EXHIBIT 4.10
EXECUTION COPY
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Land O'Lakes, Inc.
9% Senior Secured Notes due 2010
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INDENTURE
Dated as of December 23, 2003
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U.S. Bank National Association,
as Trustee
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.............................................................................. 1
SECTION 1.02. Other Definitions........................................................................ 26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................ 27
SECTION 1.04. Rules of Construction.................................................................... 27
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series................................................. 28
SECTION 2.02. Form and Dating.......................................................................... 29
SECTION 2.03. Execution and Authentication............................................................. 29
SECTION 2.04. Registrar and Paying Agent............................................................... 30
SECTION 2.05. Paying Agent to Hold Money in Trust...................................................... 31
SECTION 2.06. Holder Lists............................................................................. 31
SECTION 2.07. Transfer and Exchange.................................................................... 31
SECTION 2.08. Replacement Securities................................................................... 32
SECTION 2.09. Outstanding Securities................................................................... 32
SECTION 2.10. Temporary Securities..................................................................... 33
SECTION 2.11. Cancelation.............................................................................. 33
SECTION 2.12. Defaulted Interest....................................................................... 33
SECTION 2.13. CUSIP and ISIN Numbers................................................................... 33
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee....................................................................... 34
SECTION 3.02. Selection of Securities To Be Redeemed................................................... 34
SECTION 3.03. Notice of Redemption..................................................................... 34
SECTION 3.04. Effect of Notice of Redemption........................................................... 35
SECTION 3.05. Deposit of Redemption Price.............................................................. 35
SECTION 3.06. Securities Redeemed in Part.............................................................. 35
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities.................................................................... 36
SECTION 4.02. SEC Reports.............................................................................. 36
SECTION 4.03. Limitation on Indebtedness............................................................... 36
SECTION 4.04. Limitation on Restricted Payments........................................................ 39
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries................................................................... 42
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock....................................... 43
SECTION 4.07. Limitation on Transactions with Affiliates............................................... 46
SECTION 4.08. Change of Control........................................................................ 47
SECTION 4.09. Compliance Certificate................................................................... 49
SECTION 4.10. Further Instruments and Acts............................................................. 49
SECTION 4.11. Cooperative Status....................................................................... 49
SECTION 4.12. Future Subsidiary Guarantors............................................................. 49
SECTION 4.13. Limitation on Lines of Business.......................................................... 49
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries........... 50
SECTION 4.15. Limitation on Liens...................................................................... 50
SECTION 4.16. Limitation on Sale/Leaseback Transactions................................................ 50
SECTION 4.17. Fall-Away of Covenants................................................................... 51
SECTION 4.18. Perfected Security Interests............................................................. 51
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets................................................ 52
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default........................................................................ 53
SECTION 6.02. Acceleration............................................................................. 56
SECTION 6.03. Other Remedies........................................................................... 56
SECTION 6.04. Waiver of Past Defaults.................................................................. 56
SECTION 6.05. Control by Majority...................................................................... 57
SECTION 6.06. Limitation on Suits...................................................................... 57
SECTION 6.07. Rights of Holders to Receive Payment..................................................... 57
SECTION 6.08. Collection Suit by Trustee............................................................... 57
SECTION 6.09. Trustee May File Proofs of Claim......................................................... 58
SECTION 6.10. Priorities............................................................................... 58
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SECTION 6.11. Undertaking for Costs.................................................................... 58
SECTION 6.12. Waiver of Stay or Extension Laws......................................................... 58
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee........................................................................ 59
SECTION 7.02. Rights of Trustee........................................................................ 60
SECTION 7.03. Individual Rights of Trustee............................................................. 61
SECTION 7.04. Trustee's Disclaimer..................................................................... 61
SECTION 7.05. Notice of Defaults....................................................................... 61
SECTION 7.06. Reports by Trustee to Holders............................................................ 61
SECTION 7.07. Compensation and Indemnity............................................................... 62
SECTION 7.08. Replacement of Trustee................................................................... 62
SECTION 7.09. Successor Trustee by Merger.............................................................. 63
SECTION 7.10. Eligibility; Disqualification............................................................ 64
SECTION 7.11. Preferential Collection of Claims Against Company........................................ 64
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance......................................... 64
SECTION 8.02. Conditions to Defeasance................................................................. 65
SECTION 8.03. Application of Trust Money............................................................... 66
SECTION 8.04. Repayment to Company..................................................................... 66
SECTION 8.05. Indemnity for Government Obligations..................................................... 67
SECTION 8.06. Reinstatement............................................................................ 67
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders............................................................... 67
SECTION 9.02. With Consent of Holders.................................................................. 68
SECTION 9.03. Compliance with Trust Indenture Act...................................................... 69
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................ 69
SECTION 9.05. Notation on or Exchange of Securities.................................................... 70
SECTION 9.06. Trustee to Sign Amendments............................................................... 70
SECTION 9.07. Payment for Consent...................................................................... 70
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ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees................................................................... 71
SECTION 10.02. Limitation on Liability................................................................. 73
SECTION 10.03. Successors and Assigns.................................................................. 74
SECTION 10.04. No Waiver............................................................................... 74
SECTION 10.05. Modification............................................................................ 74
SECTION 10.06. Execution of Supplemental Indenture for Future Subsidiary
Guarantors.................................................................... 74
SECTION 10.07. Non-Impairment.......................................................................... 75
ARTICLE XI
Security Documents
SECTION 11.01. Collateral and Security Documents....................................................... 75
SECTION 11.02. Recording and Opinions.................................................................. 75
SECTION 11.03. Release of Collateral................................................................... 76
SECTION 11.04. Permitted Releases Not to Impair Lien; Trust Indenture Act Requirements................. 77
SECTION 11.05. Certificates of the Trustee............................................................. 78
SECTION 11.06. Suits To Protect the Collateral......................................................... 78
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the
Security Documents............................................................. 78
SECTION 11.08. Collateral Agent........................................................................ 79
SECTION 11.09. Designations............................................................................ 81
SECTION 11.10. Further Assurances...................................................................... 81
SECTION 11.11. Termination of Security Interest........................................................ 82
SECTION 11.12. Excluded Securities..................................................................... 83
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls............................................................ 83
SECTION 12.02. Notices................................................................................. 83
SECTION 12.03. Communication by Holders with Other Holders............................................. 84
SECTION 12.04. Certificate and Opinion as to Conditions Precedent...................................... 84
SECTION 12.05. Statements Required in Certificate or Opinion........................................... 84
SECTION 12.06. When Securities Disregarded............................................................. 84
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar............................................ 85
SECTION 12.08. Legal Holidays.......................................................................... 85
SECTION 12.09. GOVERNING LAW........................................................................... 85
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SECTION 12.10. No Recourse Against Others.............................................................. 85
SECTION 12.11. Successors.............................................................................. 85
SECTION 12.12. Multiple Originals...................................................................... 85
SECTION 12.13. Table of Contents; Headings............................................................. 85
Appendix A - Provisions Relating to Original Securities, Additional
Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
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INDENTURE dated as of December 23, 2003,
among Land O'Lakes, Inc., a Minnesota cooperative
corporation (the "Company"), ACS Stores, LLC,
Advanced Business Concepts International, LLC, AG2AG,
LLC, Agricultural Indemnity Insurance Company,
Alliance Milk Products, LLC, America's Country Stores
Holdings, LLC, America's Country Stores, LLC, Diamond
Cross, LLC, FMR, Inc., Forage Genetics, Inc., Golden
State Feeds, LLC, Golden Valley Dairy Products, L.L.
