......................... 55
SECTION 4.09. Limitation on Indebtedness and Issuance of Preferred Stock.......................... 57
SECTION 4.10. Limitation on Restricted Payments................................................... 60
SECTION 4.11. Limitation on Liens................................................................. 65
SECTION 4.12. Limitation on Asset Sales........................................................... 66
SECTION 4.13. Limitation on Dividends and Other Payments Affecting Restricted Subsidiaries........ 69
SECTION 4.14. Limitation on Transactions with Affiliates.......................................... 71
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries............................. 74
SECTION 4.16. Payments for Consent................................................................ 74
SECTION 4.17. Reports............................................................................. 75
SECTION 4.18. Creation of Subsidiaries; Additional Subsidiary Guarantees.......................... 75
SECTION 4.19. Prohibition on Incurrence of Senior Subordinated Debt............................... 75
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets............................................ 76
SECTION 5.02. Successor Person Substituted........................................................ 77
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default................................................................... 78
SECTION 6.02. Acceleration of Maturity; Rescission................................................ 80
SECTION 6.03. Other Remedies...................................................................... 81
SECTION 6.04. Waiver of Past Defaults and Events of Default....................................... 81
SECTION 6.05. Control by Majority................................................................. 81
SECTION 6.06. Limitation on Suits................................................................. 82
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SECTION 6.07. No Personal Liability of Directors, Officers, Employees and Stockholders............ 82
SECTION 6.08. Rights of Holders To Receive Payment................................................ 83
SECTION 6.09. Collection Suit by Trustee.......................................................... 83
SECTION 6.10. Trustee May File Proofs of Claim.................................................... 83
SECTION 6.11. Priorities.......................................................................... 84
SECTION 6.12. Undertaking for Costs............................................................... 84
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee................................................................... 84
SECTION 7.02. Rights of Trustee................................................................... 86
SECTION 7.03. Individual Rights of Trustee........................................................ 87
SECTION 7.04. Trustee's Disclaimer................................................................ 87
SECTION 7.05. Notice of Defaults.................................................................. 87
SECTION 7.06. Reports by Trustee to Holders....................................................... 88
SECTION 7.07. Compensation and Indemnity.......................................................... 88
SECTION 7.08. Replacement of Trustee.............................................................. 89
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc..................................... 90
SECTION 7.10. Eligibility; Disqualification....................................................... 90
SECTION 7.11. Preferential Collection of Claims Against Company................................... 90
SECTION 7.12. Paying Agents....................................................................... 91
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders.......................................................... 91
SECTION 8.02. With Consent of Holders............................................................. 92
SECTION 8.03. Compliance with Trust Indenture Act................................................. 94
SECTION 8.04. Revocation and Effect of Consents................................................... 94
SECTION 8.05. Notation on or Exchange of Notes.................................................... 94
SECTION 8.06. Trustee To Sign Amendments, etc..................................................... 94
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance......................................... 95
SECTION 9.02. Conditions to Defeasance............................................................ 97
SECTION 9.03. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions..................................................... 98
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SECTION 9.04. Reinstatement....................................................................... 98
SECTION 9.05. Moneys Held by Paying Agent......................................................... 99
SECTION 9.06. Moneys Held by Trustee.............................................................. 99
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee........................................................................... 100
SECTION 10.02. Execution and Delivery of Guarantee................................................. 101
SECTION 10.03. Release of Subsidiary Guarantors.................................................... 101
SECTION 10.04. Waiver of Subrogation............................................................... 102
SECTION 10.05. Notice to Trustee................................................................... 103
SECTION 10.06. Subordination of Guarantee.......................................................... 103
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Notes Subordinated to Senior Debt................................................... 103
SECTION 11.02. Suspension of Payment When Senior Debt Is in Default................................ 104
SECTION 11.03. Obligations Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.............................. 106
SECTION 11.04. Payments May Be Paid Prior to Dissolution........................................... 107
SECTION 11.05. Holders To Be Subrogated to Rights of Holders of Senior Debt........................ 108
SECTION 11.06. Obligations of the Company Unconditional............................................ 108
SECTION 11.07. Reliance on Judicial Order or Certificate of Liquidating Agent...................... 109
SECTION 11.08. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.............................................. 109
SECTION 11.09. Holders Authorize Trustee To Effectuate Subordination of Obligations................ 110
SECTION 11.10. This Article Eleven Not To Prevent Events of Default................................ 110
SECTION 11.11. Amendments or Modifications to Article Eleven....................................... 110
SECTION 11.12. Notice to Trustee; Rights of Trustee and Paying Agent............................... 111
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls........................................................ 111
SECTION 12.02. Notices............................................................................. 112
SECTION 12.03. Communications by Holders with Other Holders........................................ 113
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.................................. 113
SECTION 12.05. Statements Required in Certificate and Opinion...................................... 114
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SECTION 12.06. Rules by Trustee and Agents......................................................... 114
SECTION 12.07. Legal Holidays...................................................................... 114
SECTION 12.08. Governing Law....................................................................... 114
SECTION 12.09. No Adverse Interpretation of Other Agreements....................................... 115
SECTION 12.10. Successors.......................................................................... 115
SECTION 12.11. Multiple Counterparts............................................................... 115
SECTION 12.12. Table of Contents, Headings, etc.................................................... 115
SECTION 12.13. Separability........................................................................ 115
EXHIBITS
Exhibit A Form of Note........................................................................ A-1
Exhibit B Form of Legend for Rule 144A Global Notes and Other Notes
That Are Restricted Notes.......................................................... B-1
Exhibit C Form of Legend for Temporary Regulation S Global Note............................... C-1
Exhibit D Form of Legend for Global Note...................................................... D-1
Exhibit E Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S................................................. E-1
Exhibit F Form of Guarantee................................................................... F-1
Exhibit G Form of Certificate from Acquiring Institutional Accredited Investor................ G-1
Exhibit H Form of Legend for Temporary Regulation S Global Note............................... H-1
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INDENTURE, dated as of September 29, 2003, by and among SEMINIS
VEGETABLE SEEDS, INC., a California corporation, as issuer (the "Company"), the
Guarantors set forth on the signature pages hereto and Wells Fargo Bank,
National Association, a national banking association organized under the laws of
the United States of America, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning set forth in Section 6.02(a).
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Restricted Subsidiary
of such specified Person, and in each case such Indebtedness was not
incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Acquisition Transactions" means the acquisition by the
Principals, Alfonso Romo Garza and certain of his Affiliates, certain members of
management of the Company and Holdings and certain other parties of Equity
Interests in Holdings and the other transactions, payments (including the
repayment of indebtedness) and agreements set forth in or contemplated by the
Acquisition Transactions Agreements and as described in the Offering Memorandum
(including, without limitation, the repurchase or redemption of the Class B
Redeemable Preferred Stock of Holdings and the payment of accrued dividends
thereon through the date of repurchase or redemption.
"Acquisition Transactions Agreements" means the amended and
restated exchange agreement, an agreement and plan of merger, the contribution
agreement, the stock purchase agreement, the stockholders' agreement, the
co-investment rights agreements contemplated by the stock purchase agreement and
the stockholders' agreement, the indemnification agreement, the voting
agreement, the management fee letter agreement, the employment agreements and
any other agreement implementing the Acquisition Transactions, between or among,
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as the case may be, Holdings, Seminis Merger Corp., Seminis Acquisition LLC, Fox
Paine and certain of its Affiliates, Alfonso Romo Garza and certain of his
Affiliates, certain creditors of an Affiliate of Savia S.A. de C.V., certain
individuals that are or shall become members of management of the Company and
Holdings, and the other parties thereto, as in effect on the Issue Date or, if
any such agreement is not in effect on the Issue Date, as such agreement may
become in effect in accordance with the terms of the other Acquisition
Transactions Agreements that are in effect on the Issue Date.
"Additional Interest" means the Additional Interest payable
pursuant to Section 4 of the Registration Rights Agreement.
"Additional Notes" has the meaning set forth in Section 2.03.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, means 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. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings. Notwithstanding the foregoing, no Person (other than the Company or
any Subsidiary of the Company) in whom a Receivables Subsidiary makes an
Investment in connection with a Qualified Receivables Transaction shall be
deemed to be an Affiliate of the Company or any of its Subsidiaries solely by
reason of such investment.
"Affiliate Transaction" has the meaning set forth in Section
4.14(a).
"Agent" means any Registrar, Paying Agent, or agent for service
or notices and demands.
"Agent Members" has the meaning set forth in Section 2.16(a).
"amend" means amend, modify, supplement, restate or amend and
restate, including successively; and "amending" and "amended" have correlative
meanings.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights, other than sales or other transfers of inventory or
germplasm in the ordinary course of business; provided that the sale,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole
shall be governed by Section 4.08 and/or Section 5.01, to the extent
applicable and not by the provisions of Section 4.12; and
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(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Restricted Subsidiaries (other than directors' qualifying shares or
shares or interests required to be held by foreign nationals to the
extent mandated by applicable law).
Notwithstanding the preceding, none of the following items shall
be deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets having a Fair Market Value of less than
$2,500,000;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an issuance or sale of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to another Restricted
Subsidiary of the Company;
(4) the sale or lease of equipment, products, services,
inventory or accounts receivable in the ordinary course of business;
(5) the creation of Liens permitted by this Indenture;
(6) transfers of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables Transaction"
(or a fractional undivided interest therein) by a Receivables
Subsidiary in a Qualified Receivables Transaction;
(7) the sale or other disposition of cash or Cash Equivalents;
(8) the exchange of assets held by the Company or a Restricted
Subsidiary for assets held by any Person or entity, provided that (i)
the assets received by the Company or such Restricted Subsidiary in any
such exchange shall immediately constitute, be part of, or be used in a
Permitted Business by the Company or such Restricted Subsidiary; and
(ii) any such assets received are of a comparable Fair Market Value to
the assets exchanged as determined in good faith by the Company;
(9) a Restricted Payment that does not violate, or a Permitted
Investment that is permitted by, Section 4.10;
(10) the surrender or waiver of contractual rights or the
settlement, release or surrender of contract, tort or other claims of
any kind;
(11) the grant in the ordinary course of business of any
license of patents, trademarks, registrations therefor, know-how and
other intellectual property; and
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(12) any disposition of obsolete, worn-out or surplus
property.
"Asset Sale Offer" has the meaning set forth in Section 4.12(c).
"Authentication Order" has the meaning set fort in Section 2.03.
"Bankruptcy Law" means Title 11, United States Code, or any
similar U.S. Federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Issue Date. The
terms "Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
secretary or an assistant secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized or
required by law to close.
"Calculation Date" has the meaning set forth in the definition of
"Leverage Ratio."
"Capital Lease Obligation" means, at the time any determination
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
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(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or insured by
the U.S. government or any agency or instrumentality of the U.S.
government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more
than six months from the date of acquisition;
(2) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any lender party to a Credit Facility or with
any domestic commercial bank having capital and surplus in excess of
$500,000,000;
(3) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (1) and (2)
above entered into with any financial institution meeting the
qualifications specified in clause (2) above;
(4) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and in each case maturing within one year
after the date of acquisition;
(5) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through
(4) of this definition; and
(6) in the case of any Restricted Subsidiary organized or having its
principal place of business outside of the United States, investments
denominated in the currency of the jurisdiction in which such Restricted
Subsidiary is organized or has its principal place of business which are
similar to the items specified in clauses (1), (2), (3) and (4).
"Certificated Notes" has the meaning set forth in Section 2.02:
"Change of Control" means the occurrence of any of the following:
(1) prior to such time as there shall have been consummated a
Qualified IPO, the occurrence of any of the following: (i) the Permitted
Holders shall cease to control the largest percentage of the voting power
of the Voting Stock of Holdings (as compared to any other "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act)) and counting Alfonso Romo Garza ("Mr. Romo") and his
Affiliates
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as a single "group" as used in Sections 13(d) and 14(d) of the Exchange
Act) or (ii) the Permitted Holders shall cease to control at least 40% of
the voting power of the Voting Stock of Holdings;
(2) from and after the time that there shall have been consummated a
Qualified IPO, the occurrence of any of the following: (i) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Permitted Holders, is or becomes the
Beneficial Owner, directly or indirectly, of 35% or more of the voting
power of the Voting Stock of Holdings (counting Mr. Romo and his
Affiliates as a "group" as used in Sections 13(d) and 14(d) of the
Exchange Act) and the Permitted Holders cease to control the largest
percentage of the voting power of the Voting Stock of Holdings; or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of Holdings
(together with any new directors whose election to such Board of Directors
or whose nomination for election was approved by a vote of at least 66
2/3% of the directors of Holdings then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute at least a majority of the Board of Directors of Holdings;
(3) at any time, Holdings ceases to own, beneficially, 100% of the
Voting Stock of the Company;
(4) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Company and the Restricted Subsidiaries, taken
as a whole, to any "person" (as that term is used in Section 13(d)(3) of
the Exchange Act) other than to the Permitted Holders; or
(5) the adoption of a plan relating to the liquidation or
dissolution of the Company.
"Change of Control Offer" has the meaning set forth in Section
4.08(a).
"Change of Control Payment Date" has the meaning set forth in
Section 4.08(a).
"Commission" means the U.S. Securities and Exchange Commission.
"Company" means the party named as such in the introduction to this
Indenture until a successor replaces such party pursuant to Article Five
and thereafter means the successor.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period
adjusted as follows:
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(1) plus provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent that
such provision for taxes was deducted in computing such Consolidated Net
Income;
(2) plus consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letters of credit or bankers' acceptance financings, and net of
the effect of all payments made or received pursuant to Hedging
Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income;
(3) plus depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Restricted Subsidiaries for such period to the extent
that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income;
(4) plus all one-time fees, costs, expenses (including cash
compensation payments), in each case incurred by the Company and its
Restricted Subsidiaries (or the company or business being acquired) (x) in
connection with the Acquisition Transactions and (y) in connection with or
resulting from any other merger, consolidation or acquisition occurring
after the Issue Date in an aggregate amount not to exceed seven percent of
the total enterprise value of such merger, consolidation or acquisition;
(5) plus unrealized non-cash losses resulting from foreign currency
balance sheet adjustments required by GAAP to the extent such losses were
deducted in computing such Consolidated Net Income;
(6) minus non-cash items increasing such Consolidated Net Income for
such period, other than the accrual of revenue in the ordinary course of
business;
(7) plus all amounts deducted in arriving at such Consolidated Net
Income for such period in respect of severance packages payable in
connection with the termination of any officer, director or employee of
Holdings or any of its Subsidiaries;
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(8) plus, in the case of non-cash minority interest loss, the amount
of such loss for such period, and minus, in the case of non-cash minority
interest income, the amount of such income for such period;
(9) plus, (i) in any fiscal year, payments of the advisory fees (but
not expense reimbursement) required to be paid by Holdings pursuant to the
Management Fee Letter, and (ii) reasonable out-of-pocket expenses of Fox
Paine (as defined in the Management Fee Letter) required to be paid by
Holdings pursuant to the terms of the Management Fee Letter;
(10) plus, to the extent included in Consolidated Net Income,
non-cash restricted stock award charges incurred in Holdings' fiscal year
ended September 30, 2002;
in each case, on a consolidated basis and determined in accordance with GAAP.
Consolidated Cash Flow shall not include the impact of any purchase accounting
adjustments which may be allocated to (x) in-process research and development in
such Person's income statement and (y) inventory in such Person's balance sheet
to the extent such adjustments reflect differences between the historical
carrying amounts and the Fair Market Value of the inventory, and, consistent
with such treatment, when the affected inventory is sold, Consolidated Cash Flow
shall be calculated as if such purchase accounting adjustments had not been
made.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person and the loss of any such Person shall
only be included to the extent the Company or a Restricted Subsidiary
funds such loss;
(2) the Net Income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, except that
the Net Income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of
cash which actually has been or could have been distributed in cash by
such Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (by loans,
advances, intercompany transfers or otherwise) (subject, in the case of a
dividend or other distribution which could have been
-9-
paid to another Restricted Subsidiary, to the limitations contained in
this clause (2) with respect to such Restricted Subsidiary);
(3) the cumulative effect of a change in accounting principles shall
be excluded;
(4) the non-cash impairment loss of such Person or its Restricted
Subsidiaries relating to goodwill or other non-amortizing intangible asset
shall be excluded; and
(5) corporate overhead expenses payable by Holdings described in
Section 4.10(b)(10)(y), the funds for which are provided by the Company
and/or its Restricted Subsidiaries shall be deducted in calculating the
Consolidated Net Income of the Company and its Restricted Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 707 Wilshire Blvd., 17th Floor, Los
Angeles, California 90017, Attention: Corporate Trust Department, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
"Covenant Defeasance" has the meaning set forth in Section 9.01(b).
"Credit Agreement" means that certain Credit Agreement entered into
in September 2003, by and among the Company, as borrower, the guarantors party
thereto, Citicorp North America, Inc., as administrative agent, Harris Trust and
Savings Bank, as syndication agent, and the other agents and lenders party
thereto, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional and other investors) from time to time.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks, investment banks, insurance companies, mutual funds and/or
other institutional lenders or debt investors providing for revolving credit
loans, term loans, receivables or inventory financings (including through the
sale of receivables or inventory to such lenders) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced (whether upon
or after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional and other investors) in whole or in part from
time to time, whether by the same or any other lender or group of lenders;
provided, however, that "Credit Facilities" shall not include the South Korean
Loans.
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"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depositary by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Senior Debt" means:
(1) Indebtedness under or in respect of the Credit Agreement; and
(2) any other Indebtedness constituting Senior Debt which, at the
time of determination, has an aggregate principal amount of at least
$25,000,000 and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature, provided that if such
Capital Stock is issued pursuant to any plan for the benefit of employees of
Holdings, the Company or its Restricted Subsidiaries, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the
Capital Stock have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale or upon or
related to termination of employment, death or disability (or which right was
otherwise created in connection with an employment arrangement) shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.10.
"Distribution Compliance Period" means the 40 day distribution
compliance period as defined in Regulation S which, in the case of the Initial
Notes, ends November 9, 2003.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia.
-11-
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private sale or issuance of
Capital Stock (other than Disqualified Stock) of the Company or Holdings or any
capital contribution to Holdings; provided that, in the event of an Equity
Offering by Holdings or any capital contribution to Holdings, Holdings
contributes to the capital of the Company the portion of the net cash proceeds
of such Equity Offering or capital contribution necessary to pay the aggregate
redemption price of the Notes to be redeemed pursuant to Section 3.01.
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Proceeds" has the meaning set forth in Section 4.12(c).
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the exchange and issuance by the Company,
pursuant to a Registration Rights Agreement, of a principal amount of Exchange
Securities (which will be registered pursuant to the Exchange Offer Registration
Statement) equal to the outstanding principal amount of Initial Notes or
Additional Notes, as the case may be, tendered by Holders thereof in connection
with such exchange and issuance.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Exchange Securities" has the meaning set forth in the Registration
Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company and
its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement
and the South Korean Loans) in existence on the Issue Date until such amounts
are permanently repaid and Indebtedness under the Oxnard Mortgage in an
aggregate amount not to exceed $20,000,000.
"Fair Market Value" means, with respect to any asset or Property,
the price which would have been negotiated in an arm's-length transaction,
between a willing seller and a willing and able buyer, neither of whom is under
pressure or compulsion to complete the transaction.
"Fox Paine" means Fox Paine & Company, LLC, a Delaware limited
liability company.
"GAAP" means generally accepted accounting principles in the United
States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the
-12-
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, as in effect on the Issue Date.
"Global Notes" has the meaning set forth in Section 2.02.
"Global Note Legend" means the legend set forth in Exhibit D.
"Government Securities" means any security issued or guaranteed as
to principal or interest by the United States, or by a Person controlled or
supervised by and acting as an instrumentality of the government of the United
States pursuant to the authority granted by the Congress of the United States or
any certificate of deposit for any of the foregoing.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business, direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness.
"Guarantees" as used herein also refers to the guarantee of the Notes pursuant
to the terms of Article Ten and the related guarantee endorsed on the Notes by
the Guarantors.