Olds Seed Company, Land O'Lakes Farmland Feed LLC,
Land O'Lakes Holdings, Inc., Land O'Lakes
International Development Corporation, LOL Holdings
II, Inc., LOL Power, LLC, Milk Products, LLC, North
Coast Fertilizer II, Inc., Northwest Food Products
Company, Inc., Northwest Food Products
Transportation, LLC, Nutra-Blend, LLC, PMI Nutrition,
LLC, PMI Agriculture, L.L.C., PMI Nutrition
International, LLC, Purina Mills, LLC, QC, Inc., QC
Holdings Inc., QC Industries, Inc., Realty LOL, Inc.,
Research Seeds, Inc., Seed Research, Inc., Thomas
Products, LLC (collectively, the "Subsidiary
Guarantors") and U.S. Bank National Association, a
national banking association, 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 (a) the
Company's 9% Senior Secured Notes due 2010 issued on the date hereof (the
"Original Securities"), (b) any Additional Securities (as defined herein) that
may be issued on any Issue Date (all such Securities in clauses (a) and (b)
being referred to collectively as the "Initial Securities"), and (c) if and when
issued as provided in a Registration Agreement (as defined in Appendix A hereto
(the "Appendix")), the Company's 9% Senior Secured Notes due 2010 issued in a
Registered Exchange Offer in exchange for any Initial Securities (the "Exchange
Securities") (together with the Initial Securities, the "Securities").
$175,000,000 in aggregate principal amount of the Securities will be initially
issued on the date hereof. Subject to the conditions and in compliance with the
covenants set forth herein, the Company may issue an unlimited aggregate
principal amount of Additional Securities.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accounts" means all Accounts (as defined in the Uniform
Commercial Code) and Account Assets with respect to such Accounts, including
those related to the dairy businesses of the Company and the Restricted
Subsidiaries and payable to such parties, including, but not limited to,
accounts receivable generated from the marketing and sale of milk, butter,
cheese, cream products, dairy and non-dairy spreads, whey, non-fat dry milk,
cocoa, and other dairy or dairy related products sold for consumer use,
licensing fees relating to dairy products and dairy related services, and the
proceeds
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thereof, but specifically excluding the CoBank Accounts and the Account Assets
with respect to such CoBank Accounts.
"Account Assets" means, collectively, with respect to Accounts
or CoBank Accounts, as the case may be, all such Accounts or CoBank Accounts,
together with (a) all right, title and interest in and to all contracts that
relate to any of such accounts; (b) all security interests or liens and property
subject thereto from time to time purporting to secure payment of any of such
accounts, whether pursuant to the contracts related to such accounts or
otherwise; (c) all UCC financing statements covering any collateral securing
payment of any of such accounts; (d) all guarantees and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of any of such accounts whether pursuant to the contracts related to any
of such accounts or otherwise; (e) all interest in the merchandise, goods,
products or other property (including any that is returned), if any, the sale of
which gave rise to any of such accounts; and (f) all proceeds of the foregoing.
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) any Investments in Permitted Businesses
permitted by Section 4.04; (c) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary; or (d) Capital Stock constituting
a minority interest in any Person that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (c)
or (d) above is primarily engaged in a Permitted Business.
"Additional Securities" means any 9% Senior Secured Notes due
2010 issued under the terms of this Indenture subsequent to the Closing Date.
"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 the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Agriliance" means Agriliance LLC.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of
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(a) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be held by
a Person other than the Company or a Restricted Subsidiary), (b) all or
substantially all the assets of any division or line of business of the Company
or any Restricted Subsidiary or (c) any other assets of the Company or any
Restricted Subsidiary outside of the ordinary course of business of the Company
or such Restricted Subsidiary (other than, in the case of (a), (b) and (c)
above, (i) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly Owned Subsidiary, (ii) for
purposes of Section 4.06 only, a disposition that constitutes a Restricted
Payment permitted by Section 4.04, (iii) a disposition of assets with a Fair
Market Value of less than $500,000, (iv) the disposition of all or substantially
all of the assets of the Company in a manner permitted by Section 5.01, and (v)
the sale to one or more Securitization Vehicles of accounts receivable
(including Account Assets) or inventory in Securitizations, provided that (1)
each such Securitization is effected on market terms, (2) the aggregate amount
of Third Party Securities in respect of all such Securitizations does not exceed
$200 million at any time outstanding and (3) an amount equal to the Net
Available Cash from each such Securitization is applied to the mandatory
repayment of Bank Indebtedness (notwithstanding, in the case of the Amended and
Restated Five-Year Credit Agreement referred to in the definition of Credit
Agreement, that the commitment is not required to be reduced)). For the purposes
of the foregoing clause (v), the Company and its Restricted Subsidiaries shall
be deemed at the time of any issuance by the relevant Securitization Vehicle of
Third Party Securities to have received Net Available Cash in an amount equal to
the Net Available Cash to the Securitization Vehicle from such issuance of Third
Party Securities and will not be deemed to have received Net Available Cash in
connection with ongoing sales of accounts receivable (including Account Assets)
or inventory to such Securitization Vehicle that are purchased by it with the
proceeds from collections of receivables or from ordinary course sales of
inventory, in each case previously purchased by it pursuant to such
Securitization.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such
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proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof. It is understood and
agreed that Refinancing Indebtedness in respect of the Credit Agreement may be
Incurred from time to time after termination of the Credit Agreement and that
such Refinancing Indebtedness will be deemed to constitute Bank Indebtedness.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of the Board
of Directors of the Company.
"Business Day" means each day which is not a Legal Holiday.
"Capital Securities" means the trust preferred securities in
aggregate face amount of up to $200 million issued pursuant to the Indenture
dated as of March 25, 1998, between the Company and Wilmington Trust Company.
"Capital Stock" of any Person means any and all shares,
membership interests, limited liability company interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any Preferred Stock and
any cooperative membership interests or accounts, but excluding any debt
securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (a) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Company (for the purposes
of this clause (a), any person shall be deemed to beneficially own any
Voting Stock of an entity (the "specified entity") held by any other
entity (the "parent entity") if such other person is the beneficial
owner (as defined in this clause (a)), directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such parent entity;
(b) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of directors
of the Company (together with any new directors whose election by such
board of directors of the
5
Company or whose nomination for election was approved by a vote of
66-2/3% of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the
Company then in office;
(c) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(d) the Company fails to maintain cooperative status under
Subchapter T of the Code or Minnesota law; or
(e) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another Person, and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of the Company are changed
into or exchanged for cash, securities or property, unless pursuant to
such transaction such securities are changed into or exchanged for, in
addition to any other consideration, securities of the surviving Person
or transferee that represent immediately after such transaction, at
least a majority of the aggregate voting power of the Voting Stock of
the surviving Person or transferee.
"Closing Date" means the date of this Indenture.
"CoBank" means CoBank, ACB, a federally chartered
instrumentality of the United States.
"CoBank Accounts" means (a) accounts related to the feed
businesses of Land O'Lakes Farmland Feed LLC and Purina Mills, LLC, its
subsidiaries and their respective successors, including, but not limited to,
accounts receivable generated from the sale of animal feed and feed ingredients,
soybean meal, premixes, non-grain protein ingredients, grains, vitamins,
minerals, branded feed products, complete feed products, milk replacer products,
feed additives, animal health products, farm supply products, toll milling
services and other feed related services and the proceeds thereof, (b) accounts
related to the seed business of the Company including, but not limited to,
accounts receivable generated from the sale of seed, licensing fees and seed
related services and the proceeds thereof, (c) accounts related to the swine
businesses of the Company, Land O'Lakes Farmland Feed LLC and Purina Mills, LLC,
its subsidiaries and their respective successors, including, but not limited to,
accounts receivable generated from the sale of swine and swine related services
and the proceeds thereof, and (d) all Account Assets related to the foregoing;
provided, however, that "CoBank Accounts" related to the swine businesses of the
Company and Land O'Lakes Farmland Feed LLC shall not include any such right to
payment where payments have been sent to a lockbox or lockbox account other than
those specified in the guarantee and collateral agreement related to the CoBank
Receivables Loan Agreement.
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"CoBank Receivables Loan Agreement" means the Credit Agreement
dated as of October 11, 2001, between the Company and CoBank.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all the collateral provided for and
described in the Security Documents.