"Guarantor Senior Debt" means, with respect to any Guarantor, the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of, or guaranteed by, a
Guarantor, whether outstanding on the Issue Date or thereafter created, incurred
or assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Guarantor. Without limiting the generality of
the foregoing, "Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
(x) all monetary obligations of every nature of such Guarantor
under, or with respect to, the Credit Facilities, including, without
limitation, obligations to pay principal, premium and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (and guarantees thereof); and
(y) all Hedging Obligations (and guarantees thereof);
in each case whether outstanding on the Issue Date or thereafter incurred.
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Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include:
(1) any Indebtedness of Holdings or a Subsidiary Guarantor to the
Company or a Subsidiary of such Subsidiary Guarantor;
(2) Indebtedness to, or guaranteed on behalf of, any shareholder,
director, officer or employee of such Guarantor or any Subsidiary of such
Guarantor (including, without limitation, amounts owed for compensation)
other than a shareholder who is also a lender (or an Affiliate of a
lender) under the Credit Agreement;
(3) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Stock;
(5) any liability for federal, foreign, state, local or other taxes
owed or owing by such Guarantor;
(6) that portion of any Indebtedness incurred in violation of
Section 4.09 (but, as to any such obligation, no such violation shall be
deemed to exist for purposes of this clause (6) if the holder(s) of such
obligation or their representative shall have received an Officers'
Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on
which the initial borrowing thereunder is made would not) violate Section
4.09);
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to such Guarantor or the Company; and
(8) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of such Guarantor.
"Guarantors" means Holdings and the Subsidiary Guarantors.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements and other agreements or arrangements
designed to protect such Person against fluctuations in interest rates;
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(2) currency exchange swap agreements, currency exchange cap
agreements, currency exchange collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in
currency exchange values;
(3) commodity swap agreements, commodity cap agreements, commodity
collar agreements and other agreements or arrangements designed to protect
such Person against fluctuations in commodity prices; and
(4) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Register.
"Holdings" means Seminis, Inc., a Delaware corporation.
"incur" has the meaning set forth in Section 4.09(a).
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase
price of any property due more than six months after such property is
acquired, except any such balance that constitutes an accrued expense or
trade payable (other than any contingent payment obligations of a Person
based on the performance of a business or asset or Capital Stock purchased
by such Person); or
(6) representing the net loss value of any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any indebtedness of any other Person.
-15-
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) in connection with any Qualified Receivables Transaction, the
Securitization Financing Amount; and
(3) the principal amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30 days past due, in the
case of any other Indebtedness.
In addition, for the purpose of avoiding duplication in calculating the
outstanding principal amount of Indebtedness for purposes of Section 4.09,
Indebtedness arising solely by reason of the existence of a Lien to secure other
Indebtedness permitted to be incurred under Section 4.09 shall not be considered
incremental Indebtedness.
Indebtedness shall not include the obligations of any Person (A)
resulting from the endorsement of negotiable instruments for collection or
deposit in the ordinary course of business, (B) under stand-by letters of credit
to the extent collateralized by cash or Cash Equivalents or (C) resulting from
representations, warranties, covenants and indemnities given by such Person that
are reasonably customary for sellers or transferors in an accounts receivable
securitization transaction.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Notes" means the Company's 10 -1/4 % Senior Subordinated
Notes, issued on the Issue Date, but not including any Exchange Securities
issued in exchange therefor.
"Initial Purchasers" means Citigroup Global Markets Inc., CIBC World
Markets Corp., Harris Nesbitt Corp. and Rabo Securities USA, Inc.
"interest" means, with respect to the Notes, interest and Additional
Interest.
"Interest Payment Date" means April 1 and October 1 of each year.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business and excluding
advances made to customers and suppliers with respect to current or anticipated
purchases of inventory in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or
-16-
would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the Fair Market Value of the Company's Investments
in such Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.10(c).
"Issue Date" means September 29, 2003.
"Legal Defeasance" has the meaning set forth in Section 9.01(b).
"Legal Holiday" has the meaning set forth in Section 12.07.
"Leverage Ratio" means with respect to any specified Person for any
period, the ratio of Total Indebtedness of such Person and its Restricted
Subsidiaries as of the last day of the applicable Reference Period to the
Consolidated Cash Flow of such Person and its Restricted Subsidiaries for such
Reference Period. In the event that the specified Person or any of its
Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or
redeems any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems Disqualified Stock or preferred stock subsequent
to the commencement of the period for which the Leverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Leverage Ratio is made (the "Calculation Date"), then the
Leverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of Disqualified Stock or preferred
stock, and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Leverage Ratio:
(1) (x) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions,
during the Reference Period or subsequent to such Reference Period
and on or prior to the Calculation Date will be given pro forma
effect as if they had occurred on the first day of the Reference
Period, and for purposes of determining the pro forma effects of
such acquisition, Consolidated Cash Flow will be calculated to give
pro forma effect to cost savings and operating expense reductions
related to such acquisition that have occurred or are reasonably
expected to occur within the 12 months following such acquisition,
in the reasonable judgment of the chief financial officer of the
specified Person; and (y) in addition, with respect to any
acquisition made by the specified Person or any of its Restricted
Subsidiaries during either of the two fiscal quarters immediately
preceding such Reference Period, Consolidated Cash Flow will also be
cal-
-17-
culated to give pro forma effect to cost savings and operating
expense reductions expected to result from steps taken during such
Reference Period (but on or prior to the first anniversary of such
acquisition) as if such steps were taken on the first day of such
Reference Period (regardless, with respect to each of clauses (x)
and (y) hereof, of whether those cost savings or operating expense
reductions could then be reflected in pro forma financial statements
in accordance with Regulation S-X promulgated under the Securities
Act or any other regulation or policy of the Commission related
thereto); provided, that in either such case, adjustments are set
forth in an officers' certificate signed by the specified Person's
chief executive officer and chief financial officer which states (i)
the amounts of such adjustment or adjustments, (ii) that such
adjustment or adjustments are based on the reasonable good faith
beliefs of the officers executing such officers' certificate at the
time of such execution and (iii) that any related Incurrence of
Indebtedness is permitted pursuant to this Indenture;
(2) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded;
(3) if, since the beginning of the applicable four quarter period, any
Person that became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning of
such four quarter period shall have made any acquisition,
disposition, merger or consolidation or has been determined to be a
discontinued operation that would have required adjustment pursuant
to this definition, then the Leverage Ratio shall be calculated
giving pro forma effect thereto for such period as if such
acquisition, disposition, merger or consolidation or determination
of a discontinued operation had occurred at the beginning of the
applicable four-quarter period;
(4) any Person that is a Restricted Subsidiary of the Company on the
Calculation Date will be deemed to have been a Restricted Subsidiary
at all times during the applicable four-quarter reference period;
(5) any Person that is not a Restricted Subsidiary of the Company on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during the applicable four-quarter reference
period; and
(6) if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the
entire applicable four-quarter reference period (taking into account
any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation Date
in excess of 12 months).
-18-
"Leverage Test" means, for any date during each period set forth
below, the ratio set forth opposite such period:
Period Ratio
------ -----
Issue Date through September 30, 2004 5.25 to 1
October 1, 2004 through September 30, 2005 4.75 to 1
October 1, 2005 through September 30, 2006 4.25 to 1
October 1, 2006 and thereafter 4.00 to 1
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest and, except in connection with any Qualified Receivables Transaction,
any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
"Management Fee Letter" means that certain letter agreement dated as
of May 30, 2003 among Fox Paine & Company, LLC, Desarrollo Consolidado de
Negocios, S.A. de C.V. and Seminis Merger Corp. as in effect on the Issue Date.
"Marketable Securities" means publicly traded debt or equity
securities that are listed for trading on a national securities exchange or
Nasdaq and that were issued by a corporation whose debt securities are rated in
one of the three highest categories by either S&P or Moody's.
"Maturity Date" when used with respect to any Note, means the date
on which the principal amount of such Note becomes due and payable as therein or
herein provided.
"Moody's" means Moody's Investors Service, Inc. or any successor
rating agency.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes
on such gain or loss, realized in connection with: (a) any Asset Sale
(without regard to the $2,500,000
-19-
limitation set forth in the definition thereof); or (b) the disposition of
any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(2) any extraordinary or nonrecurring gain or loss, together with
any related provision for taxes on such extraordinary or nonrecurring gain
or loss as determined in the good faith judgment of the chief financial
officer of Holdings.
"Net Proceeds" means the aggregate cash proceeds received (when
actually received) by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, sales
commissions, recording fees, title transfer fees, appraiser fees, cost of
preparation of assets for sale and any relocation expenses incurred as a result
of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each
case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Payment Default" has the meaning set forth in Section
11.02(a)(2).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness)
(other than pledges of Equity Interests of Unrestricted Subsidiaries for
the benefit of lenders of Unrestricted Subsidiaries), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the
lender; and
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness (other than the Notes) of the Company
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or
payable prior to its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 10-1/4 % Senior Subordinated Notes due 2013
issued by the Company, including, without limitation, the Exchange Securities,
treated as a single class of se-
-20-
curities, as amended from time to time in accordance with the terms hereof, that
are issued pursuant to this Indenture.
"Notice of Default" shall have the meaning set forth in Section
6.01(4).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offer Amount" has the meaning set forth in Section 4.12(e).
"Offering Memorandum" means the offering memorandum, dated September
22, 2003, of the Company and the Guarantors relating to the offering of the
Notes and the Guarantees.
"Offer Period" has the meaning set forth in Section 4.12(e).
"Officer" means the Chief Executive Officer, the President, the
Chief Financial Officer or any Executive Senior Vice President, Senior Vice
President, Vice President, the Treasurer or the Secretary of the specified
Person.
"Officers' Certificate" means a certificate signed by an Officer of
the specified Person and delivered to the Trustee.
"Offshore Note Exchange Date" has the meaning set forth in Section
2.02.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to Holdings, the Company, a Subsidiary Guarantor or the Trustee.
"Oxnard Mortgage" means a mortgage, whether arising before or after
the Issue Date, on the Company's headquarters located in Oxnard, California.
"Paying Agent" has the meaning set forth in Section 2.04.
"Payment Blockage Notice" has the meaning set forth in Section
11.02(a)(2).
"Payment Default" has the meaning set forth in Section 6.01(5)(A).
"Permanent Regulation S Global Note" has the meaning set forth in
Section 2.02.
"Permitted Business" means any business in which the Company and its
Subsidiaries were engaged on the Issue Date, and any business incidental,
reasonably related, comple-
-21-
mentary or ancillary thereto, or which is a reasonable extension thereof as
determined in good faith by the Board of Directors of the Company.
"Permitted Debt" has the meaning set forth in Section 4.09(c).
"Permitted Holders" means the Principals and their Related Parties.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of
the Company;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; 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;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.12;
(5) any Investment or acquisition of assets solely in exchange for
the issuance of Equity Interests (other than Disqualified Stock) of the
Company or Holdings or out of the proceeds of a substantially concurrent
issuance or sale of Equity Interests (other than Disqualified Stock) of
the Company or Holdings;
(6) any Investments received in compromise of obligations of (A)
trade creditors or customers that were incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of, or other foreclosure
with respect to, any trade creditor or customer, or (B) litigation,
arbitration or other similar disputes;
(7) Hedging Obligations;
(8) repurchases of the Notes;
(9) Investments consisting of non-cash consideration received in the
form of securities, notes or similar obligations in connection with
dispositions of obsolete, worn out or surplus assets or property permitted
pursuant to this Indenture;
-22-
(10) advances, loans or extensions of credit to suppliers in the
ordinary course of business by the Company or any of its Restricted
Subsidiaries;
(11) Investments of any Person (other than Indebtedness of such
Person) in existence at the time such Person becomes a Subsidiary of the
Company; provided such Investment was not made in connection with or in
anticipation of such Person becoming a Subsidiary of the Company;
(12) any Investment consisting of a guarantee permitted under
Section 4.09;
(13) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(14) advances to employees for moving, travel and entertainment,
payroll advances and other similar advances to cover matters that are
expected at the time of such advances to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(15) loans and advances to employees, officers and directors of
Holdings, the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of
$3,000,000 in aggregate principal amount at any time outstanding;
(16) any Investment existing on the Issue Date and any renewal or
replacement thereof on terms and conditions not materially less favorable
to the Holders of the Notes than the terms of the Investment being
replaced;
(17) Investments in prepaid expenses, negotiable instruments held
for collection and lease, utility and workers' compensation, performance
and other similar deposits;
(18) purchases of shares of any non-wholly owned Subsidiary of the
Company from any Person other than Holdings, the Company or any Subsidiary
of the Company;
(19) other Investments in any Person having an aggregate Fair Market
Value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (19), that are at the
time outstanding not to exceed $15,000,000; and
(20) any Investment by the Company or a Restricted Subsidiary in a
Receivables Subsidiary or any Investment by a Receivables Subsidiary in
any other Person in
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connection with a Qualified Receivables Transaction; provided, that the
foregoing Investment is in the form of a note or other instrument that the
Receivables Subsidiary or other Person is required to repay as soon as
practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities
that are not Affiliates of the Company entered into as part of a Qualified
Receivables Transaction; and provided further, that the foregoing
Investment is, in the good faith determination of the Board of Directors
of the Company, necessary or advisable to effect the applicable Qualified
Receivables Transaction.
"Permitted Junior Securities" means:
(1) Equity Interests in the Company or any Guarantor; or
(2) debt securities that are subordinated to (a) all Senior Debt and
Guarantor Senior Debt and (b) any debt securities issued in exchange for
Senior Debt to substantially the same extent as, or to a greater extent
than, the Notes and the Guarantees are subordinated to Senior Debt and
Guarantor Senior Debt under this Indenture.
"Permitted Liens" means:
(1) Liens on assets of the Company or any Restricted Subsidiary
securing Indebtedness or other Obligations under Credit Facilities or
other Senior Debt or Guarantor Senior Debt that was permitted by the terms
of this Indenture to be incurred;
(2) Liens securing Acquired Debt that was permitted to be incurred
pursuant to Section 4.09, provided that such Liens were not created in
connection with or in contemplation of such acquisition or merger
transaction pursuant to which the Acquired Debt was incurred and do not
extend to any assets other than those acquired or those of the Person
merged into or consolidated with the Company or the Restricted Subsidiary;
(3) (a) Liens securing Indebtedness that was incurred pursuant to
Section 4.09(c)(11); or (b) Liens securing Indebtedness that was incurred
by non-Guarantor Restricted Subsidiaries (other than Seminis Korea or any
of its Restricted Subsidiaries) pursuant to such Section;
(4) Liens in favor of the Company and its Restricted Subsidiaries;
(5) Liens to secure Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each
case, incurred for the purpose of financing all or any part of the
purchase price or cost of design, construction, installation or
improvement of property, plant or equipment used in the business of the
Company or such Restricted Subsidiary, covering only the assets acquired
with or financed by such Indebtedness;
-24-
(6) Liens on property or shares of Capital Stock of a Person
existing at the time such Person is merged with or into or consolidated
with the Company or any Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or the Subsidiary;
(7) Liens on property or shares of Capital Stock existing at the
time of acquisition of the property or shares of Capital Stock by the
Company or any Subsidiary of the Company; provided that such Liens were in
existence prior to the contemplation of such acquisition;
(8) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(9) Liens existing on the Issue Date;
(10) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(11) pledges or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security legislation;
(12) Liens securing Indebtedness under Hedging Obligations;
(13) Liens securing Indebtedness of the Company or any of its
Restricted Subsidiaries with respect to obligations that do not exceed
$10,000,000 at any one time outstanding;
(14) Liens on goods and documents of title to goods arising in the
ordinary course of letter of credit transactions entered into in the
ordinary course of business;
(15) Liens securing Permitted Refinancing Indebtedness permitted to
be incurred under this Indenture to refinance Indebtedness secured by a
Lien permitted under this Indenture; provided, however, that such new Lien
shall be limited to all or part of the same property that secured the
original Lien (plus improvements on or replacements of such property) and
the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness at the time the original
Lien became a Permitted
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Lien under this Indenture, and (ii) an amount necessary to pay any fees,
commissions and expenses, including premiums, related to such Permitted
Refinancing Indebtedness;
(16) (a) Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the
ordinary course of business;
(b) easements, rights of way, zoning restrictions,
reservations, encroachments and other similar encumbrances in respect of
real property;
(c) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired;
(d) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
banker's acceptances issued or credited for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(e) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(f) Liens arising out of consignment or similar arrangements
for the sale of goods in the ordinary course of business;
(g) any interest or title of a lessor in the property subject
to any lease other than a capital lease;
(h) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(i) Liens arising from filing Uniform Commercial Code financing
statements regarding leases, provided that such Liens do not extend to any
property or assets which are not leased property subject to such leases or
subleases; and
(j) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with
the importation of goods;
-26-
(17) Liens on the assets of Unrestricted Subsidiaries, or on the
Equity Interests of Unrestricted Subsidiaries, that secure Non-Recourse
Debt of Unrestricted Subsidiaries;
(18) Liens on assets of a Receivables Subsidiary incurred in
connection with a Qualified Receivables Transaction; and
(19) Liens created in substitution of or as replacements for any
Liens permitted by the preceding clauses (1) through (18) and this clause
(19); provided, however, that, based on a good faith determination of an
officer of the Company, the Fair Market Value of the assets encumbered
under any such substitute or replacement Lien is not greater than the Fair
Market Value of the assets encumbered by the otherwise permitted Lien
which is being replaced.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses, fees,
commissions and premiums incurred in connection therewith) except that the
principal amount of such Permitted Refinancing Indebtedness in respect of
the Oxnard Mortgage may be increased to up to $20,000,000;
(2) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by any
Restricted Subsidiary of the Company who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PII" means PII, LLC, a Delaware limited liability company.
"Principals" means investment entities managed or controlled by Fox
Paine or its Affiliates.
"Private Placement Legend" means the legend initially set forth on
the Rule 144A Global Notes and other Notes that are Restricted Notes in the form
set forth in Exhibit B or the legend initially set forth on the Temporary
Regulation S Global Note in the form set forth in Exhibit C, as the case may be.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Purchase Date" has the meaning set forth in Section 4.12(d).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Qualified IPO" means one or more underwritten public offerings of
common equity securities of Holdings pursuant to an effective registration
statement filed under the Securities Act (excluding registration statements
filed on Form S-8, or any similar successor form) which offerings generate at
least $100,000,000 of gross proceeds to Holdings and which results in the
listing of the common equity securities of Holdings on a national securities
exchange or authorization for quotation on the Nasdaq National Market System.
"Qualified Receivables Transaction" means any transaction or series
of transactions that may be entered into by the Company or any of its Restricted
Subsidiaries in which the Company or any of its Restricted Subsidiaries may
sell, convey or otherwise transfer to (1) a Receivables Subsidiary (in the case
of a transfer by the Company or any of its Restricted Subsidiaries) and (2) any
other Person (in the case of a transfer by a Receivables Subsidiary), or may
grant a security interest in, any accounts receivable (whether now existing or
arising in the future) of the Company or any of its Restricted Subsidiaries, and
any related assets, including all collateral securing such accounts receivable,
all contracts and all guarantees or other obligations in respect of such
accounts receivable, proceeds of such accounts receivable and other assets
(including contract rights) which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.
-28-
"Receivables Subsidiary" means a Subsidiary of the Company that engages in
no activities other than in connection with the financing of accounts receivable
and that is designated by the Company's Board of Directors (as provided below)
as a Receivables Subsidiary:
(1) no portion of the Indebtedness or any other Obligations (contingent or
otherwise) of which
(a) is guaranteed by the Company or any Restricted Subsidiary of the
Company (excluding guarantees of Obligations (other than the principal of,
and interest on, Indebtedness) pursuant to representations, warranties,
covenants and indemnities entered into in the ordinary course of business
in connection with a Qualified Receivables Transaction),
(b) is recourse to or obligates the Company or any Restricted
Subsidiary of the Company in any way other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction, or
(c) subjects any property or asset of the Company or of any Restricted
Subsidiary of the Company (other than accounts receivable and related
assets as provided in the definition of "Qualified Receivables
Transaction"), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to representations, warranties,
covenants and indemnities entered into in the ordinary course of business
in connection with a Qualified Receivables Transaction;
(2) with which neither the Company nor any Restricted Subsidiary of the
Company has any material contract, agreement, arrangement or understanding
other than on terms no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company, other than fees payable in the ordinary course
of business in connection with servicing accounts receivable; and
(3) with which neither the Company nor any Restricted Subsidiary of the
Company has any obligation to maintain or preserve such Restricted
Subsidiary's financial condition or cause such Restricted Subsidiary to
achieve certain levels of operating results.