"Collateral Agent" means U.S. Bank National Association, in
its capacity as collateral agent under the Security Documents, and any successor
thereto in such capacity.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination to (b) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (i) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence
of Indebtedness, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period, (ii) if the Company or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall
be calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted Subsidiary has
not earned the interest income actually earned during such period in respect of
cash or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness, (iii) if since the beginning of such
period the Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that are the
subject of such Asset Disposition for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary
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repaid, repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale), (iv) if since the beginning of such period the
Company or any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person that becomes a Restricted
Subsidiary) or an acquisition of assets, including any acquisition of assets
occurring in connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an operating unit of a
business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the Incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period and (v) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Asset Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (iii) or (iv) above if made
by the Company or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
pro forma effect thereto as if such Asset Disposition, Investment or acquisition
of assets occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of assets
or other Investment, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company
and shall comply with the requirements of Rule 11-02 of Regulation S-X
promulgated by the SEC. If any Indebtedness bears a floating rate of interest
and is being given pro forma effect, the interest expense on such Indebtedness
shall be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term as at the date of determination in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Consolidated Restricted
Subsidiaries, plus, to the extent Incurred by the Company and its Consolidated
Restricted Subsidiaries in such period but not included in such interest
expense, without duplication (a) interest expense attributable to Capitalized
Lease Obligations and the interest expense attributable to leases constituting
part of a Sale/Leaseback Transaction, (b) amortization of debt discount and debt
issuance costs, (c) capitalized interest, (d) noncash interest expense, (e)
commissions, discounts and other fees and charges attributable to letters of
credit and bankers' acceptance financing, (f) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is Guaranteed
by the Company or any Restricted Subsidiary, (g) net costs associated with
Hedging Obligations of interest rate and foreign currency exposure (including
amortization of fees), (h) dividends in respect of all Disqualified Stock of the
Company and all Preferred Stock of any of the Subsidiaries of
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the Company, to the extent held by Persons other than the Company or a Wholly
Owned Subsidiary, (i) interest Incurred in connection with investments in
discontinued operations, (j) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or trust and (k)
the amount of dividends paid in respect of the Capital Securities.
Notwithstanding anything to the contrary contained herein, commissions,
discounts, yield and other fees and charges Incurred in connection with any
transaction (including, without limitation, any Securitization) pursuant to
which the Company or any Subsidiary of the Company may sell, convey or otherwise
transfer or grant a security interest in any accounts receivable or related
assets or inventory or related assets of the type specified in the definition of
"Securitization" shall be included in Consolidated Interest Expense.
"Consolidated Net Income" means, for any period, the net
income of the Company and its Consolidated Subsidiaries for such period (plus,
to the extent deducted in determining such net income, any minority interest in
the earnings of any Subsidiary Guarantor, and minus, to the extent added in
determining such net income, any minority interest in the losses of any
Subsidiary Guarantor); provided, however, that there shall not be included in
such Consolidated Net Income:
(a) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary (except to the extent of the
amount of dividends or other distributions actually paid by such Person
to the Company or any Restricted Subsidiary during such period);
(b) any net income (or loss) of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary
(other than a Restricted Subsidiary which is a Subsidiary Guarantor on
the Closing Date) if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (i) subject to the limitations
contained in clause (d) below, the Company's equity in 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
actually distributed by such Restricted Subsidiary during such period
to the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
made to another Restricted Subsidiary, to the limitation contained in
this clause) and (ii) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(d) any gain (but not loss) realized upon the sale or other
disposition of any asset of the Company or its Consolidated
Subsidiaries (including pursuant to
9
any Sale/Leaseback Transaction) that is not sold or otherwise disposed
of in the ordinary course of business and any gain (but not loss)
realized upon the sale or other disposition of any Capital Stock of any
Person;
(e) any extraordinary gain or loss;
(f) the cumulative effect of a change in accounting
principles; and
(g) for the year ended December 31, 2001, charges and expenses
resulting from the acquisition of Purina Mills, Inc. consisting of (i)
up to $18.5 million of extraordinary expenses related to early
extinguishment of debt, (ii) up to $21.0 million of non-cash accruals
for plant writedowns and (iii) up to $5.1 million of expenses related
to the cancellation of an interest rate swap of Purina Mills, Inc.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers or distributions of cash or other assets
from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the
extent such dividends, repayments or transfers increase the amount of Restricted
Payments permitted under such Section pursuant to clause (a) (iv)(3)(D) or (E)
thereof.
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its Restricted Subsidiaries, determined
on a Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (a) the par or stated value
of all outstanding Capital Stock of the Company plus (b) member equity relating
to such Capital Stock plus (c) any retained earnings or earned surplus less (i)
any accumulated deficit and (ii) any amounts attributable to Disqualified Stock.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance with
GAAP consistently applied; provided, however, that "Consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Company or any Restricted Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Credit Agreement" means, collectively, (a) the Credit
Agreement dated as of October 11, 2001, among the Company, JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as administrative agent, and the
lenders party thereto, (b) the Amended and Restated Five-Year Credit Agreement
dated as of October 11, 2001, among the Company, the lenders party thereto,
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
administrative agent, and CoBank, as co-administrative agent, and (c) the CoBank
Receivables Loan Agreement, each as amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders
or otherwise), refinanced, restructured or otherwise
10
modified from time to time (except to the extent that any such amendment,
restatement, supplement, waiver, replacement, refinancing, restructuring or
other modification thereto would be prohibited by the terms of this Indenture,
unless otherwise agreed to by the Holders of at least a majority in aggregate
principal amount of Securities at the time outstanding).
"Credit Facilities Collateral Agent" means JPMorgan Chase
Bank, in its capacity as collateral agent for the lenders party to each of the
Credit Agreements described in clause (i) and (ii) of the definition thereof, or
any successor thereto, or any Person otherwise designated the "Credit Facilities
Collateral Agent" pursuant to the Intercreditor Agreement.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Noncash Consideration" means the Fair Market Value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation.
"Discharge of Priority Lien Obligations" means payment in full
in cash of the principal of and interest and premium, if any, on all
Indebtedness constituting Priority Lien Obligations secured by any Collateral,
or, with respect to Hedging Obligations constituting Priority Lien Obligations
secured by any Collateral, delivery of cash collateral or backstop letters of
credit in respect thereof in compliance with the terms of such Priority Lien
Obligation, in each case after or concurrently with termination of all
commitments to extend credit thereunder, and payment in full of any other
obligations in respect of any Priority Lien Obligation secured by any Collateral
that are due and payable or otherwise accrued and owing at or prior to the time
such principal, interest and premium, if any, are paid.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified Stock, as applicable) or (c) is
redeemable at the option of the holder thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or prior to 91 days following the Stated
Maturity of the Securities; provided, however, that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to 91 days following the Stated Maturity of the Securities shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions
11
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the provisions of Sections 4.06 and 4.08.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) depreciation expense of the Company and its Consolidated Restricted
Subsidiaries, (d) amortization expense of the Company and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period), (e) all other noncash
charges of the Company and its Consolidated Restricted Subsidiaries (excluding
any such noncash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period) less all non-cash items of
income of the Company and its Consolidated Restricted Subsidiaries, and (f) up
to $20.0 million of cash severance costs Incurred in 2001 and 2002 in connection
with plant closings resulting from the acquisition of Purina Mills, Inc., in
each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and noncash charges of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and, except for Restricted Subsidiaries
which are Subsidiary Guarantors on the Closing Date, only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"8-3/4% Senior Notes" means the Company's 8-3/4% Senior Notes
due 2011 issued under the 8-3/4% Senior Notes Indenture and any of the Company's
8-3/4% Series A Senior Notes due 2011 exchanged therefor.
"8-3/4% Senior Notes Closing Date" means November 14, 2001.
"8-3/4% Senior Notes Guarantees" means the Guarantees of the
8-3/4% Senior Notes pursuant to the 8-3/4% Senior Notes Indenture.
"8-3/4% Senior Notes Indenture" means the Indenture dated as
of the 8-3/4% Senior Notes Closing Date, between the Company, the guarantors
party thereto, and U.S. Bank National Association, as trustee, under which the
8-3/4% Senior Notes were issued.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Securities" means that portion of the Capital Stock
or other securities of any Subsidiary pledged as Collateral (but for the
provisions of Section 11.12
12
hereof) the value (defined as the principal amount, par value, book value as
carried by the Company or market value, whichever is greatest) of which, when
considered in the aggregate with all other Capital Stock or other securities of
such Subsidiary subject to a security interest under any of the Security
Documents, exceeds 19.99% of the principal amount of the then outstanding
Securities issued by the Company; provided, however, in the event that Rule 3-16
of Regulation S-X promulgated by the SEC is amended, modified or interpreted by
the SEC to require (or is replaced with another rule or regulation, or any other
law, rule or regulation is adopted, which would require) the filing with the SEC
(or any other governmental agency) of separate financial statements of any
Subsidiary of the Company due to the fact that such Subsidiary's Capital Stock
or other securities secure the Securities or the Subsidiary Guarantees, then the
Capital Stock or other securities of such Subsidiary shall automatically be
deemed to be Excluded Securities but only for so long as and to the extent
necessary to not be subject to such requirement; provided, further, however,
that if any Priority Lien Obligation or Other Pari Passu Lien Obligation is
secured by a security interest in any securities that are Excluded Securities,
such obligation is registered under the Securities Act, and, in connection with
such registration, the Company is required to file with the SEC (or any other
governmental agency) separate financial statements of the Subsidiary of the
Company that is the issuer of such securities, then such securities shall not be
considered Excluded Securities.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. For all purposes of this Indenture, Fair Market Value of property
or assets with a value of $10 million or greater will be determined in good
faith by the Board of Directors, whose determination will be conclusive and
evidenced by a resolution of the Board of Directors.
"Foreign Pledge Agreement" means a pledge agreement securing
the Securities or the Subsidiary Guarantees or any of them that is governed by
the law of a jurisdiction other than the United States of America and reasonably
satisfactory in form and substance to the Trustee.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that is not organized under the laws of the United States of America or
any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the 8-3/4% Senior Notes Closing
Date, including those set forth in (a) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) statements and pronouncements of the Financial Accounting
Standards Board and (c) such other statements by such other entities as approved
by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
13
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (b) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
(d) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto
or the completion of such services;
14
(e) all Capitalized Lease Obligations and all Attributable
Debt of such Person;
(f) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of (i) the Fair Market Value of such asset
at such date of determination and (ii) the amount of such Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person;
(i) all obligations in respect of Third Party Securities
issued by such Person in Securitizations (regardless of whether
denominated as equity or debt securities); and
(j) all obligations of the type referred to in clauses (a)
through (i) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Intercreditor Agreement" means (a) that certain Lien
Subordination and Intercreditor Agreement, dated as of the date of this
Indenture, by and among the Company, the Credit Facilities Collateral Agent, the
Collateral Agent and the grantors and guarantors named therein, as amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time and (b) after the termination of the Intercreditor
Agreement referred to in clause (a) above, any other intercreditor agreement,
with terms no less favorable to the Holders than the Intercreditor Agreement
referred to in clause (a) above, entered into by and among the Company, one or
more representatives for any Priority Lien Obligations, one or more
representatives for any Other Pari Passu Lien Obligations, the Collateral Agent
and the grantors or guarantors named therein, as amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement,
15
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement to which such Person is party or of which it is a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (i) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and (b) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value
at the time of such transfer.
"Investment Grade" means (a) with respect to S&P, any of the
rating categories from and including AAA to and including BBB-; and (b) with
respect to Moody's, any of the rating categories from and including Aaa to and
including Baa3.
"Issue Date", with respect to any Initial Securities, means
the date on which such Initial Securities are originally issued.
"Legal Holiday" means a Saturday, Sunday or other day on which
banking institutions are not required by law or regulation to be open in the
State of New York.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"LOL Finance" means LOL Finance Co., a wholly-owned Subsidiary
of the Company.
"Material Foreign Subsidiary" means, at any time, each Foreign
Subsidiary that is a Wholly Owned Subsidiary and that had assets with an
aggregate book value in excess of $15.0 million as of the end of the most recent
fiscal quarter for which financial statements have been filed with the SEC.
"Material Intellectual Property" means all intellectual
property of the Company and the Subsidiary Guarantors, other than intellectual
property that in the
16
aggregate is not material to the business of the Company and its Subsidiaries,
taken as a whole.
"Member" means a holder of the Company's Class A, Class B,
Class C or Class D common stock.
"Minimum Patronage Amount" means, the minimum amount required
to be paid in money or by qualified check under Section 1388 of the Code for the
allocation to be a "qualified written notice of allocation", which currently
means, with respect to a Member, 20% of the Patronage allocated to such Member
in a given year.
"MoArk" means MoArk, LLC.
"Moody's" means Moody's Investors Service, Inc.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other non-cash form)
therefrom, in each case net of (a) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (b) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition, (c)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (d) appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, the Secretary or the Assistant Secretary of the Company. "Officer" of
a Subsidiary Guarantor has a correlative meaning.
17
"Officers' Certificate" means a certificate signed by two
Officers.
"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 the Company, a Subsidiary Guarantor or the Trustee.
"Other Intercreditor Agreements" means any intercreditor
agreements entered into pursuant to, and in accordance with the terms of,
Section 11.08(e) hereof.
"Other Pari Passu Lien Obligations" means any Indebtedness,
and any related premium, interest, fees and expenses, of the Company and the
Restricted Subsidiaries (including any Additional Securities) that is permitted
by this Indenture to be secured by Pari Passu Liens (other than the Original
Securities, the Exchange Securities issued in exchange therefor and the
Subsidiary Guarantees) and which is so designated by the Company pursuant to
Section 11.08(d) hereof.
"Other Pari Passu Lien Obligations Documents" means as to any
Other Pari Passu Lien Obligations, any instrument or document under which such
Other Pari Passu Lien Obligations shall have been issued or incurred.
"Pari Passu Lien" means any Lien on Collateral securing the
Securities, a Subsidiary Guarantee or any Other Pari Passu Lien Obligation that
ranks immediately junior in priority (subject to Permitted Collateral Liens) to
the Liens on such Collateral securing any Priority Lien Obligations.
"Patronage" means any earnings of the Company and Company's
Subsidiaries returned to Members, either directly or indirectly, based on
business conducted with such Members, including any "Patronage Dividends",
"Per-Unit Retain Allocations", "Qualified Per-Unit Retain Certificates", or
"Non-Qualified Per-Unit Retain Certificates", as such are defined in Sub-chapter
T of the Code, as well as any other redemptions or revolvement payments to
Members.
"Permitted Business" means any business engaged in by the
Company or any Restricted Subsidiary on the Closing Date and any Related
Business.