Any such designation by the Company's Board of Directors shall be
evidenced to the Trustee by filing with the Trustee a Board Resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the preceding conditions.
"Redemption Date" when used with respect to any Note to be redeemed
pursuant to paragraph 5 of the Notes means the date fixed for such redemption
pursuant to the terms of the
-29-
Notes or, if applicable, such later date as such fixed date may be delayed until
any applicable conditions are satisfied.
"Reference Period" has the meaning set forth in Section 4.09(a).
"refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, repurchase, redeem, defease or retire, or to issue
other Indebtedness, in exchange or replacement for, such Indebtedness.
"refinanced" and "refinancing" shall have correlative meanings.
"Registrar" has the meaning set forth in Section 2.04.
"Register" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Company and the Guarantors and the
other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements among the Company
and the Guarantors and the other parties thereto, as such agreements may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Notes" has the meaning set forth in Section 2.02.
"Regulation S Physical Notes" has the meaning set forth in Section 2.02.
"Related Party" means:
(1) any controlling stockholder, majority-owned Subsidiary or immediate
family member (in the case of an individual) of any one or more Principals;
or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially owning
a majority controlling interest of which consist of any one or more
Principals and/or such other Persons referred to in the immediately preceding
clause (1).
"Representative" means any agent or representative in respect of any
Designated Senior Debt; provided that if, and for so long as, any Designated
Senior Debt lacks such representative, then the Representative for such
Designated Senior Debt shall at all times constitute the holders of a majority
in outstanding principal amount of such Designated Senior Debt.
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"Resale Restriction Termination Date" means, with respect to any Note, the
date that is two years (or such other period as may hereafter be provided under
Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by non-affiliates of Restricted Notes without restriction)
after the later of the original issue date in respect of such Note and the last
date on which the Company or any Affiliate of the Company was the owner of such
Note.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer in the Corporate Trust Office of the Trustee including any vice
president, assistant vice president or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, and to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Note" has the same meaning as "Restricted Security" set forth
in Rule 144(a)(3) promulgated under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"Restricted Payments" has the meaning set forth in Section 4.10(a).
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Notes" has the meaning set forth in Section 2.02.
"Rule 144A Physical Notes" has the meaning set forth in Section 2.02.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw-Hill,
Inc., a New York corporation, or any successor rating agency.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Securitization Financing Amount" means, as of any date, with respect to a
Qualified Receivables Transaction, that portion of the Indebtedness of the
related Receivables Subsidiary that is attributable to the accounts receivable
and related assets of the type described in the definition of "Qualified
Receivables Transaction" transferred to such Receivables Subsidiary by or on
behalf of the Company and its Restricted Subsidiaries.
-31-
"Seminis Korea" means Seminis Korea, Inc., a corporation organized under
the laws of South Korea.
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of the Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
(1) all monetary obligations of every nature of the Company under,
or with respect to, the Credit Facilities, including, without limitation,
obligations to pay principal, premium and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and
(2) all Hedging Obligations (and guarantees thereof);
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Company to a Subsidiary of the Company;
(2) Indebtedness to, or guaranteed on behalf of, any shareholder,
director, officer or employee of the Company or any Subsidiary of the
Company (including, without limitation, amounts owed for compensation)
other than a shareholder who is also a lender (or an Affiliate of a
lender) under the Credit Facilities;
(3) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Stock;
(5) any liability for federal, foreign, state, local or other taxes
owed or owing by the Company;
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(6) that portion of any Indebtedness incurred in violation of
Section 4.09 (but, as to any such obligation, no such violation shall be
deemed to exist for purposes of this clause (6) if the holder(s) of such
obligation or their representative shall have received an Officers'
Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on
which the initial borrowing thereunder is made would not) violate Section
4.09);
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to the Company; and
(8) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of the Company.
"Significant Subsidiary" means any Restricted 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.
"South Korean Loans" means Indebtedness at any time outstanding
incurred by Seminis Korea and its Restricted Subsidiaries.
"Specified Assets" means those certain assets located in South Korea
and The Netherlands which as of the Issue Date are specified in a schedule to
the Credit Agreement.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Indebtedness" means Indebtedness of the Company or any
Guarantor that is subordinated or junior in right of payment to the Notes or the
Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof);
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(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof); and
(3) any other Person that is consolidated in the consolidated
financial statements of the specified Person in accordance with GAAP.
"Subsidiary Guarantees" means the Guarantees of the Subsidiary
Guarantors.
"Subsidiary Guarantors" means each of:
(1) the Domestic Subsidiaries of the Company as of the Issue Date;
and
(2) any other Subsidiary of the Company that executes a Subsidiary
Guarantee in accordance with the provisions of this Indenture.
"Temporary Regulation S Global Notes" has the meaning set forth in
Section 2.02.
"Temporary Regulation S Global Note Legend" means the legend set
forth in Exhibit H.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03).
"Total Indebtedness" means, at a particular date, the sum of (a) the
aggregate stated balance sheet amount of all Indebtedness of such Person and its
Restricted Subsidiaries and (b) to the extent not included in clause (a), the
aggregate redemption price of any Disqualified Stock, in each case as determined
on a consolidated basis in accordance with GAAP at such date.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company that
is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company
-34-
or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; and
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.10. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09, the Company shall be in default of
such covenant. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (1) such Indebtedness
is permitted under Section 4.09, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period
and (2) no Default or Event of Default would be in existence following such
designation.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that shall elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture to
be qualified under the TIA
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is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
SECTION 1.03. 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 as in effect on the Issue Date;
(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; and
(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
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shall be deemed to include mention of the payment of Additional Interest
to the extent that, in such context, Additional Interest, was or would be
payable in respect thereof.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.
The Trustee shall initially authenticate the Notes for original issue on
the Issue Date in an aggregate principal amount of $190,000,000 upon a written
order of the Company in the form of an Officers' Certificate of the Company
pursuant to Section 2.03 (other than as provided in Section 2.08).
SECTION 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication relating thereto
shall be in substantially the forms set forth, or referenced, in Exhibit A
annexed hereto and in this Article Two. The Notes may have such appropriate
insertions, omissions, substitutions, notations, legends, endorsements,
identifications and other variations as are required or permitted by law, stock
exchange rule or depositary rule or usage, the certificate of incorporation,
bylaws or other similar governing instruments of the Company, agreements to
which the Company is subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers of the Company executing
such Notes, as evidenced by such execution (provided that any such notation,
legend, endorsement, identification or variation is in a form acceptable to the
Company). Each Note shall be dated the date of its authentication.
Initial Notes and any Additional Notes offered and sold in reliance on
Rule 144A shall be issued initially in the form of one or more permanent global
Notes in substantially the form set forth in Exhibit A and shall contain the
Private Placement Legend set forth in Exhibit B and the Global Note Legend (the
"Rule 144A Global Notes"), registered in the name of the nominee of the
Depositary, deposited with the Trustee, as custodian for the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Rule 144A Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
provided in Sections 2.16 and 2.17.
Initial Notes and any Additional Notes offered and sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more temporary global Notes in substantially the form set forth in
Exhibit A and containing the Private Placement Legend as set forth in Exhibit C
and the Temporary Regulation S Global Note Legend (the "Temporary Regulation S
Global Notes"), registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary or its nominee, duly
executed by the
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Company and authenticated by the Trustee as hereinafter provided. At any time
following termination of the Distribution Compliance Period (the "Offshore Note
Exchange Date"), upon receipt by the Trustee and the Company of a certificate
substantially in the form set forth in Exhibit E hereto, one or more permanent
Global Notes substantially in the form of Exhibit A hereto and containing the
Global Note Legend (the "Permanent Regulation S Global Notes," and together with
the Temporary Regulation S Global Notes, the "Regulation S Global Notes") duly
executed by the Company and authenticated by the Trustee as hereinafter provided
shall be deposited with the Trustee, as custodian for the Depositary, and the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Temporary Regulation S Global Note in an amount equal to
the principal amount of the beneficial interest in the Temporary Regulation S
Global Note transferred. The aggregate principal amount of the Regulation S
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its nominee,
as provided in Sections 2.16 and 2.17.
Initial Notes and any Additional Notes issued pursuant to Section 2.07 and
Section 2.16 in exchange for or upon transfer of beneficial interests in the
Rule 144A Global Notes or Regulation S Global Notes shall be in the form of
permanent certificated Notes in substantially the form set forth in Exhibit A
containing the Private Placement Legend as set forth in Exhibit B (the "Rule
144A Physical Notes"), or in the form of permanent certificated Notes
substantially in the form set forth in Exhibit A containing the Private
Placement Legend as set forth in Exhibit C (the "Regulation S Physical Notes"),
respectively, as hereinafter provided. No Regulation S Physical Note may be
issued until expiration of the applicable Distribution Compliance Period and
receipt by the Company and the Trustee from the (x) proposed transferor, of a
certificate substantially in the form set forth in Exhibit C or (y) holder of a
beneficial interest being exchanged, of certification that such holder is a
non-U.S. person or a U.S. person (within the meaning of Regulation S) who
acquired such interest in a transaction exempt from the registration
requirements of the Securities Act (in which case a Rule 144A Physical Note
shall be issued).
The Rule 144A Physical Notes and the Regulation S Physical Notes, together
with any other certificated notes in registered form, are sometimes collectively
referred to as the "Certificated Notes." The Rule 144A Global Notes and the
Regulation S Global Notes, together with any other global notes in registered
form, are sometimes collectively referred to as the "Global Notes."
Initial Notes and Additional Notes offered and sold in reliance on any
exemption under the Securities Act other than Regulation S and Rule 144A shall
be issued in the form of permanent Certificated Notes substantially in the form
set forth in Exhibit A and shall contain the Private Placement Legend as set
forth in Exhibit B.
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Exchange Securities shall be issued substantially in the form set forth in
Exhibit A and, subject to Section 2.16, shall be in the form of one or more
Global Notes.
SECTION 2.03. Execution and Authentication.
The Notes shall be executed on behalf of the Company by its Chief
Executive Officer, Chief Financial Officer, President, any Vice President,
Treasurer or Assistant Treasurer. The signature of any of these officers on the
Notes may be manual or facsimile.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication; and the Trustee shall authenticate and deliver (i) Initial
Notes for original issue in the aggregate principal amount not to exceed
$190,000,000, (ii) additional Notes ("Additional Notes") from time to time for
original issue in aggregate principal amounts specified by the Company and (iii)
Exchange Securities from time to time for issue in exchange for a like principal
amount of Initial Notes or Additional Notes, in each case specified in clauses
(i) through (iii) above, upon a written order of the Company in the form of an
Officers' Certificate (an "Authentication Order"), and in the case of clause
(ii), upon receipt by the Trustee of an Opinion of Counsel confirming that the
Holders of the outstanding Notes shall be subject to federal income tax in the
same amounts, in the same manner and at the same times as would have been the
case if such Additional Notes were not issued. Such Officers' Certificates shall
specify the amount of Notes to be authenticated and the date on which the Notes
are to be authenticated, whether the Notes are to be Initial Notes, Additional
Notes or Exchange Securities, that, in the case of Additional Notes, the
issuance of such Notes does not contravene any provision of Article Four of this
Indenture, whether the Notes are to be issued as one or more Global Notes or
Certificated Notes, the name or names of the Initial Holder or Holders and such
other information as the Company may include or the Trustee may reasonably
request.
All Notes shall be dated the date of their authentication.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Note shall have been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been
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authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
The Notes shall be issuable only in fully registered form without coupons
in denominations of $1,000 and integral multiples of $1,000.
SECTION 2.04. Registrar and Paying Agent.
If a Holder has given wire transfer instructions to the Company, the
Company shall pay all principal, interest and premium and Additional Interest,
if any, on that Holder's Notes in accordance with those instructions. All other
payments on Notes shall be made at the office or agency of the paying agent (the
"Paying Agent") and registrar (the "Registrar") within the City and State of New
York unless the Company elects to make interest payments by check mailed to the
Holders at their address set forth in the register of Holders (the "Register").
The Registrar shall keep a Register of the Notes and of their transfer and
exchange. The Company may have one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent.
The Company shall enter into an appropriate agency agreement, which shall
incorporate the provisions of the TIA, with any Agent that is not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Trustee shall initially act as Paying Agent and Registrar. The Company
may change the Paying Agent or Registrar without prior notice to the Holders of
the Notes, and the Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
SECTION 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
or premium or interest on the Notes (whether such money has been paid to it by
the Company or any other obligor on the Notes or the Guarantors), and the
Company and the Paying Agent shall notify the Trustee of any default by the
Company (or any other obligor on the Notes) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder, provided that if the Company or an Affiliate
thereof acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
the Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Event of Default specified in Section 6.01(1) or (2), upon written request to
the Paying Agent, require such Paying
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Agent to pay forthwith all money so held by it to the Trustee and to account for
any funds disbursed. Upon making such payment, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.06. 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
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least five Business Days before each Interest Payment Date, and
at such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders, provided that, as long as the Trustee is the
Registrar, no such list need be furnished.
SECTION 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
shall authenticate new Notes (and the Guarantors shall execute the Guarantee
thereon) evidencing such transfer or exchange at the Registrar's request. No
service charge shall be made to the Holder for any registration of transfer or
exchange. The Company may require from the Holder payment of a sum sufficient to
cover any transfer taxes or other governmental charge that may be imposed in
relation to a transfer or exchange, but this provision shall not apply to any
taxes or charges due solely in respect of an exchange pursuant to Section 2.11,
3.06, 4.08, 4.12 or 8.05 (in which events the Company shall be responsible for
the payment of such taxes). The Registrar shall not be required to exchange or
register a transfer of any Note for a period of 15 days immediately preceding
the redemption of Notes, except the unredeemed portion of any Note being
redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global Note,
agree that transfers of the beneficial interests in such Global Note may be
effected only 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
Global Note shall be required to be reflected in a book entry.
Except as expressly provided herein, neither the Trustee nor the Registrar
shall have any duty to monitor the Company's compliance with or have any
responsibility with respect to the Company's compliance with any Federal or
state securities laws.
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SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee, or if
the Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note (and the Guarantors shall execute the Guarantee thereon) if the Holder of
such Note furnishes to the Company and the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of such
Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the
Trustee or the Company, an indemnity bond shall be posted, sufficient in the
judgment of the Trustee and the Company to protect the Company, the Guarantors,
the Trustee or any Paying Agent from any loss that any of them may suffer if
such Note is replaced. The Company may charge such Holder for the Company's
reasonable out-of-pocket expenses in replacing such Note and the Trustee may
charge the Company for the Trustee's expenses (including, without limitation,
attorneys' fees and disbursements) in replacing such Note. Every replacement
Note shall constitute a contractual obligation of the Company.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any Maturity Date,
money sufficient to pay all accrued interest and principal with respect to the
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or any Affiliate of the Company shall
be disregarded as though they were not out-
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standing, except that for the purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Notes as to
which a Responsible Officer of the Trustee has actually received an Officers'
Certificate stating that such Notes are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith shall not be disregarded if the
pledgee established to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Notes and that the pledgee is not the Company, a
Guarantor, any other obligor on the Notes or any of their respective Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the Company
may prepare and the Trustee 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 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.
SECTION 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall deliver such canceled
Notes to the Company. The Company may not reissue or resell, or issue new Notes
to replace, Notes that the Company has redeemed or paid, or that have been
delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes, it shall
pay the defaulted interest, plus (to the extent permitted by law) any interest
payable on the defaulted interest, in accordance with the terms hereof, to the
Persons who are Holders on a subsequent special record date, which date shall be
at least five Business Days prior to the payment date. The Company shall fix
such special record date and payment date in a manner satisfactory to the
Trustee. At least 10 days before such special record date, the Company shall
mail to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest, and interest payable on defaulted
interest, if any, to be paid. The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Notes may be listed and,
upon such notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to this
sentence, such manner of payment shall be deemed practicable by the Trustee.
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SECTION 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if so, such
CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment Date and
Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depositary or its nominee, as
the case may be, as the sole registered owner and the sole Holder of the Global
Notes represented thereby. The principal and interest on Certificated Notes
shall be payable, either in person or by mail, at the office of the Paying
Agent.
SECTION 2.16. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) to the
extent relevant thereto, bear the applicable Private Placement Legend, the
Global Note Legend and the Temporary Regulation S Global Note Legend. None of
the Company or the Guarantors or any of their agents shall have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of beneficial ownership interests of, a Global Note, or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note, and the
Depositary may be treated by the Company, the Guarantors, the Trustee and any
agent of the Company, the Guarantors or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Guarantors, the Trustee or any
agent of the Company, the Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered Holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
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hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(b) Interests of beneficial owners in a Global Note may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 2.17. Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, except (i) as required in connection
with transfers of interests therein pursuant to Section 2.17(b) or 2.17(g) or as
may be required by the Company or the Trustee in connection with transfers
pursuant to Section 2.17(i), and (ii) that Rule 144A Physical Notes or, subject
to Section 2.17(h), Regulation S Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Rule 144A
Global Note or the Regulation S Global Note, respectively, in the event that (A)
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for the applicable Global Note and a successor depositary is not
appointed by the Company within 90 days or (B) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depositary.
In addition, beneficial interests in a Global Note may be exchanged for a
Certificated Note upon request but only upon at least 20 days' prior written
notice given to the Trustee by or on behalf of the Depositary in accordance with
customary procedures. In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners for a
Certificated Note pursuant to this Section 2.16(b), the Registrar shall record
on its books and records (and make a notation on the Global Note of) the date
and a decrease in the principal amount of such Global Note in an amount equal to
the beneficial interest in the Global Note being transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Certificated Notes of like tenor and principal amount of authorized
denominations. In connection with a transfer of an entire Global Note to
beneficial owners pursuant to this Section 2.16(b), the applicable 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 Depositary in exchange for its beneficial
interest in the applicable Global Note, an equal aggregate principal amount at
maturity of 144A Physical Notes (in the case of the 144A Global Note) or
Regulation S Physical Notes (in the case of the Regulation S Global Note), as
the case may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is transferred
to a Person who takes delivery in the form of an interest in another Global Note
shall, upon transfer, cease to be an interest in such Global Note and become an
interest in the other Global Note and, accordingly, shall thereafter be subject
to all transfer restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an
interest.
(d) The Company, the Guarantors, any other obligor upon the Notes or the
Trustee, in the discretion of any of them, may treat as the act of a Holder any
instrument or writ-
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ing of any Person that is identified by the Depositary as the owner of a
beneficial interest in the Global Note.
(e) Any Rule 144A Physical Note delivered in exchange for an interest in
the Rule 144A Global Note pursuant to Section 2.16(b) shall, except as otherwise
provided in Section 2.17, bear the Private Placement Legend as set forth in
Exhibit B.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to QIBs. The following provisions shall apply with respect
to the registration or any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(1) if it complies with all other applicable requirements of this
Indenture (including Section 2.07 and Section 2.16); and
(2) the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on such
Holder's Note stating, or to a transferee who has 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; and
(3) if the proposed transferee is an Agent Member, and the Notes to be
transferred consist of Certificated Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar of
instructions given in accordance with the Depositary'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 Global Note in an amount equal to
the principal amount of the Certificated Note to be transferred, and the
Trustee shall cancel the Certificated Note so transferred.
(b) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S.