"Permitted Collateral Liens" means (a) Liens on the Collateral
securing Priority Lien Obligations in a principal amount which, when taken
together with the principal amount of all other Priority Lien Obligations then
outstanding (other than Hedging Obligations secured by Priority Liens), does not
exceed $695 million; provided, however, that at the election of the Company, any
portion or all of the amount of Indebtedness permitted to be secured by Priority
Liens pursuant to this clause (a) may instead be allocated to be secured by Pari
Passu Liens; (b) (i) Liens on the Collateral outstanding on the Closing Date
securing the Securities, the Exchange Securities issued in exchange therefor and
the Subsidiary Guarantees relating thereto; and (ii) Liens on the Collateral
securing Other Pari Passu Lien Obligations (including, without limitation,
Additional Securities) in a principal amount which, when taken together with the
principal amount of all other Pari Passu Lien Obligations then outstanding
(other than Hedging Obligations secured by Pari Passu Liens), does not exceed
the sum of any
18
amount of Indebtedness secured by Pari Passu Liens pursuant to clause (a) above
plus $25 million; (c) Liens on the Collateral existing on the Closing Date
(other than Liens specified in clauses (a) and (b) above); (d) Liens on the
Collateral described in clauses (a) through (e), (i), (j), (k), (l), (o) and (q)
(only in respect of clauses (i) and (j)) of the definition of "Permitted Liens;"
(e) Liens on the Collateral in favor of any collateral agent relating to such
collateral agent's administrative expenses with respect to the Collateral; (f)
Liens on the Collateral securing Indebtedness Incurred pursuant to Section
4.03(b)(vii); and (g) Liens on the Collateral securing Hedging Obligations
constituting Priority Lien Obligations or Other Pari Passu Lien Obligations. For
the avoidance of doubt, any Lien on the Collateral securing Bank Indebtedness
outstanding on the Closing Date shall be deemed to be Incurred and outstanding
pursuant to clause (a) of this definition.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (a) the Company, a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Permitted Business; (b) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Permitted Business; (c) Temporary Cash Investments; (d) receivables owing to
the Company or any Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (e) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (f) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary and not exceeding $5 million in the aggregate outstanding
at any one time; provided that the repayments of such loans or advances shall
not increase the amount of Restricted Payments permitted to be made under
Section 4.04(a)(iv)(3)(D) or (E); (g) any Person to the extent such Investment
represents the non-cash portion of the consideration received for an Asset
Disposition that was made pursuant to and in compliance with Section 4.06; (h)
Sellers' Retained Interests in Securitizations permitted by Section 4.03 and
Section 4.06; (i) Capital Stock of CoBank required to be made in accordance with
CoBank's bylaws and capital plans applicable to cooperative borrowers generally;
(j) any Persons received in connection with the bankruptcy or reorganization of,
or settlement of delinquent accounts and disputes with, customers and suppliers,
in each case in the ordinary course of business or received in satisfaction of
judgments; (k) loans to Agriliance and MoArk in the ordinary course of business
for cash management purposes in an aggregate principal amount not to exceed $20
million outstanding at any time, which loans shall not be outstanding for more
than 30 days; provided that the repayments of such loans shall not increase the
amount of Restricted Payments permitted to be made under Section
4.04(a)(iv)(3)(D) or (E); (l) loans to LOL Finance in an aggregate principal
amount not to exceed $45 million outstanding at any time, it being understood
that approximately $9.5 million is outstanding on the Closing
19
Date; provided that the repayments of such loans shall not increase the amount
of Restricted Payments permitted to be made under Section 4.04(a)(iv)(3)(D) or
(E); and (m) any Person in an aggregate amount not to exceed $20 million at any
time outstanding.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, such as carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like liens imposed by law and arising in
the ordinary course of business, in each case for sums not overdue by more than
30 days or being contested in good faith by appropriate proceedings or other
Liens arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other proceedings
for review; (c) Liens for taxes, assessments or other governmental charges not
yet due or payable or subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings; (d) deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business; (e) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially adversely affect the value of the property,
taken as a whole, or interfere with the ordinary conduct of business of the
Company or any Restricted Subsidiary; (f) Liens securing Indebtedness Incurred
to finance the construction, purchase or lease of, or repairs, improvements or
additions to, property of such Person; provided, however, that the Lien may not
extend to any other property owned by such Person or any of its Subsidiaries at
the time the Lien is Incurred, and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days after the
later of the acquisition, completion of construction, repair, improvement,
addition or commencement of full operation of the property subject to the Lien;
(g) Liens to secure Bank Indebtedness (i) prior to the Fall-Away Date, permitted
by Section 4.03(b)(i) and (ii) following the Fall-Away Date, in an aggregate
principal amount not to exceed the amount of Bank Indebtedness permitted by
Section 4.03(b)(i) on the Fall-Away Date; (h) Liens existing on the Closing
Date; (i) Liens on property or shares of stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided, however, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries; (j) Liens on property at the time such
Person or any of its Subsidiaries acquires the property, including any
acquisition by means of a merger or consolidation with or into such Person or
any Subsidiary of such Person; provided, however, that such Liens are not
created, Incurred or assumed in connection with, or in contemplation of, such
acquisition; provided further,
20
however, that the Liens may not extend to any other property owned by such
Person or any of its Subsidiaries; (k) Liens securing Indebtedness or other
obligations of (i) a Subsidiary of such Person owing to such Person or a wholly
owned Subsidiary of such Person or (ii) of such Person owing to a wholly owned
Subsidiary of such Person; (l) Liens securing obligations under Interest Rate
Agreements so long as such obligations relate to Indebtedness that is, and is
permitted under this Indenture to be, secured by a Lien on the same property
securing such obligations; (m) Liens on Sellers' Retained Interests Incurred in
connection with Securitizations permitted under this Indenture (other than
Section 4.15 hereof) securing obligations in respect of Third Party Securities
in an aggregate amount at any time outstanding not in excess of $200 million
less the aggregate principal amount of Indebtedness under the CoBank Receivables
Loan Agreement; provided, however, that recourse to such Sellers' Retained
Interests is limited in a manner customary for similar securitization
transactions and the ratio of the amount of such Sellers' Retained Interests to
the amount of such Third Party Securities is not significantly greater than the
ratio of Sellers' Retained Interests to the financed portion of assets in
similar securitization transactions; (n) Liens on assets of Restricted
Subsidiaries that are Securitization Vehicles securing Indebtedness of such
Securitization Vehicles provided that prior to the Fall-Away Date such
Indebtedness is permitted by Section 4.03(b)(viii); (o) judgment liens in
respect of judgments that do not constitute an Event of Default; (p) Liens of
CoBank on investments by the Company in the stock, participation certificates,
or allocated reserves of CoBank owned by the Company; (q) Liens to secure any
Refinancing (or successive Refinancings) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (f), (h),
(i) and (j); provided, however, that (i) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
to or on such property) and (ii) the Indebtedness secured by such Lien at such
time is not increased to any amount greater than the sum of (1) the outstanding
principal amount or, if greater, committed amount of the Indebtedness secured by
Liens described under clauses (f), (h), (i) or (j) at the time the original Lien
became a Permitted Lien under this Indenture and (2) an amount necessary to pay
any fees and expenses, including premiums, related to such Refinancings; and (r)
Liens not expressly permitted by clauses (a) through (q) above; provided that
the aggregate principal amount of Indebtedness secured by Liens permitted by
this clause (r) (including Attributable Debt permitted by the covenant described
under Section 4.16 and Section 4.03 (b)(vii)) does not at any time exceed $75
million.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
21
"Priority Lien" means any Lien on any Collateral for the
benefit of the holders of any Indebtedness of the Company or any of its
Restricted Subsidiaries that is designated by the Company, as permitted by this
Indenture, to rank prior to the Liens on such Collateral for the benefit of the
Holders.
"Priority Lien Obligation" means any Indebtedness, and any
related premium, interest, fees and expenses, that is secured by a Priority
Lien. The relative priorities of the Priority Lien Obligations are determined by
agreement among the holders of the Priority Lien Obligations.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness (a)
consisting of the deferred purchase price of an asset, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (b) Incurred
to finance the acquisition by the Company or a Restricted Subsidiary of such
asset, including additions and improvements; provided, however, that such
Indebtedness is incurred within 180 days after the acquisition by the Company or
such Restricted Subsidiary of such asset.
"Ratings Agency" shall mean Moody's or S&P.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture including Indebtedness of the Company that Refinances
Refinancing Indebtedness; provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity either (i) no earlier than the Stated
Maturity of the Indebtedness being Refinanced or (ii) at least 91 days after the
Stated Maturity of the Securities, (b) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is equal
to or greater than the Average Life of the Indebtedness being Refinanced, (c)
such Refinancing Indebtedness is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced and (d) if the Indebtedness being Refinanced is subordinated in
right of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the same extent
as the Indebtedness being Refinanced; provided further, however, that
Refinancing
22
Indebtedness shall not include (i) Indebtedness of a Restricted Subsidiary that
is not a Subsidiary Guarantor that Refinances Indebtedness of the Company or
(ii) Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Representative" means in the case of any Other Pari Passu
Lien Obligations, any administrative agent, trustee or similar representative
designated as such by the holders of any Other Pari Passu Lien Obligations
pursuant to Section 11.08(d).
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Subsidiary
Guarantor or between Subsidiary Guarantors.
"SEC" means the Securities and Exchange Commission.