Persons. The following provisions shall apply with respect to the registration
of any proposed transfer of a Note constituting a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(1) the Registrar shall register the transfer of any Note constituting a
Restricted Note whether or not such Note bears the applicable Private
Placement Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date (provided,
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however, that neither the Company nor any Affiliate of the Company has
held any beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date) or (y)(1) in the
case of a transfer to an Institutional Accredited Investor which is not a
QIB (excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit G hereto
and any legal opinions and certifications required thereby or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto;
(2) if the proposed transferor is a participant holding a beneficial
interest in a Global Note, upon receipt by the Registrar of (x) the
certificate, if any, required by Section 2.17(b)(i) and (y) written
instructions given in accordance with the Depositary's and the Registrar's
procedures, (a) the Registrar shall reflect on its books and records the
date and (if the transfer does not involve a transfer of outstanding
Certificated Notes) a decrease in the principal amount of such Global Note
in an amount equal to the principal amount of the beneficial interest in
the Global Note to be transferred and (b) the Company shall execute and
the Trustee shall authenticate and deliver, one or more Certificated Notes
of like tenor and amount; and
(3) in the case of a transfer to a Non-U.S. Person, if the proposed
transferee is a Participant, and the Notes to be transferred consist of
Certificated Notes which after transfer are to be evidenced by an interest
in a Regulation S Global Note, upon receipt by the Registrar of written
instructions given in accordance with the Depositary'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 such Regulation S Global Note
in an amount equal to the principal amount of the Certificated Note to be
transferred, and the Trustee shall cancel the Certificated Note so
transferred.
(c) Transfers of Interests in the Temporary Regulation S Global
Notes. With respect to registration of any proposed transfer of interests in any
Temporary Regulation S Global Note, the Registrar shall register the transfer of
any interest in such Note only
(1) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit E hereto and shall take delivery in the form of an
interest in the Temporary Regulation S Global Note; or
(2) if the proposed transferee is a QIB and the proposed transferor
has checked the box provided for on the form of Note stating, or has
otherwise certified to the Company and the Registrar in writing, that the
sale has been made in compliance with 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
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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; and
(3) upon receipt by the Registrar of written instructions given in
accordance with the Depositary's and the Registrar's procedures.
(d) Transfers to Non-U.S. Persons. With respect to the registration
of any proposed transfer of a Note that is a Restricted Note to a Non-U.S.
Person (except for any transfer referred to in Section 2.17(c)), the Registrar
shall register such transfer:
(1) if it complies with all other applicable requirements of this
Indenture (including Section 2.07 and Section 2.16);
(2) if the proposed transfer is to be made prior to the end of the
Distribution Compliance Period, upon receipt of a certificate
substantially in the form of Exhibit E hereto from the proposed
transferor;
(3) if the proposed transfer is to be made after the end of the
Distribution Compliance Period and the Note to be transferred is a 144A
Physical Note or an interest in the Rule 144A Global Note, only upon
receipt of a certificate substantially in the form of Exhibit B from the
proposed transferor; and
(4) if the proposed transferor or transferee is or is acting through
an Agent Member, upon receipt by the Registrar of written instructions in
accordance with the Depositary's and the Registrar's procedures.
(e) Transfers Pursuant to Rule 144. With respect to the registration
of any proposed transfer of a Note that is a Restricted Note pursuant to the
exemption from registration under the Securities Act provided by Rule 144, the
Registrar shall register such transfer:
(1) if it complies with all other applicable requirements of this
Indenture (including Section 2.07 and Section 2.16); and
(2) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has
otherwise certified to the Company and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144; and
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(3) if the proposed transferor or transferee is or is acting through
an Agent Member, upon receipt by the Registrar of written instructions
given in accordance with the Depositary's and the Registrar's procedures.
Each of the Company and the Trustee may require additional opinions,
certifications or other evidence as may be reasonably required to confirm that
any such proposed transfer is being made in compliance with the Securities Act
and applicable state securities laws.
(f) Transfers to the Company. With respect to the registration of
any proposed transfer of a Note to the Company, the Registrar shall register
such transfer:
(1) if it complies with all other applicable requirements of this
Indenture (including Section 2.07 and Section 2.16); and
(2) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has
otherwise certified to the Company and the Registrar in writing, that the
sale has been made to the Company; and
(3) if the proposed transferor is or is acting through an Agent
Member, upon receipt by the Registrar of written instructions given in
accordance with the Depositary's and the Registrar's procedures.
(g) Other Transfers. The Registrar shall effect and register, upon
receipt of a written request from the Company to do so, a transfer not otherwise
permitted by this Section 2.17, such registration to be done in accordance with
the otherwise applicable provisions of this Section 2.17, upon the furnishing by
the proposed transferor or transferee of a written Opinion of Counsel (which
opinion and counsel are satisfactory to the Company and the Trustee) to the
effect that, and such other certifications or evidence as the Company may
require to confirm that, the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and otherwise in compliance with applicable
state securities laws.
(h) Limitation on Issuance of Certificated Notes. No Physical Note
shall be exchanged for a beneficial interest in any Global Note, except in
accordance with Section 2.16 and this Section 2.17.
(i) Execution, Authentication and Delivery of Certificated Notes. In
any case in which the Registrar is required to deliver a Physical Note to a
transferor or transferee, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, such Physical Note.
(j) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes
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that do not bear the Private Placement Legend. Upon the registration of
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) 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 (ii) such Note
has been sold pursuant to an effective registration statement under the
Securities Act and the Registrar has received an Officers' Certificate from the
Company to such effect or (iii) the requested transfer is after the Resale
Restriction Termination Date (provided, however, that neither the Company nor an
Affiliate of the Company has held any beneficial interest in such Note or
portion thereof at any time since the Issue Date).
(k) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
(l) Certain Transfers in Connection with and After the Exchange
Offer Under the Registration Rights Agreement. Notwithstanding any other
provision of this Indenture:
(1) no Exchange Securities may be exchanged by the Holder thereof
for a Note issued on the Issue Date;
(2) accrued and unpaid interest on the Notes issued on the Issue
Date being exchanged in the Exchange Offer shall be due and payable on the
next Interest Payment Date for the Exchange Securities following the
Exchange Offer and shall be paid to the Holder on the relevant record date
of the Exchange Securities issued in respect of the Note issued on the
Issue Date being exchanged; and
(3) interest on the Note issued on the Issue Date being exchanged in
the Exchange Offer shall cease to accrue on the date of completion of the
Exchange Offer and interest on the Exchange Securities to be issued in the
Exchange Offer shall accrue from the date of the completion of the
Exchange Offer.
(4) The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice
to the Registrar.
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SECTION 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months and actual days elapsed.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, at least 30 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee) but not more than 60 days before
the Redemption Date, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the redemption
price, and deliver to the Trustee, no later than two Business Days prior to the
Redemption Date, an Officers' Certificate stating that such redemption shall
comply with the conditions contained in paragraph 5 of the Notes.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select Notes for redemption as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee
deems fair and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected will be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, will be
redeemed.
SECTION 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder
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of Notes to be redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar pursuant to Section 2.04, except that
notices of redemption may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Notes or a
discharge of this Indenture pursuant to Section 9 of this Indenture.
The notice shall identify the Notes to be redeemed (including the CUSIP
numbers thereof) and shall state:
(1) the Redemption Date;
(2) the appropriate calculation of the redemption price;
(3) if fewer than all outstanding Notes are to be redeemed in part, the
portion of the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
(7) which subsection of paragraph 5 of the Notes is the provision of
the Notes pursuant to which the redemption is occurring; and
(8) the aggregate principal amount of Notes that are being redeemed.
In addition, if such redemption is subject to satisfaction of one or
more conditions precedent, such notice of redemption shall describe each such
condition or conditions, and if applicable, shall state that, in the Company's
discretion, the Redemption Date may be delayed until such time as any or all
such conditions shall be satisfied, or such redemption may not occur and such
notice may be rescinded in the event that any or all such conditions shall not
have been satisfied by the Redemption Date as stated in such notice, or by the
Redemption Date as so delayed.
At the Company's written request made at least five Business Days
(unless a shorter notice shall be agreed to in writing by the Trustee) prior to
the date on which notice is to be given, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
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SECTION 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed, the
Notes so to be redeemed shall, on the Redemption Date and, if applicable, upon
satisfaction of any conditions to such redemption set forth in such notice of
redemption, become due and payable at the redemption price, including any
premium, plus interest accrued to such Redemption Date. Upon surrender to the
Paying Agent, such Notes shall be paid at the redemption price, including any
premium, plus interest accrued to the Redemption Date; provided that if the
Redemption Date is after a regular record date and on or prior to the Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Notes registered on the relevant record date; and provided, further,
that if a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day. Such notice, if mailed in the
manner provided in Section 3.03 shall be conclusively presumed to have been
given whether or not the Holder receives such notice.
SECTION 3.05. Deposit of Redemption Price.
(a) On or prior to 1:00 p.m., New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of, including premium, if
any, and accrued interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
(b) On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued interest on Notes
called for redemption shall have been made available in accordance with Section
3.05(a) above, the Notes called for redemption shall cease to accrue interest
and the only right of the Holders of such Notes shall be to receive payment of
the redemption price of and, subject to the first proviso in Section 3.04,
accrued and unpaid interest on such Notes to the Redemption Date. If any Note
surrendered for redemption shall not be so paid, interest shall be paid, from
the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case at the rate and in the manner provided in the Notes.
SECTION 3.06. Notes Redeemed in Part.
If any Note is to be redeemed in part only, the notice of redemption
that relates to that Note shall state the portion of the principal amount of
that Note that is to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note shall be issued in the name of the
Holder of Notes upon cancellation of the original Note. On and after the
Redemption Date, interest ceases to accrue on Notes or portions of them called
for redemption.
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SECTION 3.07. Other Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. An installment of
principal or interest shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date money designated for and sufficient
to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or Registrar) where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company or any Guarantor in respect of the Notes, the Guarantees and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and each Guarantor hereby
appoint the Trustee as their agent to receive all such presentations,
surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
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(c) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.04.
SECTION 4.03. Legal Existence.
Subject to Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Restricted Subsidiary and the
material rights (charter and statutory), and franchises of the Company and the
Restricted Subsidiaries; provided that the Company shall not be required to
preserve any such right, franchise, or the corporate, partnership or other
existence of the Company or any of its Restricted Subsidiaries if the Company in
good faith shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Restricted Subsidiaries
taken as a whole.
SECTION 4.04. [Reserved]
SECTION 4.05. Waiver of Stay, Extension or Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) each of the Company and the Guarantors hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.06. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 95 days after the
end of each fiscal year of the Company commencing with the Company's fiscal year
ending September 30, 2003 an Officers' Certificate, one of the signers of which
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not to the best
knowledge of the signers thereof the Company and any Restricted Subsidiary is in
default in the performance and observance of any of the terms, provisions and
conditions of Section 5.01 or Sections 4.01 to 4.19, inclusive, and if the
Company shall be in default, specifying all such defaults, the nature and status
thereof of which they may have knowledge and what action the Company and the
Guarantors are taking or propose to take with respect thereto. Such
determination shall be made without regard to notice requirements or periods of
grace.
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(b) The Company shall deliver to the Trustee, as soon as possible and
in any event no later than 10 Business Days after the Company becomes aware or
should reasonably become aware of the occurrence of a Default or an Event of
Default or an event which, with notice or the lapse of time or both, would
constitute a Default or Event of Default, an Officers' Certificate setting forth
the details of such Default or Event of Default, and the action which the
Company is taking or proposes to take with respect to such Default or Event of
Default.
(c) The Company shall deliver to the Trustee, within 95 days after the
end of each fiscal year, a written statement by the Company's independent public
accountants stating whether, in connection with their audit of the Company's
financial statements, any event which would constitute an Event of Default as
defined herein insofar as they relate to accounting matters has come to their
attention and, if such an Event of Default has come to their attention,
specifying the nature and period of the existence thereof.
SECTION 4.07. Payment of Taxes.
The Company shall, and shall cause each of its Restricted Subsidiaries
to, pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, all material taxes, assessments and governmental charges
levied or imposed upon the Company or any of its Restricted Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.
(a) If a Change of Control occurs, each Holder of Notes shall have the
right to require the Company to offer to repurchase (a "Change of Control
Offer") all or any part (equal to $1,000 or an integral multiple of $1,000) of
that Holder's Notes pursuant to a Change of Control Offer on the terms set forth
herein. In the Change of Control Offer, the Company shall offer a Change of
Control Payment in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Additional Interest, if any, on
the Notes repurchased, to the date of purchase (the "Change of Control Payment
Date").
(b) Within 30 days following the date on which the Company becomes
aware that a Change of Control has occurred, the Company shall mail a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase notes on the Change of Control
Payment Date specified in the notice, which date shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed.
(c) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations con-
-56-
flict with this Section 4.08, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.08 by virtue of such conflict.
(d) On the Change of Control Payment Date, the Company shall, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
(e) The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note shall be in a
principal amount of $1,000 or an integral multiple of $1,000.
(f) The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(g) Notwithstanding the foregoing, the Company shall not be required to
make a Change of Control Offer upon a Change of Control if (i) a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 4.08 applicable to a
Change of Control Offer made by the Company and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer or (ii) a notice of
redemption pursuant to Section 3.03 is delivered, unless and until there is a
default in payment of the applicable redemption price.
(h) A Change of Control Offer may be made in advance of a Change of
Control, and conditioned upon the occurrence of such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of making
the Change of Control Offer. Notes repurchased by the Company pursuant to a
Change of Control Offer shall have the status of notes issued but not
outstanding or shall be retired and canceled, at the option of the Company.
Notes purchased by a third party pursuant to the preceding paragraph shall have
the status of notes issued and outstanding.
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SECTION 4.09. Limitation on Indebtedness and Issuance of Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Restricted Subsidiaries of
the Company (other than Seminis Korea or any of its Restricted Subsidiaries) may
incur Indebtedness (including Acquired Debt) or issue preferred stock, if the
Leverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available (the "Reference Period")
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock or preferred stock is issued would not have exceeded
the Leverage Test in effect on and as of the last days of the applicable
Reference Period, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or Disqualified Stock or the preferred stock had been issued,
as the case may be, at the beginning of such four-quarter period.
(b) Notwithstanding any other provision of this Section 4.09, in no
event shall the non-Guarantor Restricted Subsidiaries (other than Seminis Korea
or any of its Restricted Subsidiaries) be permitted to incur Indebtedness (other
than Indebtedness permitted pursuant to Section 4.09(c)(5)) in an aggregate
principal amount (or accreted value, as applicable) at any time outstanding in
excess of the greater of (x) $30,000,000 (or the U.S. Dollar equivalent thereof)
and (y) the sum of 15% of the book value of the accounts receivable and
inventory of all of the non-Guarantor Restricted Subsidiaries (other than
Seminis Korea or any of its Restricted Subsidiaries) as set forth at the end of
the most recently completed fiscal period for which internal balance sheets of
such non-Guarantor Restricted Subsidiaries are available.
(c) Section 4.09(a) above shall not prohibit the incurrence or
existence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company and the Subsidiary
Guarantors of Indebtedness and letters of credit under Credit
Facilities in an aggregate principal amount at any one time outstanding
under this clause (1) (with letters of credit being deemed to have a
principal amount equal to the aggregate maximum amount then available
to be drawn thereunder) not to exceed $260,000,000 (or the U.S. Dollar
equivalent thereof) (provided that such aggregate amount shall be
reduced to the extent of any reduction or elimination of any commitment
under any Credit Facility resulting from or relating to the formation
of any Receivables Subsidiary or the consummation of any Qualified
Receivables Transaction), less the aggregate amount of all Net Proceeds
of Asset Sales applied by the Company or any of its Restricted
Subsidiaries since the Issue Date to repay any term In-
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debtedness under a Credit Facility incurred under this clause (1) or to
repay any revolving credit Indebtedness under a Credit Facility
incurred under this clause (1) and effect a corresponding commitment
reduction thereunder pursuant to Section 4.12(b)(1);
(2) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(3) the incurrence by the Company and the Subsidiary
Guarantors of Indebtedness represented by the Notes and the related
Subsidiary Guarantees to be issued on the Issue Date and the Exchange
Securities and the related Subsidiary Guarantees to be issued pursuant
to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace,
Indebtedness (other than intercompany Indebtedness) that was permitted
to be incurred under Section 4.09(a) above or Section 4.09(c) (2), (3)
or (4);
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Subsidiary Guarantor is the
obligor on such Indebtedness (other than any Indebtedness
between or among the Company and any Subsidiary Guarantor),
such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the
Notes, in the case of the Company, or the Subsidiary
Guarantee, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary of
the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a
Restricted Subsidiary of the Company, shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this Section 4.09(c)(5);
(6) the incurrence by the Company of Hedging Obligations that
are incurred in the ordinary course of business and not for speculative
purposes;
(7) the guarantee by the Company or any Subsidiary Guarantor
of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this
Section 4.09;
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(8) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock or preferred stock in the
form of additional shares of the same class of Disqualified Stock or
preferred stock, as the case may be, shall not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock or
preferred stock for purposes of this Section 4.09;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under (or constituting reimbursement
obligations with respect to) letters of credit, surety, performance or
appeal bonds, completion guarantees, escrow agreements or similar
instruments issued in connection with the ordinary course of business,
including letters of credit or similar instruments in respect of
self-insurance and workers' compensation obligations;
(10) Indebtedness of the Company or of any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business, provided that such
Indebtedness is satisfied within five Business Days;
(11) the incurrence of the South Korean Loans in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding not to exceed $30,000,000 (or the U.S. Dollar equivalent
thereof);
(12) Indebtedness arising from agreements of the Company or
any of its Restricted Subsidiaries providing for indemnification,
adjustment of purchase price or similar obligations, in each case,
incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary of the Company;
(13) the issuance by any of the Company's Restricted
Subsidiaries to the Company or any of its Restricted Subsidiaries of
shares of preferred stock, provided that (a) any subsequent issuance or
transfer of Equity Interests that results in any such preferred stock
being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (b) any sale or other transfer of any
such preferred stock to a Person that is neither the Company nor a
Restricted Subsidiary of the Company shall be deemed, in each case, to
constitute an issuance of preferred stock by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by
this Section 4.09(c)(13);
(14) the incurrence by a Receivables Subsidiary of
Indebtedness in a Qualified Receivables Transaction that is without
recourse (other than pursuant to representations, warranties, covenants
and indemnities entered into in the ordinary course of business in
connection with a Qualified Receivables Transaction) to the Company or
to any Restricted Subsidiary of the Company or its assets (other than
such Receivables Subsidiary
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and its assets), and is not guaranteed by any such Person; provided
that any outstanding Indebtedness incurred under this clause (14) shall
reduce (for so long as, and to the extent that, the Indebtedness
referred to in this clause (14) remains outstanding) the aggregate
amount permitted to be incurred under Section 4.09(c)(1) above to the
extent set forth therein;
(15) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
property, plant or equipment used in the business of the Company or
such Restricted Subsidiary (whether through the direct purchase of
assets or the Equity Interests of any Person owning such assets), in an
aggregate principal amount not to exceed $12,500,000 at any time
outstanding; and
(16) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding not
to exceed $25,000,000.
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded as a
result of fluctuations in the exchange rates of currencies. For purposes of
determining compliance with this Section 4.09, (1) the outstanding principal
amount of any particular Indebtedness shall be counted only once and any
obligation arising under any guarantee, Lien, letter of credit or similar
instrument supporting such Indebtedness shall be disregarded, and (2) in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (16) above,
or is entitled to be incurred pursuant to Section 4.09(a), the Company in its
sole discretion shall be permitted to divide and classify such item of
Indebtedness on the date of its incurrence, or later classify, reclassify or
divide all or a portion of such item of Indebtedness, in any manner that
complies with this Section 4.09; provided that Indebtedness incurred under the
Credit Agreement on the Issue Date shall be deemed to have been incurred on such
date in reliance on clause (1) of this Section 4.09(c) and may not be
reclassified.
Furthermore, it being understood, that notwithstanding Section 4.09
or any other provision of this Indenture, on the Issue Date, the Company may
incur $100,000,000 of Indebtedness consisting of a one-day loan from Citibank
North America, Inc. or an affiliate thereof in order to facilitate and finance
the Acquisition Transactions.
SECTION 4.10. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
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(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's Equity Interests (including,
without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect
holders of the Company's Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any
Indebtedness that is subordinated to the Notes or the Subsidiary
Guarantees (excluding any intercompany Indebtedness between the Company
and any of its Restricted Subsidiaries), except a payment of interest
or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in clauses (1) through (4) being collectively
referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
(B) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Leverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (excluding Restricted
Payments permitted by clauses (2), (3), (4), (8), (9) and (10)(y) of
Section 4.10(b)), is less than the sum, without duplication, of:
(i) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the
Issue Date to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less
100% of such deficit); plus
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(ii) 100% of the aggregate net cash proceeds and the
Fair Market Value of Marketable Securities and other assets
used or useful in a Permitted Business or the Capital Stock of
a Person engaged in a Permitted Business received by the
Company since the Issue Date as a contribution to its common
equity capital or from or in respect of the issue or sale of
Equity Interests of the Company (other than Disqualified
Stock) or the issue or sale of Equity Interests of Holdings
(to the extent the proceeds thereof are contributed to the
Company by Holdings) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests
(including such cash proceeds received in connection with any
such conversion or exchange) (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of
the Company); plus
(iii) the net reduction in any Restricted Investment
that was made after the Issue Date resulting from cash
payments of interest on Indebtedness, dividends, repayments of
loans or advances, in each case to the Company or any of its
Restricted Subsidiaries; plus
(iv) to the extent that any Unrestricted Subsidiary
of the Company is redesignated as a Restricted Subsidiary of
the Company after the Issue Date, the lesser of (i) the Fair
Market Value of the Company's Investment in such Subsidiary as
of the date of such redesignation or (ii) such Fair Market
Value as of the date on which such Subsidiary was originally
designated as an Unrestricted Subsidiary; plus
(v) the net cash proceeds received by the Company or
any of its Restricted Subsidiaries from the sale of Restricted
Investments that were made after the Issue Date, provided that
the sum of all amounts added pursuant to this clause (e) shall
not exceed the aggregate initial amount of all such Restricted
Investments that have been made since the Issue Date; plus
(vi) the amount by which Indebtedness of the Company
or any of its Restricted Subsidiaries is reduced on the
Company's consolidated balance sheet upon the conversion or
exchange after the Issue Date of any such Indebtedness
incurred after the Issue Date into or for Capital Stock (other
than Disqualified Stock); plus
(vii) the initial amount of any Restricted Investment
that was made after the Issue Date in a Person that becomes a
Restricted Subsidiary.
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(b) So long as no Default has occurred and is continuing or would be
caused thereby (except as to clauses (1), (2), (4), (10), (11) and (12) of this
Section 4.10(b), where such restriction does not apply), the provisions of
Section 4.10(a) shall not prohibit:
(1) the payment of any dividend or the consummation of
any irrevocable redemption of Notes within 60 days after the date of
declaration of the dividend or giving of any such redemption notice,
as the case may be, if at the date of declaration or notice the
dividend or redemption payment would have complied with the
provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance
or other acquisition of any Subordinated Indebtedness of the Company
or any Guarantor or of any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the
Company) of, or capital contribution relating to, Equity Interests
of the Company (other than Disqualified Stock) or the issue or sale
of Equity Interests of Holdings (to the extent the proceeds thereof
are contributed to the Company by Holdings); provided that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
shall be excluded from clause (C)(ii) of Section 4.10(a);
(3) the defeasance, redemption, repurchase or other
acquisition of Subordinated Indebtedness of the Company or any
Guarantor with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness;
(4) (x) the repurchase of Equity Interests of the
Company or Holdings deemed to occur upon the cashless exercise of
stock options, warrants, convertible or exchangeable securities or
other similar Equity Interests if such Equity Interests represent a
portion of the exercise or exchange price of such options, warrants,
convertible or exchangeable securities or other similar Equity
Interests; and (y) payments to fund the purchase by the Company or
Holdings of fractional shares arising out of stock dividends, splits
or combinations or business combinations;
(5) the repurchase of any Subordinated Indebtedness or
Disqualified Stock of the Company or any securities of Holdings
(including, with respect to the repurchase of securities of
Holdings, by means of a dividend or distribution of cash by the
Company to Holdings) at a purchase price not greater than 101% of
the principal amount of such Subordinated Indebtedness or
Disqualified Stock of the Company or such securities of Holdings in
the event of a Change of Control pursuant to a provision similar to
Section 4.08; provided that prior to consummating any such
repurchase, the Company has made the Change of Control Offer
required by this Indenture and has repurchased all Notes validly
tendered for payment in connection with such Change of Control
Offer;
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(6) the repurchase of any Subordinated Indebtedness or
Disqualified Stock of the Company or any securities of Holdings
(including, with respect to the repurchase of securities of
Holdings, by means of a dividend or distribution of cash by the
Company to Holdings) at a purchase price not greater than 100% of
the principal amount of such Subordinated Indebtedness or
Disqualified Stock of the Company or such securities of Holdings in
the event of an Asset Sale pursuant to a provision similar to
Section 4.12; provided that prior to consummating any such
repurchase, the Company has made the Asset Sale Offer required by
Section 4.12(c) and has repurchased all Notes validly tendered for
payment in connection with such Asset Sale Offer;
(7) payments to fund the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of
Holdings or the Company held by any current or former director,
officer, employee or consultant of Holdings, the Company or any
Restricted Subsidiary of the Company (A) upon the death, disability
or termination of employment of such director, officer, employee or
consultant or to the extent required pursuant to employee benefit
plans, employment agreements or consulting agreements or (B)
pursuant to any equity subscription agreement, stock option
agreement, stockholders' agreement or similar agreement; provided
that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests may not in any fiscal year
exceed the lesser of (i) the sum of (x) $2,000,000 and (y) the
aggregate amount of Restricted Payments permitted (but not made)
pursuant to this clause (7) in prior fiscal years following the
Issue Date and (ii) $5,000,000; provided, further, that such amount
in any fiscal year may be increased by an amount not to exceed (x)
the cash proceeds from the issue or sale of Equity Interests of the
Company (or from the issue or sale of Equity Interests of Holdings
to the extent the proceeds thereof are contributed to the Company by
Holdings) to any such directors, officers, employees or consultants
that occurs after the Issue Date (to the extent that the cash
proceeds from the sale of such Equity Interests have not otherwise
been applied to the payment of Restricted Payments by virtue of
clause (a)(C)(ii) of this Section 4.10) plus (y) the cash proceeds
of key man life insurance policies received by the Company and its
Restricted Subsidiaries after the Issue Date;
(8) the declaration and payment of dividends to holders
of any class or series of Disqualified Stock of the Company issued
on or after the Issue Date in accordance with Section 4.09(a);
(9) payments to fund any payments that are made to
consummate the Acquisition Transactions pursuant to or contemplated
by the Acquisition Transactions Agreements (including, without
limitation, payments made in connection with the exercise of
appraisal rights under Section 262 of the Delaware General
Corporation Law);
(10) the making of distributions, loans or advances in
an amount not to exceed (x) $1,000,000 in any fiscal year to pay the
ordinary operating costs of Holdings (includ-
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ing, without limitation, directors' fees, indemnification
obligations, professional fees and expenses) plus (y) any other
amounts of corporate overhead expenses payable by Holdings which
were deducted in calculating Consolidated Net Income of the Company
in accordance with this Indenture;
(11) the payment by the Company of cash dividends to
Holdings in the amounts and at the times of any payment by Holdings
in respect of taxes, provided that (x) the amount of cash dividends
paid pursuant to this clause (11) to enable Holdings to pay federal,
state, local and foreign income taxes at any time shall not exceed
the lesser of (A) the amount of such federal, state and foreign
income taxes owing by Holdings at such time for the respective
period and (B) the amount of such federal, state, local and foreign
income taxes that would be owing by the Company and its Subsidiaries
on a consolidated basis for such period if determined without regard
to Holdings' ownership of the Company and (y) any refunds shall
promptly be returned by Holdings to the Company; and
(12) additional Restricted Payments not to exceed
$15,000,000 in the aggregate.
(c) The amount of all Restricted Payments (other than cash) shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.10 shall be determined by the Board of Directors of the
Company, whose resolution with respect thereto shall be delivered to the
Trustee.
SECTION 4.11. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, incur or suffer to exist, any Lien (other
than Permitted Liens or Liens securing Senior Debt or Guarantor Senior Debt)
upon any of its property (including Capital Stock of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, or any interest therein
or any income or profits therefrom, unless:
(a) if such Lien secures senior subordinated
Indebtedness, the Notes or the applicable Subsidiary Guarantee are
secured on an equal and ratable basis with such Indebtedness; and
(b) if such Lien secures Subordinated Indebtedness, such
Lien shall be subordinated to a Lien securing the Notes or the
applicable Subsidiary Guarantee in the same property as that
securing such Lien to the same extent as such subordinated
obligations are subordinated to the Notes and the Subsidiary
Guarantees,
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in each case until such time as the applicable Indebtedness is no longer secured
by such Lien.
SECTION 4.12. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the
case may be) receives consideration (including by way of relief
from, or by any other Person assuming responsibility for, any
liabilities, contingent or otherwise) at the time of the Asset Sale
at least equal to the Fair Market Value of the assets or Equity
Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by the Company
and evidenced by an Officers' Certificate delivered to the Trustee;
provided, however, that with respect to any Asset Sale or series of
related Asset Sales involving aggregate consideration in excess of
$15,000,000, such determination shall be made by the Company's Board
of Directors and evidenced by a resolution of the Board of
Directors; and
(3) at least 75% (50% in the case of Specified Assets)
of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the following
shall be deemed to be cash:
(A) any liabilities, as shown on the
Company's most recent consolidated balance sheet or in
the Notes thereto, of the Company or any Restricted
Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the
Notes or any Subsidiary Guarantee) that are assumed by
the transferee of any such assets pursuant to an
agreement that releases the Company or such Restricted
Subsidiary from further liability;
(B) any securities, notes or other
obligations received by the Company or any such
Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary
into cash within 90 days of their receipt, to the extent
of the cash received in that conversion;
(C) any Capital Stock or assets of the kind
referred to in Section 4.12(b)(3) or (4); and
(D) accounts receivable of a business,
retained by the Company or one of its Restricted
Subsidiaries following the sale of such business;
provided that such accounts receivable (x) are not past
due more than 60 days and (y) do not
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have a payment date greater than 90 days from the date
of the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of Net Proceeds from an Asset
Sale, the Company or any Restricted Subsidiary may apply those Net Proceeds at
its option:
(1) to repay outstanding Senior Debt of the Company or
any Restricted Subsidiary of the Company (including Indebtedness or
other obligations under any Credit Facility), and thereafter, repay
any other outstanding Indebtedness of the Company or any Restricted
Subsidiary of the Company, and, in each case, if the Indebtedness
repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;
(2) to make one or more capital expenditures to be used
in a Permitted Business;
(3) to acquire all or substantially all of the assets
of, or a majority of the Capital Stock of, another Permitted
Business; and
(4) to acquire other assets that are used or useful in a
Permitted Business.
Pending the final application of any Net Proceeds, the Company or any Restricted
Subsidiary of the Company may temporarily reduce revolving credit borrowings or
otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.12(b) above shall constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, the
Company shall make an offer (an "Asset Sale Offer") to all Holders of Notes and
all holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of notes and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer shall be equal to 100% of principal amount plus accrued and unpaid
interest and Additional Interest, if any, to the date of purchase, and shall be
payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu Indebtedness to be purchased on a pro rata basis in
proportion to the respective principal amounts (or accreted values, as
applicable) of the Notes and such pari passu Indebtedness then outstanding. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset to zero.
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(d) Within 15 Business Days after the Company is obligated to make
an Asset Sale Offer as described in Section 4.12(c), the Company shall send a
written notice, by first-class mail, to the Holders of Notes with a copy to the
Trustee, accompanied by such information regarding the Company and the
Guarantors as the Company in good faith believes shall enable such Holders to
make an informed decision with respect to such Asset Sale Offer. Such notice
shall state, among other things, the purchase price and the purchase date (the
"Purchase Date"), which shall be, subject to any contrary requirements of
applicable law, a Business Day no earlier than 20 Business Days nor later than
60 Business Days from the date such notice is mailed.
(e) Not later than the date upon which written notice of an Asset
Sale Offer is delivered to the Holders of the Notes as provided in Section
4.12(d), the Company shall deliver to the Trustee an Officers' Certificate as to
(1) the amount of the Asset Sale Offer (the "Offer Amount"), (2) the allocation
of the Net Proceeds from the Asset Sale pursuant to which such Asset Sale Offer
is being made and (3) the compliance of such allocation with the provisions of
this Section 4.12. On or before the Purchase Date, the Company shall also
irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or a wholly owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) in Cash Equivalents (other than in those enumerated in clause (2)
of the definition of "Cash Equivalents"), maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately available by the
opening of business, an amount equal to the Offer Amount to be held for payment
in accordance with the provisions of this Section 4.12. Upon the expiration of
the period for which the Asset Sale Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the Notes or portions
thereof that have been properly tendered to and are to be accepted by the
Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the purchase price. In
the event that the aggregate purchase price of the Notes delivered by the
Company to the Trustee is less than the Offer Amount, the Trustee or the Paying
Agent shall deliver the excess to the Company immediately after the expiration
of the Offer Period.
(f) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company or
its agent at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date a telegram, telex, facsimile transmission, electronic mail or
letter setting forth the name of the Holder, the principal amount of the Note
that was delivered for purchase by the Holder and a statement that such Holder
is withdrawing its election to have such Note purchased. If at the expiration of
the Offer Period the aggregate principal of Notes surrendered by Holders exceeds
the Offer Amount, the Company shall select the Notes to be purchased on pro rata
basis for all Notes (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased). Holders whose Notes are purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered.
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(g) At the time the Company or its agent delivers Notes to the
Trustee that are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.12. A Note shall
be deemed to have been accepted for purchase at the time the Trustee or the
Paying Agent mails or delivers payment therefor to the surrendering Holder.
(h) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.12, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.12 by virtue of such conflict.
SECTION 4.13. Limitation on Dividends and Other Payments Affecting Restricted
Subsidiaries.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries,
or with respect to any other interest or participation in, or
measured by, its profits, or pay any indebtedness owed to the
Company or any of its Restricted Subsidiaries, provided that the
priority of any preferred stock in receiving dividends or
liquidating distributions prior to dividends or liquidating
distributions being paid on common stock shall not be deemed to be a
restriction on the ability to make distributions on Capital Stock;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
(b) However, the restrictions set forth in Section 4.13(a) shall not
apply to encumbrances or restrictions existing under or by reason of:
(1) agreements or instruments (including agreements or
instruments governing Existing Indebtedness and Credit Facilities)
as in effect on the Issue Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that the amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings
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are no more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in such
agreements or instruments as in effect on the Issue Date;
(2) Credit Facilities, provided that the encumbrances or
restrictions contained therein are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions
than those contained in the Credit Agreement as in effect on the
Issue Date;
(3) this Indenture, the Notes and the Subsidiary
Guarantees;
(4) applicable law, rule, regulation or order;
(5) Hedging Obligations entered into from time to time;
(6) any instrument of a Person acquired or assumed by
the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition or assumption (except to the extent
such instrument was created, executed, incurred or assumed, as the
case may be, in connection with or in contemplation of such
acquisition) and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings of any such instrument, provided that the amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive,
taken as a whole, with respect to such dividend and other payment
restrictions than those contained in such instrument at the time of
such acquisition or assumption, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the
Person, so acquired, provided, further, that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(7) customary non-assignment provisions in leases,
licenses or other contracts and agreements entered into in the
ordinary course of business;
(8) purchase money obligations or Capital Lease
Obligations for property acquired in the ordinary course of business
that impose restrictions on that property of the nature described in
Section 4.13(a)(3);
(9) any agreement for the sale or other disposition of
the assets or Capital Stock of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending its
sale or other disposition;
(10) Permitted Refinancing Indebtedness, provided that
the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more
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restrictive, taken as a whole, with respect to such dividend and
other payment restrictions, than those contained in the agreements
governing the Indebtedness being refinanced;
(11) Liens securing Indebtedness otherwise permitted to
be incurred under Section 4.11 that limit the right of the debtor to
dispose of the assets subject to such Liens;
(12) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements,
asset sale agreements, sale leaseback agreements, stock sale
agreements and other similar agreements entered into in the ordinary
course of business;
(13) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(14) Indebtedness or other contractual requirements of a
Receivables Subsidiary governing a Qualified Receivables
Transaction, provided that such restrictions apply only to such
Receivables Subsidiary;
(15) any Permitted Investment;
(16) any mortgage financing or mortgage refinancing that
imposes restrictions on the real property securing such
Indebtedness; and
(17) any agreement governing Indebtedness permitted to
be incurred pursuant to Section 4.09; provided that (A) the
provisions relating to such Indebtedness, taken as a whole, are not
materially more restrictive as determined by the Board of Directors
of the Company than the provisions contained in the Credit Agreement
or in this Indenture as in effect on the Issue Date and (B) such
encumbrance or restriction is not expected to make the Company
unable to make principal or interest payments on the Notes, as
determined in good faith by the Board of Directors of the Company.
SECTION 4.14. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) the 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 if in the good faith judgment of the Board of Directors
of the Company no
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comparable transaction is available with which to compare such
Affiliate Transaction, and such Affiliate Transaction is otherwise
fair to the Company or the relevant Restricted Subsidiary from a
financial point of view; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate
Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of
$5,000,000, a resolution of the Board of Directors of
the Company set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with
this Section 4.14 and that such Affiliate Transaction
has been approved by a majority of the disinterested
members of the Board of Directors of the Company; and
(B) with respect to any Affiliate
Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of
$15,000,000 or with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving
aggregate consideration in excess of $5,000,000 as to
which there are no disinterested members of the Board of
Directors of the Company or as to which the Company or
such Restricted Subsidiary otherwise chooses, an opinion
as to the fairness to the Company of such Affiliate
Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of
national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
4.14(a):
(1) any employment agreement or employee benefit plan
(including any incentive plan) or similar arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary
course of business with officers, directors or employees of
Holdings, the Company or any such Restricted Subsidiary, including
any issuance of securities (including stock options or similar
rights), or other payments, awards or grants in cash, securities
(including stock options or similar rights) or otherwise pursuant
to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the Board of Directors of Holdings
or the Company, as the case may be, in the ordinary course of
business;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of
the Company solely because the Company owns an Equity Interest in,
or controls, such Person;
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(4) payment of reasonable compensation, fees (including
director's fees and benefits), and indemnities and insurance
provided for by Holdings' or the Company's charter, by-laws and
written agreements, to employees, consultants, stockholders,
officers and directors of Holdings, the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(5) issuances and sales of Equity Interests (other than
Disqualified Stock) to, or receipt of capital contributions from,
Affiliates of the Company;
(6) Restricted Payments and Permitted Investments that
are permitted by Section 4.10;
(7) any transaction pursuant to any agreement in
existence on the Issue Date, as such agreement is in effect on the
Issue Date;
(8) transactions (A) between the Company or any of its
Restricted Subsidiaries and a Receivables Subsidiary and (B) between
a Receivables Subsidiary and any Person in which such Receivables
Subsidiary has an Investment that in the case of (A) or (B) above,
in the good faith determination of the Board of Directors of the
Company, are necessary or advisable to effect the Qualified
Receivables Transaction;
(9) payments, advances or loans to employees, officers
and directors of Holdings, the Company, and its Restricted
Subsidiaries that are approved by a majority of the Board of
Directors of the Company or Holdings, as the case may be, in good
faith in an aggregate amount not to exceed $3,000,000 in an
aggregate principal amount at any time outstanding;
(10) provision of administrative or management services
by Holdings, the Company or its Subsidiaries or any of their
directors, officers or employees to any of their respective
Subsidiaries in the ordinary course of business;
(11) pledges of Equity Interests of Unrestricted
Subsidiaries for the benefit of lenders of Unrestricted
Subsidiaries;
(12) consummation of the Acquisition Transactions,
including but not limited to execution and consummation of the
Acquisition Transactions Agreements and the payment of all fees,
expenses, consideration and other amounts paid or to be paid in
connection therewith;
(13) payments by the Company or any of its Restricted
Subsidiaries to Fox Paine and its Affiliates for any financial
advisory, financing, underwriting or other placement services or in
respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which
payments are approved
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by a majority of the members of the Board of Directors of the
Company, and payments pursuant to the Management Fee Letter and any
amendment or supplement thereto that is no less favorable to the
Company than such management agreement as in effect on the Issue
Date; and
(14) the existence of, or the performance by Holdings,
the Company or any of its Restricted Subsidiaries of its obligations
under the terms of any stockholders' agreement (including any
registration rights agreement or purchase agreement related thereto)
to which it is a party as of the Issue Date and any similar
agreements which it may enter into thereafter, provided, however,
that the existence of, or the performance by Holdings, the Company
or any of its Restricted Subsidiaries of obligations under any
future amendment to any such existing agreement or under any similar
agreement entered into after the Issue Date shall only be permitted
by this clause (14) to the extent that the terms of the amendment or
new agreement are not otherwise disadvantageous to the Holders of
notes in any material respect.