"Second Priority Collateral Agreement" means the Second
Priority Collateral Agreement dated as of December 23, 2003, among the Company,
the Subsidiary Guarantors and the Collateral Agent.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a
correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Securitization" means the transfer and sale by the Company or
a Restricted Subsidiary of accounts receivable (including Account Assets) or
inventory to a Securitization Vehicle, which Securitization Vehicle finances the
acquisition of such assets (a) with proceeds from the issuance of Third Party
Securities, (b) with Sellers' Retained Interests and (c) with proceeds from the
sale or collection of accounts receivable (including Account Assets) or
inventory previously purchased by such Securitization Vehicle.
"Securitization Vehicle" means a special purpose trust,
partnership, limited liability company or similar entity formed at the direction
of the Company for the purpose of effecting one or more Securitizations which,
in connection therewith, issues Third Party Securities.
23
"Security Documents" means one or more security agreements,
pledge agreements, mortgages, deeds of trust and collateral assignments defining
the terms of the security interests that secure the Securities and the
Subsidiary Guarantees.
"Sellers' Retained Interests" means the debt or equity
interests held by the Company or any Restricted Subsidiary in a Securitization
Vehicle to which accounts receivable (including Account Assets) or inventory of
the Company and the Restricted Subsidiaries have been transferred in a
Securitization, including any such debt or equity received in consideration for
the assets transferred.
"Senior Indebtedness" of the Company or any Subsidiary
Guarantor means the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Company or any Subsidiary Guarantor,
regardless of whether or not a claim for post-filing interest is allowed in such
proceedings) and fees and other amounts owing in respect of, Bank Indebtedness
and all other Indebtedness of the Company or any Subsidiary Guarantor, as
applicable, whether outstanding on the Closing Date or thereafter Incurred,
including the 8-3/4% Senior Notes, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such obligations are subordinated in right of payment to the Securities or
such Subsidiary Guarantor's Subsidiary Guarantee; provided, however, that Senior
Indebtedness of the Company or any Subsidiary Guarantor shall not include (a)
any obligation of the Company to any Subsidiary of the Company or of such
Subsidiary Guarantor to the Company or any other Subsidiary of the Company, (b)
any liability for Federal, state, local or other taxes owed or owing by the
Company or such Subsidiary Guarantor, as applicable, including any Subordinated
Obligations of the Company or such Subsidiary Guarantor, as applicable, (c) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including Guarantees thereof or instruments evidencing such
liabilities), (d) any Indebtedness or obligation of the Company or such
Subsidiary Guarantor (and any accrued and unpaid interest in respect thereof)
that by its terms is subordinate or junior in any respect to any other
Indebtedness or obligation of the Company or such Subsidiary Guarantor, as
applicable, (e) any obligations with respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"S&P" means Standard and Poor's Ratings Service, a division of
The McGraw-Hill Companies, Inc.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security upon a sale of
24
assets or at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of a Subsidiary Guarantor has a
correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a Subsidiary of the Company pursuant to
the terms of this Indenture.
"Subsidiary Guarantor" means any Subsidiary that has issued a
Subsidiary Guarantee.
"Temporary Cash Investments" means any of the following: (a)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, (b) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued or guaranteed by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act), (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above, (d)
investments in commercial paper, maturing not more than 270 days after the date
of acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America or any
foreign country recognized by the United States of America with a rating at the
time as of which any investment therein is made of "P-1" (or higher) according
to Moody's or "A-1" (or higher) according to S&P, (e) investments in money
market funds the investments of which consist solely of investments of the type
described in clause (a) through (d) above, and (f) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States of
America, or by any political
25
subdivision or taxing authority thereof, and rated at least "A" by S&P or "A" by
Moody's.
"Third Party Securities" means, with respect to any
Securitization, notes, bonds or other debt instruments, beneficial interests in
a trust, undivided ownership interests or other securities issued for cash
consideration by the relevant Securitization Vehicle to banks, investors or
other financing sources (other than the Company and its Subsidiaries) the
proceeds of which are used to finance, in whole or part, the purchase by such
Securitization Vehicle of accounts receivable (including Account Assets) or
inventory in a Securitization.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) Calva Products Co., Inc.,
Cheese & Protein International LLC, ESSV, LLC, Hejlik Pig Co. LC, Heritage
Trading Company, LLC, Land O'Lakes Capital Trust I, LOLFC, LLC, LOL Finance Co.,
MoArk LLC, Munson Lakes Nutrition, LLC, New Feeds, LLC, Northern Country Feeds,
LLC and Soybean Research Foundation, Inc., (b) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (c) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Subsidiary of the Company that
is not a Subsidiary of the Subsidiary to be so designated; provided, however,
that either (i) the Subsidiary to be so designated has total Consolidated assets
of $1,000 or less or (ii) if such Subsidiary has Consolidated assets greater
than $1,000, then such designation would be permitted under Section 4.04. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (a) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (b) no Default shall have
26
occurred and be continuing. Any such designation of a Subsidiary as a Restricted
Subsidiary or Unrestricted Subsidiary by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
For the purposes of determining voting power of Voting Stock, the voting rights
of which vary, Voting Stock shall be deemed to have the number of votes equal to
the number of votes such Voting Stock was entitled to at the most recent vote of
shareholders.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
- ---- -------
"Affiliate Transaction".............................................................. 4.07(a)
"Appendix"........................................................................... Preamble
"Bankruptcy Law"..................................................................... 6.01
"beneficial ownership"............................................................... 1.01
"Change of Control Offer"............................................................ 4.08(b)
"covenant defeasance option"......................................................... 8.01(b)
"Custodian".......................................................................... 6.01
"Definitive Securities".............................................................. Appendix A
"Event of Default"................................................................... 6.01
"Exchange Securities"................................................................ Preamble
"Fall-Away Date"..................................................................... 4.17
"Global Securities".................................................................. Appendix A
"Guaranteed Obligations"............................................................. 10.01
"incorporated provision"............................................................. 12.01
"Initial Securities"................................................................. Preamble
"legal defeasance option"............................................................ 8.01(b)
"Notice of Default".................................................................. 6.01
27
Defined in
Term Section
- ---- -------
"Offer".............................................................................. 4.06(b)
"Offer Amount"....................................................................... 4.06(c)(ii)
"Offer Period"....................................................................... 4.06(c)(ii)
"Original Securities"................................................................ Preamble
"Paying Agent"....................................................................... 2.04
"protected purchaser"................................................................ 2.08
"Purchase Date"...................................................................... 4.06(c)(i)
"Registration Agreement"............................................................. Appendix A
"Registered Exchange Offer".......................................................... Appendix A
"Registrar".......................................................................... 2.04
"Restricted Payment"................................................................. 4.04(a)
"Securities Custodian"............................................................... Appendix A
"Successor Company".................................................................. 5.01(a)
"Transfer Restricted Security"....................................................... Exhibit A
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
28
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.
Subject to the conditions, and in compliance with the covenants, set forth
herein, the aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited. The Securities may be
issued in one or more series. All Securities of any one series shall be
substantially identical except as to denomination.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a resolution of the Board of Directors and
(b) (i) set forth or determined in the manner provided in an Officers'
Certificate or (ii) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such
Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which, subject to the conditions, and in compliance with the
covenants, set forth herein, may be in an unlimited aggregate principal
amount;
29
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set
forth in Exhibit A hereto and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of the Appendix in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the depositary for such Global Security or a nominee
thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the Board of Directors,
a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the indenture
supplemental hereto setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The (a) Original Securities and the Trustee's
certificate of authentication and (b) any Additional Securities (if issued as
Transfer Restricted Securities) and the Trustee's certificate of authentication
shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company or any Subsidiary Guarantor is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The Securities shall be issuable only in registered form without interest
coupons and only in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
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If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Company. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent, and the term "Registrar" includes any co-registrars. The Company
initially appoints the Trustee as (i) Registrar and Paying Agent in connection
with the Securities and (ii) the Securities Custodian with respect to the Global
Securities.
(b) The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically organized Wholly Owned Subsidiaries may act
as Paying Agent or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above.
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The Registrar or Paying Agent may resign at any time upon written notice to the
Company and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. On or prior
to each due date of the principal of and interest on any Security, the Company
shall deposit with the Paying Agent (or if the Company or a Wholly Owned
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on the Securities, and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary of the Company 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 a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, 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 Holders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing 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 Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Company shall not be required
to make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Subsidiary Guarantors, the Trustee, the Paying
Agent, and the Registrar may deem and treat the Person in whose name a Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Securities)
interest, if any, on such Security and for all
32
other purposes whatsoever, whether or not such Security is overdue, and none of
the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent, or the
Registrar shall be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
notifies the Company or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (b) gives such
notice prior to the Company or the Trustee having notice that the Security has
been acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a "protected purchaser") and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Trustee to protect the Company, the Trustee, the Paying Agent and the
Registrar from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge the Holder for their expenses in
replacing a Security. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new
Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 12.06, a Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.
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If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities and deliver them in exchange for temporary Securities upon
surrender of such temporary Securities at the office or agency of the Company,
without charge to the Holder.
SECTION 2.11. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Company pursuant to
written direction by an Officer. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Company in issuing
the Securities may use "CUSIP" and ISIN numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" and ISIN numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other
34
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that the Trustee in
its sole discretion shall deem to be fair and appropriate. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but
not more than 60 days before a date for redemption of Securities, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
35
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the
Securities being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
(b) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date;
provided, however, 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 Securities registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00
a.m., New York City time, on the redemption date, the Company shall deposit with
the Paying Agent (or, if the Company or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest on all Securities or portions thereof to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Company to the Trustee for
cancelation. On and after the redemption date, interest shall cease to accrue on
Securities or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent funds sufficient to pay the redemption price of,
plus accrued and unpaid interest on the Securities to be redeemed, unless the
Paying Agent is prohibited from making such payment pursuant to the terms of
this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC for public availability and
provide the Trustee and Holders and prospective Holders (upon request) within 15
days after it files them with the SEC, copies of its annual report and the
information, documents and other reports that are specified in Sections 13 and
15(d) of the Exchange Act. Notwithstanding the foregoing, at any time that (i)
the Company is not subject to the reporting requirements of Sections 13 or 15(d)
of the Exchange Act and (ii) the SEC will not accept filings from companies not
subject to such requirements, the Company may satisfy its obligations under the
preceding sentence by providing the required annual reports, information,
documents and other reports to the Trustee and Holders and prospective Holders
(upon request). The Company also shall comply with the other provisions of
Section 314(a) of the TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto, the Consolidated Coverage Ratio would be
greater than 2.5 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness in an aggregate principal amount not to
exceed $695.0 million less, without duplication, (1) the aggregate
amount of all prepayments of principal applied to permanently reduce
any such Indebtedness (other than prepayments out of the proceeds of
the Original Securities) and (2) Indebtedness Incurred pursuant to
clause (b)(viii)(1) below;
(ii) (1) Indebtedness Incurred subsequent to the 8-3/4% Senior
Notes Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(ii) of the
37
8-3/4% Senior Notes Indenture and (2) Indebtedness of the Company owed
to and held by any Restricted Subsidiary or Indebtedness of a
Restricted Subsidiary owed to and held by the Company or any other
Restricted Subsidiary; provided, however, that, with respect to both
clauses (1) and (2), (A) any subsequent issuance or transfer of any
Capital Stock or any other event that results in any Restricted
Subsidiary which is the holder of such Indebtedness ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Restricted Subsidiary) shall
be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof and (B) if the Company or a
Restricted Subsidiary that is a Subsidiary Guarantor is the obligor on
such Indebtedness and such Indebtedness is owed to and held by a
Restricted Subsidiary that is not a Subsidiary Guarantor or by the
Company, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations of the Company with respect
to the Securities or such Restricted Subsidiary with respect to its
Subsidiary Guarantee, as applicable;
(iii) the Capital Securities in an aggregate amount not in
excess of $200 million outstanding at any time;
(iv) Indebtedness (1) represented by the 8-3/4% Senior Notes
and the 8-3/4% Senior Notes Guarantees and the Securities (not
including any Additional Securities) and the Subsidiary Guarantees, (2)
outstanding on the 8-3/4% Senior Notes Closing Date (other than the
Indebtedness described in clauses (i), (ii) and (iii) above) or
Incurred under Section 4.03(a) of the 8-3/4% Senior Notes Indenture
after the 8-3/4% Senior Notes Closing Date and prior to the Closing
Date, (3) consisting of Refinancing Indebtedness Incurred in respect of
any Indebtedness described in this clause (iv) (including Indebtedness
that is Refinancing Indebtedness) or Section 4.03(a) or consisting of
Indebtedness Incurred after the 8-3/4% Senior Notes Closing Date and
prior to the Closing Date pursuant to Section 4.03(b)(iv)(3) of the
8-3/4% Senior Notes Indenture and (4) consisting of Guarantees by the
Company of Indebtedness of any Restricted Subsidiary and by any
Restricted Subsidiary of Indebtedness of the Company or any other
Restricted Subsidiary or consisting of Indebtedness Incurred after the
8-3/4% Senior Notes Closing Date and prior to the Closing Date pursuant
to Section 4.03(b)(iv)(4) of the 8-3/4% Senior Notes Indenture;
(v) (1) (A) Indebtedness Incurred after the 8-3/4% Senior
Notes Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(v)(1) of the 8-3/4% Senior Notes Indenture and (B) Indebtedness
of a Restricted Subsidiary Incurred and outstanding on or prior to the
date on which such Restricted Subsidiary was acquired by the Company
(other than Indebtedness Incurred in contemplation of, in connection
with, as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Subsidiary of or was otherwise acquired by the
Company); provided, however, that on the date that such Restricted
Subsidiary is acquired by the Company, the Company would have been able
to Incur $1.00 of additional Indebtedness pursuant to
38
Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (v) and (2) (A) Indebtedness
Incurred after the 8-3/4% Senior Notes Closing Date and prior to the
Closing Date pursuant to Section 4.03(b)(v)(2) of the 8-3/4% Senior
Notes Indenture and (B) Refinancing Indebtedness Incurred by a
Restricted Subsidiary in respect of Indebtedness Incurred by such
Restricted Subsidiary pursuant to this clause (v);
(vi) (1) Indebtedness (A) Incurred after the 8-3/4% Senior
Notes Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(vi)(1) of the 8-3/4% Senior Notes Indenture and (B) in respect
of performance bonds, bankers' acceptances, letters of credit and
surety or appeal bonds provided by the Company and the Restricted
Subsidiaries in the ordinary course of their business, and (2)
Indebtedness (A) Incurred after the 8-3/4% Senior Notes Closing Date
and prior to the Closing Date pursuant to Section 4.03(b)(vi)(2) of the
8-3/4% Senior Notes Indenture and (B) under Hedging Obligations that
are Incurred in the ordinary course of business (i) for the purpose of
fixing or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be outstanding,
(ii) for the purpose of fixing or hedging currency exchange rate risk
with respect to any currency exchanges or (iii) for the purpose of
fixing or hedging commodity price risk with respect to any commodity
purchases;
(vii) (1) Indebtedness Incurred after the 8-3/4% Senior Notes
Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(vii) of the 8-3/4% Senior Notes Indenture and (2) Purchase
Money Indebtedness, Capitalized Lease Obligations and Attributable Debt
(in an aggregate principal amount pursuant to clauses (1) and (2) not
in excess of $50 million at any time outstanding);
(viii) (1) (A) Indebtedness Incurred after the 8-3/4% Senior
Notes Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(viii)(1) of the 8-3/4% Senior Notes Indenture and (B)
Indebtedness of Restricted Subsidiaries that are Securitization
Vehicles in respect of Third Party Securities in an aggregate amount
pursuant to clauses (A) and (B) not to exceed $200 million at any time
outstanding and (2) (A) Indebtedness Incurred after the 8-3/4% Senior
Notes Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(viii)(2) of the 8-3/4% Senior Notes Indenture and (B)
Indebtedness consisting solely of Liens on Sellers' Retained Interests
in connection with Securitizations permitted by this Indenture securing
obligations in respect of Third Party Securities permitted to be
Incurred under clause (1) above;
(ix) (1) Indebtedness Incurred after the 8-3/4% Senior Notes
Closing Date and prior to the Closing Date pursuant to the Section
4.03(b)(ix) of the 8-3/4% Senior Notes Indenture and (2) Indebtedness
consisting of loans from Agriliance and MoArk in the ordinary course of
business for cash management purposes, which loans shall not be
outstanding for more than 30 days, in an aggregate principal amount
pursuant to clauses (1) and (2) not to exceed $20 million outstanding
at any time; or
39
(x) (1) Indebtedness Incurred after the 8-3/4% Senior Notes
Closing Date and prior to the Closing Date pursuant to Section
4.03(b)(x) of the 8-3/4% Senior Notes Indenture and (2) Indebtedness
(other than Indebtedness permitted to be Incurred pursuant to Section
4.03(a) or any other clause of this Section 4.03(b)) in an aggregate
principal amount on the date of Incurrence that, when added to all
other Indebtedness Incurred pursuant to clauses (1) and (2) of this
clause (x) and then outstanding, shall not exceed $75 million.