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary properly
designated shall be deemed to be an Investment made as of the time of the
designation and shall reduce the amount available for Restricted Payments under
Section 4.10(a) or under one or more clauses of the definition of "Permitted
Investments," as determined by the Company. That designation shall only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
SECTION 4.16. Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Notes unless such consideration is offered to be paid and is paid to all Holders
of the Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
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SECTION 4.17 Reports.
Whether or not required by the Commission, so long as any notes are
outstanding, Holdings shall furnish to the Holders of Notes, within the time
periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if Holdings were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a report
on the annual financial statements by Holdings' certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if Holdings were required to file such reports.
In addition, following the consummation of the exchange offer
contemplated by the Registration Rights Agreement, whether or not required by
the Commission, Holdings shall file a copy of all of the information and reports
referred to in clauses (1) and (2) above with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission shall not accept such a filing) and make such
information available to prospective investors upon request. In addition, the
Company, Holdings and the Subsidiary Guarantors have agreed that, for so long as
the Notes are not freely transferable under the Securities Act, they shall
furnish to the Holders and to prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.18 Creation of Subsidiaries; Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary (other than a Receivables Subsidiary) after
the Issue Date, excluding all Subsidiaries that have properly been designated as
Unrestricted Subsidiaries in accordance with this Indenture for so long as they
continue to constitute Unrestricted Subsidiaries, and that newly acquired or
created Domestic Subsidiary guarantees Indebtedness under the Credit Agreement,
then that newly acquired or created Domestic Subsidiary shall become a
Subsidiary Guarantor and execute a supplemental indenture and deliver an Opinion
of Counsel satisfactory to the Trustee within 10 Business Days of the date on
which it was acquired or created.
SECTION 4.19 Prohibition on Incurrence of Senior Subordinated Debt.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company that is a Subsidiary Guarantor to, incur or suffer to
exist Indebtedness that is senior in right of payment to the Notes or such
Subsidiary Guarantor's Subsidiary Guarantee, as the case
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may be, and subordinate in right of payment to any other Indebtedness of the
Company or such Subsidiary Guarantor, as the case may be.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation and Sale of Assets.
(a) The Company may not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person; unless:
(1) either: (A) the Company is the surviving corporation; or (B) the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, conveyance
or other disposition has been made is a corporation organized or existing
under the laws of the United States, any state of the United States or the
District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this Indenture
and the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists;
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been made
shall, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred
at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Leverage
Ratio test set forth in Section 4.09(a); and
(5) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company) shall deliver, or
cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction and the supplemental
indenture, if any, in respect thereof comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
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In addition, the Company may not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 shall not apply to the
merger or consolidation of any Restricted Subsidiary of the Company with or into
the Company or any Guarantor or to a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and any of the
Guarantors.
Notwithstanding the foregoing clauses (3) and (4), the Company may
merge with an Affiliate incorporated solely for the purpose of reincorporating
the Company in any state of the United States or the District of Columbia.
(b) A Subsidiary Guarantor may not sell or otherwise dispose of all
or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person, other
than the Company or another Guarantor, unless:
(1) except in the event such Subsidiary Guarantor is the surviving
Person, immediately after giving effect to that transaction, no Default or
Event of Default exists; and
(2) either:
(A) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of such
Subsidiary Guarantor under this Indenture, its Subsidiary Guarantee
and the Registration Rights Agreement pursuant to a supplemental
indenture satisfactory to the Trustee; or
(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this
Indenture; and
(3) the Subsidiary Guarantor or the Person formed by or surviving
any such consolidation or merger (if other than the Subsidiary Guarantor)
shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such transaction and the
supplemental indenture, if any, in respect thereof comply with this
Section 5.01 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of either the Company or any Subsidiary
Guarantor in accordance with Section 5.01 above other than in the circumstances
described in clause (1) or (2) of Section 10.03, the successor cor-
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poration formed by such consolidation or into which the Company is merged or to
which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power the Company or such Subsidiary Guarantor under
this Indenture with the same effect as if such successor corporation had been
named as the Company or such Subsidiary Guarantor herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Notes and the applicable Guarantee, as the case may be.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest on, or
Additional Interest with respect to, the Notes (whether or not prohibited
by Article Eleven);
(2) default in payment when due of the principal of, or premium, if
any, on the Notes (whether or not prohibited by Article Eleven);
(3) failure by the Company or any of its Restricted Subsidiaries for
30 days after notice from the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes to comply with the
repurchase obligation under Section 4.08, the repurchase obligation under
Section 4.12 or Section 5.01 (whether or not prohibited by Article
Eleven);
(4) failure by the Company or any of its Restricted Subsidiaries to
comply with any of the other agreements in this Indenture for 60 days
after written notice to the Company specifying such failure ("Notice of
Default") from the Trustee or Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to pay principal at final maturity
on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a
"Payment Default"), or
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(B) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10,000,000 or more;
(6) failure by the Company or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $10,000,000 to the extent
such judgment is not covered by insurance or is in excess of insurance
coverage, which judgments are not paid, discharged or stayed for a period
of 60 days;
(7) except as permitted by this Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor, shall deny or disaffirm its obligations under its Guarantee;
(8) the Company or any Significant Subsidiary (other than PII)
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary insolvency proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary insolvency proceeding or consents to its dissolution
or winding-up;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its Property; or
(D) makes a general assignment for the benefit of its
creditors.
(E) or takes any comparable action under any foreign laws
relating to insolvency; provided, however, that the liquidation of
any Restricted Subsidiary into another Restricted Subsidiary, other
than as part of a credit reorganization, shall not constitute an
Event of Default under this Section 6.01(8); or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against any Significant Subsidiary in an
involuntary insolvency proceeding;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its Property; or
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(C) orders the winding up, liquidation or dissolution of the
Company or any Significant Subsidiary;
(D) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in effect
for 90 days.
SECTION 6.02. Acceleration of Maturity; Rescission.
(a) In the case of an Event of Default arising under Section 6.01(8)
and Section 6.01(9), with respect to the Company or any of its Significant
Subsidiaries, all outstanding notes shall become due and payable immediately
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately by notice in writing to the Company (and to the Trustee if given by
the Holders) (an "Acceleration Notice"); provided, however, that if any Senior
Debt is outstanding pursuant to a Credit Facility, upon a declaration of such
acceleration, such principal and interest shall be due and payable upon the
earlier of (x) the fifth Business Day after sending the Company and the
representative under such Credit Facility such Acceleration Notice, unless such
Event of Default is cured or waived prior to such date and (y) the date of
acceleration of any Senior Debt under such Credit Facility. The Holders of a
majority in principal amount of the Notes by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
(b) In the event of a declaration of acceleration of the Notes
because an Event of Default described in Section 6.01(5) has occurred and is
continuing, the declaration of acceleration of the Notes shall be automatically
annulled if the Payment Default or other default triggering such Event of
Default pursuant to Section 6.01(5) shall be remedied or cured by the Company or
a Restricted Subsidiary of the Company or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto and if (1) the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction and
(2) all existing Events of Default, except nonpayment of principal, premium or
interest on the Notes that became due solely because of the acceleration of the
Notes, have been cured or waived.
(c) Subject to Section 7.01, in case an Event of Default shall occur
and be continuing, the Trustee shall be under no obligation to exercise any of
its rights or powers under this Indenture at the request or direction of any of
the Holders of the Notes, unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to Section 7.07, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any con-
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tinuing Default or Event of Default if it determines that withholding notice is
in their interest, except a Default or Event of Default relating to the payment
of principal or interest or Additional Interest.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
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. Any such
proceeding instituted by the Trustee may be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after
provisions for the payment of the reasonable compensation, expenses,
disbursements of the Trustee and its counsel, be for the ratable benefit of the
Holders of the Notes in respect of which such judgment has been recovered. 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative, to the
extent permitted by law. Any costs associated with actions taken by the Trustee
under this Section 6.03 shall be reimbursed to the Trustee by the Company.
SECTION 6.04. Waiver of Past Defaults and Events of Default.
Provided the Notes are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in principal amount of
Notes at the time outstanding by notice to the Trustee may on behalf of the
Holders of all the Notes waive any existing Default or Event of Default and its
consequences under this Indenture, except a continuing Default or Event of
Default (1) in the payment of interest or Additional Interest on, or the
principal of, the Notes or (2) in respect of a covenant or provision hereof
which under this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Note affected. In the case of any such waiver,
the Company, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights under this Indenture, respectively; provided that no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee,
subject to certain exceptions.
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SECTION 6.06. Limitation on Suits.
No Holder of Notes shall have any right to institute any proceeding
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any remedy hereunder unless:
(1) the Holder gives the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to institute such
proceeding or to pursue such remedy as trustee;
(3) such Holder or Holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, 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 at least a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
However, such limitations do not apply to a suit instituted by a
Holder of any Note for enforcement of payment of the principal of, and premium,
if any, or interest on, such Note on or after the respective due date expressed
in such Note. A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator, agent, member, stockholder or Affiliate of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or the Guarantors under the Notes, the Indenture, the Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes and Guarantees by accepting a Note and a
Guarantee waives and releases all such liabilities. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees. The
waiver may not be effective to waive liabilities under the federal securities
laws.
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SECTION 6.08. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of the principal of or premium, if any,
or interest, if any, on such Note or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes shall not be
impaired or affected without the consent of the Holder.
SECTION 6.09. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any Guarantor (or any other obligor on the Notes) for the whole
amount of unpaid principal and accrued interest remaining unpaid.
SECTION 6.10. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company or any Guarantor (or any other
obligor upon the Notes), its creditors or its Property and, unless prohibited by
law, shall be entitled and empowered to collect and receive any monies or other
Property payable or deliverable on any such claims and to distribute the same
after deduction of its charges and expenses to the extent that any such charges
and expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceedings. All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the
Trustee without the possession of any of the Notes thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
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SECTION 6.11. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional
Interest, if any) as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.11.
SECTION 6.12. 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 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 and expenses, 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 6.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.08 or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee
shall be required, in the exercise of its power, to use the degree of care of a
prudent man in the conduct of his own affairs.
The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
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(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only such duties as are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith or willful misconduct 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 but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein). Whenever in the
administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate, subject to the
requirement in the preceding sentence, if applicable.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of Section 7.01(b).
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction of the
Holders of a majority in aggregate principal amount of the Notes received
by it pursuant to the terms hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights, powers or duties if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, Sections 7.01(a),
(b), (c) and (e) shall govern every provision of this Indenture that in any way
relates to the Trustee.
(e) The Trustee shall be under no obligation to exercise any of its
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to
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this Indenture at the request of any Holder of Notes, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may conclusively rely on any document (whether in
its original or facsimile form) reasonably believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel with respect to legal matters relating
to the Notes or this Indenture shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(6) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
person employed to act hereunder.
(7) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice,
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request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books records, and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(8) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not suspended.
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 make loans to, accept deposits from, perform
services for or otherwise deal with either of the Company or any Guarantor, or
any Affiliate thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The Trustee, however, shall
be subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes or any Guarantee,
it shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Company or any
Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements made by it
in any Statement of Eligibility and Qualification on Form T-1 to be supplied to
the Company shall be true and accurate subject to the qualifications set forth
therein.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder a notice of the Default within 90
days after it occurs in the manner and to the extent provided in the TIA and
otherwise as provided in this Indenture. Except in the case of a Default in
payment of the principal of or interest or Additional Interest on any Note
(including payments pursuant to a redemption or repurchase of the Notes pursuant
to the provisions of this Indenture), the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Holders.
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SECTION 7.06. Reports by Trustee to Holders.
(a) If required by TIA Section 313(a), within 60 days after June 15
of any year, commencing 2004 the Trustee shall mail to each Holder a brief
report dated as of such date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the 12 months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c) and TIA Section 313(d).
(b) 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 to the extent required by such entities. The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange or delisted
therefrom.
SECTION 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and Agents
from time to time such compensation for their services hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as shall be agreed upon in
writing. The Company and the Guarantors shall reimburse the Trustee and Agents
upon request for all reasonable disbursements, expenses and advances incurred or
made by them in connection with the Trustee's duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and external counsel, except any expense disbursement or
advance as may be attributable to its willful misconduct, negligence or bad
faith.
The Company and the Guarantors, jointly and severally, shall fully
indemnify each of the Trustee and any predecessor Trustee for, and hold each of
them harmless against, any and all loss, damage, claim, liability or expense,
including without limitation taxes (other than taxes based on the income of the
Trustee or such Agent) and reasonable attorneys' fees and expenses incurred by
each of them in connection with the acceptance or performance of its duties
under this Indenture including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee or Agent shall notify the Company and
the Guarantors in writing promptly of any claim of which a Responsible Officer
of the Trustee has actual knowledge asserted against the Trustee or Agent for
which it may seek indemnity; provided that the failure by the Trustee or Agent
to so notify the Company and the Guarantors shall not relieve the Company and
Guarantors of their obligations hereunder except to the extent the Company and
the Guarantors are actually prejudiced thereby. In the event that a conflict of
interest exists, the Trustee may have separate counsel, which counsel must be
reasonably acceptable to the Company and the Company shall pay the reasonable
fees and expenses of such counsel.
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Notwithstanding the foregoing, the Company and the Guarantors need
not reimburse the Trustee for any expense or indemnify it against any loss or
liability to have been incurred by the Trustee through its own willful
misconduct, negligence or bad faith.
To secure the payment obligations of the Company and the Guarantors
in this Section 7.07, the Trustee shall have a lien prior to the Notes on all
money or Property held or collected by the Trustee and such money or Property
held in trust to pay principal of and interest on particular Notes.
The obligations of the Company and the Guarantors under this Section
7.07 to compensate and indemnify the Trustee, Agents and each predecessor
Trustee and to pay or reimburse the Trustee, Agents and each predecessor Trustee
for expenses, disbursements and advances shall be joint and several liabilities
of the Company and each of the Guarantors and shall survive the resignation or
removal of the Trustee and the satisfaction, discharge or other termination of
this Indenture, including any termination or rejection hereof under any
Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(8) or (9) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to this Article Seven.
SECTION 7.08. Replacement of Trustee.
(a) The Trustee shall comply with Section 313(b) of the TIA, to the
extent applicable.
(b) The Trustee may resign by so notifying the Company and the
Guarantors in writing no later than 15 Business Days prior to the date of the
proposed resignation. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 or Section 310 of
the TIA;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee
or its Property; or
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(4) the Trustee otherwise becomes incapable of acting.
(c) 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.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
the Guarantors or the Holders of a majority in principal amount of the
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) 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.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Guarantors.
Immediately following such delivery, the retiring Trustee shall, subject to its
rights under Section 7.07, transfer all Property held by it as Trustee to the
successor Trustee, 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. A successor Trustee shall mail
notice of its succession to each Holder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10, the successor corporation without any
further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $50,000,000 as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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SECTION 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it shall hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(2) that it shall at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(3) that it shall give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders.
(a) Without the consent of any Holder of Notes, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's or such
Guarantor's assets;
(4) to comply with the rules of any applicable securities
Depositary;
(5) to comply with Section 5.01;
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(6) to add to the agreements and covenants of Holdings, the Company
and its Restricted Subsidiaries for the benefit of the Holders or
surrender any right or power conferred upon Holdings, the Company or any
of its Restricted Subsidiaries;
(7) to evidence and provide for the acceptance and appointment under
this Indenture of a successor trustee pursuant to the requirements
thereof;
(8) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the
legal rights under this Indenture of any such Holder (including, but not
limited to, adding a Guarantor under this Indenture);
(9) to provide for the issuance of the exchange notes and the
related Guarantees or Additional Notes and the related Guarantees; and
(10) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 8.02. With Consent of Holders.
(a) This Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes),
and any existing default or compliance with any provision of this Indenture or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes).
(b) Without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other
than pursuant to Section 4.08 and Section 4.12);
(3) reduce the rate of or change the time for payment of interest on
any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or interest or premium, or Additional Interest, if any, on the Notes
(except a rescission of ac-
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celeration 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);
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of notes to receive
payments of principal of, or interest or premium or Additional Interest,
if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by pursuant to Section 4.08 and Section 4.12);
(8) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or this Indenture, except in accordance
with the terms of this Indenture;
(9) make any change to Article Eleven that adversely affect the
Holders; or
(10) make any change to this Section 8.02 or Section 8.01.
(c) The consent of the Holders of the Notes shall not be necessary
to approve the particular form of any proposed amendment. It shall be sufficient
if such consent approves the substance of the proposed amendment.
(d) After an amendment that requires the consent of the Holders of
Notes becomes effective, the Company shall mail to each registered Holder of the
Notes at such Holder's address appearing in the security register a notice
briefly describing such amendment. However, the failure to give such notice to
all Holders of the Notes, or any defect therein, shall not impair or affect the
validity of the amendment.
(e) Upon the written request of the Company accompanied by a board
resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may, but shall not be obligated
to, enter into such supplemental indenture.
(f) Notwithstanding the foregoing, without the consents of the
requisite lenders under the Credit Agreement, no amendment may be made to the
subordination provisions described in Section 10.06 and Article Eleven.
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SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
(a) After an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding Section 8.04(a), those Persons who were Holders at such record
date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
SECTION 8.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Company)
shall request the Holder of the Note (in accordance with the specific written
direction of the Company) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, the Guarantors
shall endorse and the Trustee shall authenticate a new Note that reflects the
changed terms. 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 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
does not affect the rights, duties, liabilities or immunities of the Trustee. If
it does affect the rights, duties, liabilities or immunities of the Trustee, the
Trustee may, but need not, sign such amendment, supplement or waiver. In signing
or refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section
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12.04, that such amendment, supplement or waiver is authorized or permitted by
this Indenture and is a legal, valid and binding obligation of the Company and
the Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms (subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance.
(a) This Indenture shall be discharged and shall cease to be of
further effect as to all Notes, and related guarantees, issued hereunder when:
(1) either:
(A) all Notes that have been authenticated, except lost, stolen
or destroyed Notes that have been replaced or paid and Notes for
whose payment money has been deposited in trust and thereafter
repaid to the Company, have been delivered to the Trustee for
cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of
a notice of redemption or otherwise or shall become due and payable
within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S.
Dollars, non-callable Government Securities, or a combination of
cash in U.S. Dollars and non-callable Government Securities, in
amounts as shall be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Additional Interest, if any,
and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of the deposit or shall occur as a result of the deposit and the
deposit shall not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company or any Guarantor
is a party or by which the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture; and
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(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the Redemption Date, as the case may
be.
In addition, the Company must deliver an Officers' Certificate and
an Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
(b) Subject to Sections 9.01(c) and 9.02, the Company may, at its
option and at any time, elect to have all of its obligations discharged with
respect to the outstanding notes and all obligations of the Guarantors
discharged with respect to their Guarantees ("Legal Defeasance"). At any time,
the Company may, at its option, elect to have the obligations of the Company and
the Guarantors released (i) under Sections 4.03 through 4.19, inclusive, (ii)
under Sections 6.01(3) (insofar as it applies to Sections 4.08, 4.12,
5.01(a)(4), (a)(5), (b)(2)(B) and (b)(3)), Section 6.01(4) (with respect to
Article Four, other than Sections 4.01, 4.02 and the required offer provisions
of Sections 4.08 and 4.12), Sections 6.01(5), (6), (7), (8), (9) (in the case of
Sections 6.01(8) and (9), with respect to Significant Subsidiaries only) and
(iii) under Section 5.01(a)(4), (a)(5), (b)(2)(B) and (b)(3) on a date the
conditions set forth in Section 9.02 have been satisfied (hereinafter, "Covenant
Defeasance") and thereafter any omission to comply with those covenants shall
not constitute a Default or Event of Default with respect to the Notes. The
Company may exercise its Legal Defeasance option notwithstanding its prior
exercise of its Covenant Defeasance option.
(c) If the Company exercises its Legal Defeasance option, payment of
the Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its Covenant Defeasance option, payment of the
Notes may not be accelerated because of an Event of Default as described in
Section 6.01(3) (insofar as such Event of Default applies to obligations under
Sections 4.08, 4.12, 5.01(a)(4), (a)(5), (b)(2)(B) and (b)(3)), or under
Sections Section 6.01(4) (insofar as such Event of Default applies to Sections
4.03 through 4.19, inclusive, other than the required offer provisions of
Section 4.08 and 4.12), under Section 6.01(5), (6), (7), (8) and (9) (in the
case of Sections 6.01(8) and (9), with respect to Significant Subsidiaries
only). If the Company exercises its Legal Defeasance option, each Guarantor, if
any, shall be released from all its obligations under its Guarantee, and the
Trustee shall execute a release of such Guarantee. If the Company exercises its
Covenant Defeasance option, each Guarantor, if any, shall be released from its
obligations under its Guarantee to the extent that the Company is released from
its obligations under this Indenture.
(d) Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(e) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.06, 2.07, 2.08, 2.11, 4.01, 4.02, 7.01, 7.02,
7.07, 9.05 and 9.06 and any other
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obligations required under the TIA shall survive until such time as the Notes
have been paid in full. Thereafter, the Company's obligations in Sections 7.07,
9.05 and 9.06 and any other obligations required under the TIA shall survive.
SECTION 9.02. Conditions to Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. Dollars,
non-callable Government Securities, or a combination of cash in U.S.
Dollars and non-callable Government Securities, in amounts as shall be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, or interest and premium and
Additional Interest, if any, on the outstanding Notes on the stated
maturity or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or
to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the Issue Date, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding Notes shall
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and shall be subject to federal income tax
on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and shall be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default has occurred and is 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);
(5) 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 Restricted Subsidiaries is a party or by which the Company
or any of its Restricted Subsidiaries is bound;
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(6) the Company must deliver 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
(7) the Company must deliver 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.
However, the Opinion of Counsel required by clause (2) above shall
not be required if all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, shall become due and payable on their
maturity date within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the Company's name, and at the Company's expense.
SECTION 9.03. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions.
All money and Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 9.02(a) in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company and the Guarantors shall (on a joint and several basis)
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Securities deposited pursuant to Section 9.02(a)
or the principal, premium, if any, and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon a request of
the Company any money or Government Securities held by it as provided in Section
9.02(a) which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any
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order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's and each Guarantor's
obligations under this Indenture, the Notes and the Guarantees shall be revived
and reinstated as though no deposit had occurred pursuant to this Article Nine
until such time as the Trustee or Paying Agent is permitted to apply all such
money or Government Securities in accordance with Section 9.01; provided that if
the Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
SECTION 9.05. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.02(a), to the
Company upon a request of the Company (or, if such moneys had been deposited by
the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.06. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Company or the Guarantors in trust for the payment of the principal
of or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon a request of the Company, or if such moneys
are then held by the Company or the Guarantors in trust, such moneys shall be
released from such trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company and the Guarantors for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided that the Trustee or any such Paying Agent, before being required
to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Holder affected, at the address shown in the
Register maintained by the Registrar pursuant to Section 2.04, or cause to be
published once a week for two successive weeks, in a newspaper published in the
English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a 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 mailing or publication, any unclaimed balance of
such moneys then remaining shall be repaid to the Company. After payment to the
Company or the Guarantors or the release of any money held in trust by the
Company or any Guarantors, as the case may be, Holders entitled to the money
must look only to
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the Company and the Guarantors for payment as general creditors unless
applicable abandoned property law designates another Person.
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.
The Guarantors, fully and unconditionally, jointly and severally, on
an unsecured senior subordinated basis, guarantee to each Holder (i) the due and
punctual payment of the principal of, premium (if any) and interest on each
Note, when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of and interest on the Notes, to the extent lawful, and the
due and punctual payment of all other obligations and due and punctual
performance of all obligations of the Company to the Holders or the Trustee all
in accordance with the terms of such Note, this Indenture and the Registration
Rights Agreement, and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note, this Indenture or the Registration
Rights Agreement, any waiver, modification or indulgence granted to the Company
with respect thereto by the Holder of such Note, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety or
such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand for
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee shall not
be discharged as to any such Note except by payment in full of the principal
thereof, premium (if any) and interest thereon. Each Guarantor hereby agrees
that, as between such Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any declaration of acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of this Guarantee.
The Guarantee of any Guarantor may be released pursuant to Section
4.18 or Section 10.03.
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The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of any Holder under the Guarantees.
SECTION 10.02. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 10.01, each
Guarantor hereby agrees, on the Issue Date, that a notation of such Guarantee,
substantially in the form included in Exhibit F hereto, shall be endorsed on
each Note authenticated and delivered by the Trustee on the Issue Date and such
Guarantee shall be executed by either manual or facsimile signature of an
Officer of each Guarantor. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 10.01 shall be in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or
a Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 10.03. Release of Subsidiary Guarantors.
The Subsidiary Guarantee of a Subsidiary Guarantor shall be
automatically released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of that Subsidiary Guarantor (including by
way of merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) a Restricted Subsidiary of the
Company, if the sale or other disposition complies with Section 4.12;
(2) in connection with any sale of all of the Capital Stock of a
Subsidiary Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the Company,
if the sale complies with Section 4.12;
(3) if the Company designates any Restricted Subsidiary that is a
Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture;
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(4) in connection with any Legal Defeasance or Covenant Defeasance
of the Notes in accordance with the terms of this Indenture; or
(5) if the applicable Guarantor no longer guarantees Indebtedness
under the Credit Agreement;
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.
In addition, in the event a Guarantor becomes a Guarantor solely
because it Guarantees other Indebtedness, then upon the full and unconditional
release of the Guarantee of such other Indebtedness (provided that the Trustee
is given 90 days written notice of such other release) such Guarantee of such
Guarantor shall also be released.
The Trustee shall execute any documents reasonably requested by
either 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 Ten.
SECTION 10.04. Waiver of Subrogation.
Until all the obligations under the Notes and the Guarantees are
satisfied in full, each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under its Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other Property or by set-off or in any other manner,
payment or Note on account of such claim or other rights. 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 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 the terms of this Indenture. Each Guarantor
acknowledges that it shall receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.04 is knowingly made in contemplation of such benefits.
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SECTION 10.05. Notice to Trustee.
The Company or any Guarantor shall give prompt written notice to the
Trustee of any fact known to the Company or any such Guarantor which would
prohibit the making of any payment to or by the Trustee at its Corporate Trust
Office in respect of the Guarantees. Notwithstanding the provisions of this
Article Ten or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Guarantees, unless
and until the Trustee shall have received written notice thereof from the
Company no later than one Business Day prior to such payment; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 10.05, and subject to the provisions of Sections 7.01 and 7.02,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice referred to in
this Section 10.05 at least one Business Day prior to the date upon which by the
terms hereof any such payment may become payable for any purpose under this
Indenture (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date.
SECTION 10.06. Subordination of Guarantee.
The obligations of each Guarantor under its Guarantee pursuant to
this Article Ten shall be junior and subordinated to the Guarantor Senior Debt
of such Guarantor on the same basis as the Notes are junior and subordinated to
the Senior Debt of the Company. For the purposes of the foregoing sentence, and
notwithstanding anything to the contrary contained herein, the Trustee and the
Holders shall have the right to receive and/or retain payments by any of the
Guarantors (or any Persons acting on their behalf) only at such times as they
may receive and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article Eleven, and the Holders of Senior Debt shall have
the same rights and remedies provided for in Article Eleven.
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Notes Subordinated to Senior Debt.
The Indebtedness evidenced by the Notes and the Guarantees shall be
senior subordinated unsecured obligations of the Company and the Guarantors, as
the case may be. The Notes shall in all respects rank pari passu with all other
senior subordinated debt of the Company. The terms of the subordination
provisions described in this Article Eleven with respect to
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the Company's obligations under the Notes apply equally to each Guarantor and
the Obligations of such Guarantors under their respective Guarantees.
The payment of all Obligations on or relating to the Notes is
subordinated in right of payment to the prior payment in full in cash or Cash
Equivalents of all Obligations on Senior Debt of the Company (including all
Obligations with respect to the Credit Agreement). Notwithstanding the
foregoing, payments and distributions made relating to the Notes pursuant to the
trust described pursuant to Section 9.01 shall not be so subordinated in right
of payment so long as the payments into the trust were made in accordance with
the requirements pursuant to Section 9.01 and did not violate the subordination
provisions when they were made.
This Article Eleven shall constitute a continuing benefit to all
Persons who become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt and such
holders are made obligees hereunder and any one or more of them may enforce such
provisions.
SECTION 11.02. Suspension of Payment When Senior Debt Is in Default.
(a) The Company also may not make any payment or distribution of any
kind or character with respect to any Obligations on, or relating to, the Notes
or acquire any Notes for cash or property or otherwise (other than Permitted
Junior Securities) if:
(1) a Payment Default on any Senior Debt occurs and is continuing;
or
(2) any other default occurs and is continuing on Designated Senior
Debt that permits holders of the Designated Senior Debt to accelerate its
maturity (a "Non-Payment Default") and the Trustee receives a notice of
such default (a "Payment Blockage Notice") from the Representative of any
Designated Senior Debt.
(b) Payments on and distributions with respect to any Obligations
on, or with respect to, the Notes may and shall be resumed:
(1) in the case of a Payment Default, upon the date on which such
default is cured or waived; and
(2) in case of a Non-Payment Default, the earliest of (x) the date
on which all Non-Payment Defaults are cured or waived (so long as no other
event of default exists), (y) 180 days after the date on which the
applicable Payment Blockage Notice is received, or (z) the date on which
the Trustee receives notice from the Representative for such Designated
Senior Debt rescinding the Payment Blockage Notice, unless the maturity of
any Designated Senior Debt has been accelerated and such acceleration has
not been waived. For the purpose of this clause (2), discharge or payment
in full of Designated Senior Debt in accordance with its terms shall be
the equivalent of a cure of an underlying default.
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(c) No new Payment Blockage Notice may be delivered unless and until
360 days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice.
(d) No Non-Payment Default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless such default
shall have been cured or waived for a period of not less than 180 consecutive
days (it being acknowledged that any subsequent action, or any breach of any
financial covenants for a period commencing after the date of delivery of such
initial Payment Blockage Notice that in either case would give rise to a default
pursuant to any provisions under which a default previously existed or was
continuing shall constitute a new default for this purpose).
(e) The holders of Senior Debt shall be entitled to receive payment
in full in cash or Cash Equivalents of all Obligations due in respect of Senior
Debt (including interest accruing after the commencement of any bankruptcy or
other like proceeding at the rate specified in the applicable Senior Debt
whether or not such interest is an allowed claim in any such proceeding) before
the Holders of Notes shall be entitled to receive any payment or distribution of
any kind or character with respect to any Obligations on, or relating to, the
Notes (other than a payment or distribution of Permitted Junior Securities) in
the event of any distribution to creditors of the Company:
(1) in a total or partial liquidation, dissolution or winding up of
the Company;
(2) in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its Property;
(3) in an assignment for the benefit of creditors; or
(4) in any marshalling of the Company's assets and liabilities.
(f) Unsecured Indebtedness is not deemed to be subordinate or junior
to secured Indebtedness merely because it is unsecured or receives priority in
respect of asset sales, cash flows or other prepayments and Indebtedness which
has different security or different priorities in the same security shall not be
deemed subordinate or junior to secured Indebtedness no matter what the
differences are.
(g) The Company must promptly notify holders of Senior Debt if
payment of the Notes is accelerated because of an Event of Default.
(h) The terms of the subordination provisions described above shall
not apply to payments from money or of Government Securities, or a combination
thereof, held in trust and deposited at a time when permitted by the
subordination provisions of this Section 11.02 by the
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Trustee for the payment of principal of, premium (if any) and interest on the
Notes pursuant to Section 9.02.
(i) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by the foregoing provisions of this Section 11.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt (pro rata to such holders on the basis of the respective amount of
Senior Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Senior Debt, if any,
received from the holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from the
Company, and only amounts included in the information provided to the Trustee
shall be paid to the holders of Senior Debt.
Nothing contained in this Article Eleven shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Notes and all other Obligations owing under the Notes pursuant to Article Six or
to pursue any rights or remedies hereunder (subject to the rights, if any, under
this Article Eleven, of the holders of Senior Debt in respect of cash, Property
or securities of the Company received upon the exercise of any such remedy);
provided that all Senior Debt thereafter due or declared to be due shall first
be paid in full in cash or Cash Equivalents before the Holders are entitled to
receive any payment of any kind or character with respect to Obligations owing
on, or with respect to, the Notes.
SECTION 11.03. Obligations Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.
(a) Upon any payment or distribution of assets of either the Company
or any Guarantor or its Property of any kind or character, whether in cash,
Property or securities, to creditors upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company or any Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
the Company or its assets, whether voluntary or involuntary, all Obligations in
respect of Senior Debt due or to become due shall first be paid in full in cash,
Cash Equivalents or any other consideration acceptable to the holders of Senior
Debt (including interest after the commencement of any bankruptcy or other like
proceeding at the rate specified in the applicable Senior Debt whether or not
such interest is an allowed claim in any such proceeding), before any payment or
distribution of any kind or character is made on account of any Obligations on,
or with respect to, the Notes or for the acquisition of any of the Notes for
cash or Property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
Property or securities, to which the Holders or the Trustee would be entitled,
except for the provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidat-
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ing trustee, agent or other Person making such payment or distribution, or by
the Holders or by the Trustee if received by it, directly to the holders of
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders) or their respective Representatives, or to the
Trustee or trustees under any indenture pursuant to which any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full in cash or Cash Equivalents after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding paragraph) of the Company's obligation to make any
distribution or payment pursuant to any Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Senior Debt in cash or Cash Equivalents, shall have no force
or effect for purposes of the subordination provisions contained in this Article
Eleven, with any turnover of payments as otherwise calculated pursuant to this
Article Eleven to be made as if no such diminution had occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
Property or securities, shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by this Section 11.03, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt (pro rata to such holders on the
basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the Trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
SECTION 11.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Eleven or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 11.02 and 11.03, from
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making payments at any time for the purpose of making payments of principal of
and interest on the Obligations owing under the Notes, or from depositing with
the Trustee any monies for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Section
11.02 or 11.03, the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of, and interest on, the
Obligations owing under the Notes to the Holders entitled thereto unless at
least one Business Day prior to the date upon which such payment would otherwise
become due and payable the Trustee shall have actually received the written
notice provided for in Section 11.12, in the first sentence of Section 11.02(a)
or in the last sentence of this Section 11.04 (provided that, notwithstanding
the foregoing, the Holders receiving any payments made in contravention of
Sections 11.02 and/or 11.03 (and such payments) shall otherwise be subject to
the provisions of Sections 11.02 and 11.03). The Company shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained herein.
SECTION 11.05. Holders To Be Subrogated to Rights of Holders of Senior Debt.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders shall be subrogated to the rights of the holders of
Senior Debt to receive payments or distributions of cash, Property or securities
of the Company applicable to the Senior Debt until the Obligations owing under
the Notes shall be paid in full; and, for the purposes of such subrogation, no
such payments or distributions to the holders of the Senior Debt by or on behalf
of the Company, or by or on behalf of the Holders by virtue of this Article
Eleven, which otherwise would have been made to the Holders shall, as between
the Company and the Holders, be deemed to be a payment by the Company to or on
account of the Senior Debt, it being understood that the provisions of this
Article Eleven are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior Debt,
on the other hand.
SECTION 11.06. Obligations of the Company Unconditional.
Nothing contained in this Article Eleven or elsewhere in this
Indenture is intended to or shall impair as between the Company and the Holders,
the Obligation of the Company, which is absolute and unconditional, to pay to
the Holders the principal of and any interest on the Obligations owing under 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 other than the holders of Senior Debt, nor shall
anything herein or therein prevent any Holder or the Trustee on its behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eleven, of the
holders of Senior Debt in respect of cash, Property or securities of the Company
received upon the exercise of any such remedy.
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SECTION 11.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
Whenever a distribution is to be made or a notice given to holders
of Designated Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article Eleven, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Debt of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Eleven. Nothing in this Article Eleven
shall apply to the claims of, or payments to, the Trustee in its capacity as
such under or pursuant to Section 7.07. The Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Debt (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Debt or a trustee or representative on behalf of any
such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Eleven, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Eleven, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 11.08. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt or Guarantor Senior Debt may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Trustee or the Holders and
without impairing or releasing the subordination provided in this Article
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Eleven or the obligations hereunder of the Holders to the holders of the Senior
Debt or Guarantor Senior Debt, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Debt or Guarantor Senior Debt, or otherwise amend or supplement
in any manner Senior Debt or Guarantor Senior Debt, or any instrument evidencing
the same or any agreement under which Senior Debt or Guarantor Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any Property
pledged, mortgaged or otherwise securing Senior Debt or Guarantor Senior Debt;
(iii) release any Person liable in any manner for the payment or collection of
Senior Debt or Guarantor Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 11.09. Holders Authorize Trustee To Effectuate Subordination of
Obligations.
Each Holder authorizes and expressly directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate, as
between the holders of Senior Debt and the Holders, the subordination provided
in this Article Eleven, and appoints the Trustee its attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
credits or otherwise) tending towards liquidation of the business and assets of
the Company, the filing of a claim for the unpaid balance of its Obligations
owing under the Notes and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative shall have the right to file and are or is hereby authorized to
file an appropriate claim for and on behalf of the Holders. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior Debt
or their Representative to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations owing under the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 11.10. This Article Eleven Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Obligations owing under the Notes by reason of any provision of this
Article Eleven shall not be construed as preventing the occurrence of an Event
of Default.
SECTION 11.11. Amendments or Modifications to Article Eleven.
No amendment of, or supplement or waiver to, this Indenture shall
adversely affect the rights of any holder of Senior Debt under this Article
Eleven or Article Twelve without
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the consent of such holder of Senior Debt. Notwithstanding anything to the
contrary contained in this Indenture (but without limiting the provisions of the
immediately preceding sentence), no amendment or modification to any provision
of this Article Eleven or the related definitions used herein (other than to
cure any ambiguity, defect, mistake or inconsistency herein, so long as such
amendment or modification does not adversely affect the rights of the holders of
any Senior Debt then outstanding) shall be permitted without the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes) or, if required
by Section 8.02, by each Holder affected.
SECTION 11.12. Notice to Trustee; Rights of Trustee and Paying Agent.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment to or by
the Trustee or any Holder in respect of the Notes or under any Guarantee
pursuant to the provisions of this Article Eleven although any delay or failure
to give any such notice shall have no effect on the subordination provisions
contained herein. Notwithstanding the provisions of this Article Eleven or any
other provision of this Indenture, neither the Trustee nor any Paying Agent
shall be charged with knowledge of the existence of any facts that would
prohibit the making of any payment or distribution by the Trustee or such Paying
Agent, and (in the absence of actual knowledge that the respective payment shall
violate the applicable provisions of this Article Eleven) the Trustee and such
Paying Agent may continue to make payments on the Notes, unless the Trustee or
such Paying Agent shall have received, at least one Business Day prior to the
date of such payment, written notice of facts that would cause the payment of
any Obligations with respect to the Notes to violate this Article Eleven
(although the receipt of such payment shall otherwise be subject to the
applicable provisions of this Article Eleven). Only the Company, a Guarantor, a
holder of Senior Debt or a Representative thereof may give the notice. Nothing
in this Article Eleven shall impair the claims of, or payments to, the Trustee
in its capacity as such under or pursuant to Section 7.07. Nothing in this
Section 11.12 is intended to or shall relieve any Holder of Notes from the
obligations imposed under Sections 11.02 and 11.03 with respect to other
distributions received in violation of the provisions hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall
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control. If any provision of this Indenture modifies any TIA provision that may
be so modified, such TIA provision shall be deemed to apply to this Indenture as
so modified. If any provision of this Indenture excludes any TIA provision that
may be so excluded, such TIA provision shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 12.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and when received if delivered in
person, when receipt is acknowledged if sent by facsimile, on the next Business
Day if timely delivered by a nationally recognized courier service that
guarantees overnight delivery or two Business Days after deposit if mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Seminis Vegetable Seeds, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attn: General Counsel
With a copy to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Attn: Howard Kelberg, Esq.
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attn: Mitchell S. Presser, Esq.
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If to the Trustee, Registrar or Paying Agent:
Wells Fargo Bank, National Association
MAC E2818-176
17th Floor
707 Wilshire Blvd.
Los Angeles, CA 90017
Attn: Corporate Trust Administrator
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the Register.
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 to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture (except for the issuance of
Notes on the Issue Date), the Company or such Guarantor shall furnish to the
Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent,
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if any, provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate and Opinion.
Each certificate (other than certificates provided pursuant to
Section 4.06) and opinion with respect to compliance by or on behalf of the
Company or any Guarantor with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or other day on which (i)
commercial banks in the City of New York are authorized or required by law to
close or (ii) the New York Stock Exchange is not open for trading. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 12.08. Governing Law.
This Indenture, the Notes and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York, but without
giving effect to applicable
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principles of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10. Successors.
All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee, any additional trustee and any Paying Agents in this Indenture shall
bind its successor.
SECTION 12.11. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 12.12. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet 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 hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.13. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or 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.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed all as of the date and year first written above.
SEMINIS VEGETABLE SEEDS, INC.
By: /s/ Gaspar Alvarez
------------------------------------------
Name: Gaspar Alvarez
Title: Vice President and Worldwide
Corporate Comptroller
SEMINIS, INC., as Guarantor
By: /s/ Gaspar Alvarez
------------------------------------------
Name: Gaspar Alvarez
Title: Vice President - Finance and
Worldwide Corporate Comptroller
PETOSEED INTERNATIONAL INC.,
as Guarantor
By: /s/ Gaspar Alvarez
------------------------------------------
Name: Gaspar Alvarez
Title: Chief Financial Officer
PGI ALFALFA, INC.,
as Guarantor
By: /s/ Gaspar Alvarez
------------------------------------------
Name: Gaspar Alvarez
Title: Chief Financial Officer
BAXTER SEED CO., INC.,
as Guarantor
By: /s/ Gaspar Alvarez
------------------------------------------
Name: Gaspar Alvarez
Title: Chief Financial Officer
Wells Fargo Bank, National Association,
as Trustee
By: /s/ Jeanie Mar
------------------------------------------
Name: Jeanie Mar
Title: Vice President
EXHIBIT A
CUSIP NO: [ ]
SEMINIS VEGETABLE SEEDS, INC.
No. [ ] $
10 1/4% SENIOR SUBORDINATED NOTE DUE 2013
SEMINIS VEGETABLE SEEDS, INC., a California corporation, as
issuer (the "Company"), for value received, promises to pay to [ ] or
registered assigns the principal sum of $ on October 1,
2013.
Interest Payment Dates: April 1 and October 1 commencing April
1, 2004
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note contained
herein, which 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 Note to be signed by
a duly authorized officer.
SEMINIS VEGETABLE SEEDS, INC.
By:
-----------------------------------
Name:
Title:
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Certificate of Authentication
This is one of the 10 1/4% Senior Subordinated Notes Due 2013
referred to in the within-mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Dated: [ ]
A-3
[FORM OF REVERSE OF NOTE]
SEMINIS VEGETABLE SEEDS, INC.
10 1/4% SENIOR SUBORDINATED NOTE DUE 2013
1. Interest. SEMINIS VEGETABLE SEEDS, INC., a California
corporation, as issuer (the "Company"), promises to pay, until the principal
hereof is paid or made available for payment, interest on the principal amount
set forth on the face hereof at a rate of 10 1/4% per annum. Interest hereon
shall accrue from and including the most recent date to which interest has been
paid or, if no interest has been paid, from and including September 29, 2003 to
but excluding the date on which interest is paid. Interest shall be payable in
arrears on each April 1 and October 1, commencing April 1, 2004. Interest shall
be computed on the basis of a 360-day year of twelve 30-day months and actual
days elapsed. The Company shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at the rate borne by the Notes.
2. Method of Payment. The Company shall pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on March 15 or September 15 immediately preceding the interest payment
date (whether or not a Business Day). Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay to the Paying Agent
principal and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. If a Holder
has given wire transfer instructions to the Company, the Company may pay, or
cause to be paid by the Paying Agent, all principal, interest and Additional
Interest, if any, on the Holder's Notes in accordance with those instructions.
All other payments on the Notes shall be made at the office or agency of the
Paying Agent and Registrar unless the Company elects to make interest payments
by check mailed to the Holders at their address set forth in the Register.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National
Association (the "Trustee") shall act as a Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to the Holders.
The Company or any of its Subsidiaries may act as Paying Agent or Registrar;
provided that if the Company or an Affiliate thereof acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund.
4. Indenture. The Company issued the Notes under an Indenture dated
as of September 29, 2003 (the "Indenture") between the Company, the Guarantors
party thereto, and the Trustee. This is one of an issue of Notes of the Company
issued, or to be issued, under the Indenture. 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 Sections 77aaa-77bbbb), as
amended from time to time. The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of them. Capitalized
and certain other terms used herein and not otherwise defined have the meanings
set forth in the Indenture.
A-4
5. Optional Redemption. (a) Except as set forth below, the Notes
shall not be redeemable at the option of the Company prior to October 1, 2008.
After October 1, 2008, the Company may redeem all or a part of the
Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Additional Interest, if any, on the notes
redeemed, to the applicable Redemption Date, if redeemed during the twelve-month
period beginning on October 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008............................... 105.125%
2009............................... 103.417%
2010............................... 101.708%
2011 and thereafter................ 100.000%
Any such redemption or notice may, at the Company's discretion, be subject to
the satisfaction of one or more conditions precedent.
(b) At any time, or from time to time, on or prior to October 1,
2008, the Notes may also be redeemed, by or on behalf of the Company, in whole,
or any portion thereof, at the Company's option, at the Make-Whole Price as of,
and accrued but unpaid interest and Additional Interest, if any, to the date of
redemption (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date). Such
redemption may be made upon notice mailed by first-class mail to each Holder's
registered address, not less than 30 nor more than 60 days prior to the
Redemption Date. Any such redemption or notice may, at the Company's discretion,
be subject to the satisfaction of one or more conditions precedent. The Company
may provide in such notice that payment of such price and performance of the
Company's obligations with respect to such redemption may be performed by
another Person.
"Make-Whole Price" means an amount equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed; and
(2) as determined by an Independent Investment Banker, the sum of
the present values of (A) the redemption price of the Notes at October 1,
2008 (as set forth above) and (B) the remaining scheduled payments of
interest from the Redemption Date to October 1, 2008 (not
including any portion of such payments of interest accrued as of the
Redemption Date) discounted back to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below) plus 50 basis points,
plus, in the case of both (1) and (2), accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date. Unless the Company defaults
in payment of the Make-Whole Price, on
A-5
and after the applicable Redemption Date, interest will cease to accrue on the
notes to be redeemed.
"Comparable Treasury Issue" means the U.S. Treasury security
selected by an Independent Investment Banker as having a maturity most nearly
equal to the period from the Redemption Date to October 1, 2008, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities; provided if such period is less than one
year, then the U.S. Treasury security having a maturity of one year shall be
used.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (1) the average of four Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations.
"Independent Investment Banker" means Citigroup Global Markets Inc.
or CIBC World Markets Corp. and their respective successors, at the Company's
option, or, if such firms or the successors, if any, to such firms, as the case
may be, are unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Company.
"Reference Treasury Dealer" means Citigroup Global Markets Inc. or
CIBC World Markets Corp., at the Company's option, and three additional primary
U.S. government securities dealers in New York City (each a "Primary Treasury
Dealer") selected by the Company, and their respective successors (provided,
however, that if any such firm or any such successor, as the case may be, shall
cease to be a primary U.S. government securities dealer in New York City, the
Company shall substitute therefor another Primary Treasury Dealer).
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication that is published weekly by
the Board of Governors of the Federal Reserve System and that establishes yields
on actively traded U.S. Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue (if no maturity is within three months before or
after the stated maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor
A-6
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date. The
Treasury Rate shall be calculated on the third business day preceding the
Redemption Date.
The notice of redemption with respect to the foregoing redemption
need not set forth the Make-Whole Price but only the manner of calculation
thereof. The Company shall notify the Trustee of the Make-Whole Price with
respect to any redemption promptly after the calculation, and the Trustee shall
not be responsible for such calculation.
(c) At any time prior to October 1, 2006, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of all
notes issued under the Indenture at a redemption price of 110.250% of the
principal amount, plus accrued and unpaid interest and Additional Interest, if
any, to the Redemption Date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(1) at least 65% of the aggregate principal amount of notes issued
under the Indenture remains outstanding immediately after the occurrence
of such redemption (excluding notes held by the Company and its
Subsidiaries); and
(2) the redemption occurs within 120 days of the date of the closing
of such Equity Offering.
Any such notice may be given prior to the completion of the related Equity
Offering, and any such redemption or notice may, at the Company's discretion, be
subject to the satisfaction of one or more conditions precedent, including but
not limited to the completion of the related Equity Offering.
(d) If less than all of the Notes are to be redeemed at any time,
the Trustee shall select Notes for redemption as follows:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee deems fair
and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part.
A new Note in principal amount equal to the unredeemed portion
thereof shall be issued in the name of the Holder thereof upon cancellation of
the original Note. Notes called for redemption pursuant to this paragraph 5
hereto become due on the related Redemption Date. On
A-7
and after the Redemption Date, interest stops accruing on Notes or portions of
them called for redemption.
6. Notice of Redemption. Notices of redemption shall be mailed in
accordance with Article Three of the Indenture. If any Note is to be redeemed in
part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed.
7. Offers To Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company may be required to make an offer to
purchase outstanding Notes in accordance with the procedures set forth in the
Indenture.
8. Registration Rights. (a) Pursuant to the Registration Rights
Agreement, the Company shall be obligated to consummate an Exchange Offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for Notes which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes.
(b) The Registration Rights Agreement provides for the payment of
Additional Interest in the event of the occurrence or continuance of a
Registration Default (as defined in the Registration Rights Agreement).
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture, provided that if the Company or an Affiliate thereof acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar
shall not be required to exchange or register a transfer of any Note for a
period of 15 days immediately preceding the redemption of Notes, except the
unredeemed portion of any Note being redeemed in part.
10. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Company at its written request. After that, Holders
entitled to the money must look to the Company for payment as general creditors
unless an "abandoned property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Company, the Guarantors,
if any, and the Trustee (if a party thereto) may, without the consent of the
Holders of any outstanding Notes, amend, waive or supplement the Indenture or
the Notes for certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining
A-8
the qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, providing for the assumption by a successor to the Company's or any
Guarantor's obligations under the Indenture and making any change that does not
adversely affect the legal rights under the Indenture of any Holder. Other
amendments and modifications of the Indenture or the Notes may be made by the
Company, the Guarantors, if any, and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of the Holders of the
particular Notes to be affected.
13. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional indebtedness, pay dividends on, redeem or repurchase
its Capital Stock, make certain investments, sell assets, create restrictions on
the payment of dividends or other amounts to the Company from its Restricted
Subsidiaries, enter into transactions with Affiliates, create liens or
consolidate, merge or sell all or substantially all of the assets of the Company
and the Subsidiary Guarantors and requires Holdings to provide reports to
Holders of the Notes. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the Indenture, the
Company must annually report to the Trustee on compliance with such limitations.
14. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article Five of the Indenture, the
predecessor corporation shall, except as provided in Article Five of the
Indenture, be released from those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, then, and in each and every such case (except
as described below), either the Trustee, by notice in writing to the Company, or
the Holders of not less than 25% of the principal amount of the Notes then
outstanding, by notice in writing to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare due and payable, if not
already due and payable, the principal of and any accrued and unpaid interest on
all of the Notes; and upon any such declaration all such amounts upon such Notes
shall become and be immediately due and payable, anything in the Indenture or in
the Notes to the contrary notwithstanding. If an Event of Default specified in
Sections 6.01(8) and 6.01(9) of the Indenture occurs with respect to the Company
or any Significant Subsidiary, then the principal of and any accrued and unpaid
interest on all of the Notes shall immediately become due and payable without
any declaration or other act on the part of the Trustee or any Holder. Holders
may not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing default (except a default in payment of principal, premium, if
any, or interest on the Notes) if it determines that withholding notice is in
their best interests.
A-9
16. Trustee Dealings with Company. Subject to certain limitations
imposed by the Trust Indenture Act, the Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, agent, member, stockholder or Affiliate of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or the Guarantors under the Notes, the Indenture, the Guarantees
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes and Guarantees by accepting a Note and a
Guarantee waives and releases all such liabilities. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees.
18. Discharge. The Company's obligations pursuant to the Indenture
shall be discharged, except for obligations pursuant to certain sections
thereof, subject to the terms of the Indenture, upon the payment of all the
Notes or upon the irrevocable deposit with the Trustee of United States dollars
or Government Securities sufficient to pay when due principal of and interest on
the Notes to maturity or redemption, as the case may be.
19. Guarantees. The Notes shall be entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
20. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Trustee, the Company and
the Guarantors agree to submit to the jurisdiction of the courts of the State of
New York in any action or proceeding arising out of or relating to the Indenture
or the Notes.
22. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Seminis Vegetable Seeds, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Attn: General Counsel
A-10
With a copy to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Attn: Howard Kelberg, Esq.
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attn: Mitchell S. Presser, Esq.
A-11
ASSIGNMENT
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent
may substitute another to act for him.
Date: Your Signature:
------------------ ---------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
---------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.08 or Section 4.12 of the Indenture, check
the appropriate box:
[ ] Section 4.08 [ ] Section 4.12
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.08 or Section 4.12 of the Indenture, state the amount you
elect to have purchased:
$
----------------------------
(multiple of $1,000)
Date:
-------------------------
Your Signature:
---------------------------------------
(Sign exactly as your name appears on
the face of this Note)
- -----------------------------------
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-13
EXHIBIT B
[FORM OF LEGEND FOR 144A GLOBAL NOTES AND OTHER SECURITIES THAT ARE
RESTRICTED SECURITIES]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (A)(1),(2),(3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER
OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY, IF THE COMPANY SO REQUESTS, THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
B-1
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
B-2
[FORM OF ASSIGNMENT FOR 144A GLOBAL NOTES AND
OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent
may substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
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 Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
------------------- --------------------------------------
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:
------------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with
Rule 144A under the Securities Act, and, accordingly, the transferor hereby
further certifies that the beneficial interest or certificated Note is being
transferred to a Person that the transferor reasonably believed and believes is
purchasing the beneficial interest or certificated Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such transfer is in compliance with any
applicable securities laws of any state of the United States. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or certificated Note shall be subject to the
restrictions on transfer enumerated on the Rule 144A Global Notes and/or the
certificated Note and in the Indenture and the Securities Act.
Dated:
------------------------ --------------------------------------------
NOTICE: To be executed by an
executive officer
B-4
EXHIBIT C
[FORM OF LEGEND FOR TEMPORARY REGULATION S GLOBAL NOTE]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (A)(1),(2),(3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER
OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY, IF THE COMPANY SO REQUESTS, THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
C-1
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
C-2
[FORM OF ASSIGNMENT FOR REGULATION S GLOBAL NOTE]
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent
may substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Regulation S
thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
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 Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
------------------- -------------------------------------
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:
------------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the transferor
hereby further certifies that (i) the transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
transferee was outside the United States or such transferor and any Person
acting on its behalf reasonably believed and believes that the transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the restricted period under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or certificated Note shall be subject to the restrictions on transfer enumerated
on the Regulation S Global Notes and/or the certificated Note and in the
Indenture and the Securities Act.
Dated:
------------------------ --------------------------------------------
NOTICE: To be executed by an
executive officer
C-4
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Note is not exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee except in the
limited circumstances described in the Indenture, and no transfer of this Note
(other than a transfer of this Note as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the depositary to the depositary or another
nominee of the depositary) may be registered except in the limited circumstances
described in the Indenture.
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (a New York corporation) ("DTC") to the issuer
or its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or 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.
D-1
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFER PURSUANT TO REGULATION S]
Wells Fargo Bank, National Association
MAC E2818-176
17th Floor
707 Wilshire Blvd.
Los Angeles, CA 90017
Attention: Corporate Trust Administration
Re: Seminis Vegetable Seeds, Inc., a California corporation,
as issuer (the "Company"), 10 1/4% Senior
Subordinated Notes Due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $190,000,000 aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or
to a person in the United States;
(2) either (a) at the time the buy offer 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, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 904(a) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
E-1
You 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 Transferee]
By:
-----------------------------------
E-2
EXHIBIT F
GUARANTEES
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of September 29, 2003 by and among Seminis Vegetable Seeds, Inc., a
California corporation, as issuer (the "Company"), the Guarantors party thereto
and Wells Fargo Bank, National Association, as Trustee (as amended, restated or
supplemented from time to time, the "Indenture"), and subject to the provisions
of the Indenture, (a) the due and punctual payment of the principal of, and
premium, if any, and interest on the Notes, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on overdue principal of, and premium and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Ten of the Indenture, and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
Ten of the Indenture, and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee. Each Holder of the Note to
which this Guarantee is endorsed, by accepting such Note, agrees to and shall be
bound by such provisions.
Each Guarantee shall be limited to an amount not to exceed the
maximum amount that can be guaranteed by such Guarantor after giving effect to
all of its other contingent and fixed liabilities without rendering such
Guarantee, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Capitalized terms used herein and not otherwise defined have the
meanings set forth in the Indenture.
[Signatures on Following Pages]
F-1
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee
to be signed by a duly authorized officer.
[ ],
as Guarantor
By:
-----------------------------------
Name:
Title:
F-2
EXHIBIT G
[FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR]
Seminis Vegetable Seeds, Inc.
2700 Camino del Sol
Oxnard, California 93030-7967
Wells Fargo Bank, National Association
MAC E2818-176
17th Floor
707 Wilshire Blvd.
Los Angeles, CA 90017
Re: Seminis Vegetable Seeds, Inc., a California corporation, as issuer
(the "Company"), 10 1/4% Senior Subordinated Notes due 2013
Reference is hereby made to the Indenture, dated as of September 29,
2003 (the "Indenture"), by and among the Company, the Guarantors party thereto,
and Wells Fargo Bank, National Association, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $190,000,000 aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
prior to the expiration of the holding period applicable to sales of the Senior
Notes under Rule 144(k) of the Securities Act, we shall do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institu-
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tional buyer" (as defined therein), (C) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is
in respect of a principal amount of Notes, at the time of transfer of less than
$250,000, an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we shall be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us shall bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Notes or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
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You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
----------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: _____________, _____
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EXHIBIT H
[FORM OF LEGEND FOR
TEMPORARY REGULATION S GLOBAL NOTE]
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD
BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO
PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), PURSUANT TO RULE 144A
THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES
OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.
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