(c) Notwithstanding the foregoing, the Company shall not Incur
any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are
used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund
or refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may Incur pursuant to this Section shall not be deemed to be exceeded solely as
a result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the Closing Date shall be treated as
Incurred pursuant to Section 4.03(b)(i), (ii) Indebtedness permitted by this
Section 4.03 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section 4.03 permitting such
Indebtedness and (iii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section, the Company, in
its sole discretion, shall classify such Indebtedness and only be required to
include the amount of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend, make any distribution on or in
respect of its Capital Stock or make any similar payment (including any payment
of Patronage or any payment in connection with any merger or consolidation
involving the Company or any Subsidiary of the Company) to the direct or
indirect holders of its Capital Stock, except (1) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock or Preferred
Stock), (2) dividends or distributions payable to the Company or a Restricted
Subsidiary (and, if such Restricted Subsidiary has shareholders other than the
Company or other Restricted Subsidiaries, to its other shareholders on a pro
rata basis) and (3) dividends paid in respect of the Capital Securities, (ii)
purchase, repurchase, redeem, retire, make any revolvement payment or otherwise
acquire for value any Capital Stock of the Company or any Restricted Subsidiary
held by Persons other than the Company or a Restricted Subsidiary (it being
understood that amounts owed from Members that can be offset against Patronage
payable to such Members shall be deemed not to be covered by this clause (ii)),
(iii) purchase, repurchase, redeem, retire, defease or otherwise acquire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment any Subordinated Obligations or any Indebtedness owed to the trust
entity that
40
has issued the Capital Securities (other than the purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition) or (iv) make any Investment (other than a
Permitted Investment) in any Person (any dividend, distribution, payment,
purchase, redemption, repurchase, defeasance, retirement, other acquisition or
Investment described in the foregoing items (i), (ii), (iii) and (iv) being
herein referred to as a "Restricted Payment") if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the
Board of Directors) declared or made subsequent to the 8-3/4% Senior
Notes Closing Date would exceed the sum, without duplication, of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from January 1,
2001 to the end of the most recent fiscal quarter for which
consolidated financial statements of the Company are publicly
available prior to the date of such Restricted Payment (or, in
case such Consolidated Net Income shall be a deficit, minus
100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the 8-3/4% Senior Notes
Closing Date (other than an issuance or sale to (x) a
Subsidiary of the Company or (y) an employee stock ownership
plan or other trust established by the Company or any of its
Subsidiaries);
(C) the amount by which Indebtedness of the Company
or its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the 8-3/4% Senior
Notes Closing Date of any Indebtedness of the Company or its
Restricted Subsidiaries issued after the 8-3/4% Senior Notes
Closing Date which is convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company (less the
amount of any cash or the Fair Market Value of other property
distributed by the Company or any Restricted Subsidiary upon
such conversion or exchange);
41
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries subsequent to the
8-3/4% Senior Notes Closing Date resulting from (x) payments
of dividends, repayments of the principal of loans or advances
or other transfers of assets to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries or (y) the
redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments; and
(E) an amount equal to the cash distributions
received by the Company or any of its Restricted Subsidiaries
from any other Person (other than the Company or a Restricted
Subsidiary of the Company) during the period (treated as one
accounting period) from the beginning of the fiscal quarter
during which the 8-3/4% Senior Notes Closing Date occurred to
the end of the most recent fiscal quarter for which
consolidated financial statements of the Company are publicly
available prior to the date of such Restricted Payment.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or other trust established by the Company
or any of its Subsidiaries); provided, however, that (1) such purchase,
repurchase, redemption, retirement or other acquisition for value shall
be excluded in the calculation of the amount of Restricted Payments and
(2) the Net Cash Proceeds from such sale applied in the manner set
forth in this clause (i) shall be excluded from the calculation of
amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations of the Company made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Indebtedness of
the Company that is permitted to be Incurred pursuant to Section
4.03(b); provided, however, that such prepayment, repayment, purchase,
repurchase, redemption, retirement, defeasance or other acquisition for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations from Net Available Cash to the extent
permitted by Section 4.06; provided, however, that such prepayment,
repayment, purchase, repurchase, redemption,
42
retirement, defeasance or other acquisition for value shall be excluded
in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividends would
have complied with Section 4.04(a); provided, however, that such
dividends shall be included in the calculation of the amount of
Restricted Payments;
(v) (1) the distribution or payment of Patronage made after
the 8-3/4% Senior Notes Closing Date in an aggregate amount not to
exceed $30 million or (2) the distribution or payment of the Minimum
Patronage Amount; provided, however, that such distributions or
payments will be included in the calculation of the amount of
Restricted Payments; or
(vi) dividends paid by the Company in an aggregate amount not
to exceed $100,000 per annum with respect to its Preferred Stock issued
and outstanding as of the 8-3/4% Senior Notes Closing Date in
accordance with the terms thereof on the 8-3/4% Senior Notes Closing
Date; provided, however, that such dividends will be included in the
calculation of the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (b) make any loans or advances to the Company or (c) transfer any of
its property or assets to the Company, except in each case described in the
foregoing (a), (b) and (c):
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the 8-3/4% Senior Notes
Closing Date;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the date
on which such Restricted Subsidiary was acquired by the Company (other
than Indebtedness Incurred as consideration in, in contemplation of, or
to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Company) and outstanding on
such date;
(iii) any encumbrance or restriction (1) entered into after
the 8-3/4% Senior Notes Closing Date and prior to the Closing Date
pursuant to Section 4.05(iii) of the 8-3/4% Senior Notes Indenture or
(2) pursuant to an agreement effecting a Refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (i) or (ii) of
this Section 4.05 or this clause (iii) or contained in any amendment to
an agreement referred to in clause (i) or (ii) of this Section 4.05 or
43
this clause (iii); provided, however, that the encumbrances and
restrictions contained in any such Refinancing agreement or amendment
are no less favorable to the Holders than the encumbrances and
restrictions contained in such predecessor agreements;
(iv) in the case of clause (c) of this Section 4.05, any
encumbrance or restriction (1) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract or (2) contained in
security agreements securing Indebtedness of a Restricted Subsidiary to
the extent such encumbrance or restriction restricts the transfer of
the property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition; and
(vi) customary provisions in joint venture and similar
agreements entered into in the ordinary course of business.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition, (ii) at
least 80% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash and (iii) an amount equal to 100%
of the Net Available Cash from such Asset Disposition is applied by the Company
(or such Restricted Subsidiary, as the case may be) (1) first, to the extent the
Company elects (or is required by the terms of any Indebtedness), to prepay,
repay, purchase, repurchase, redeem, retire, defease, or otherwise acquire for
value Bank Indebtedness of the Company or Indebtedness (other than obligations
in respect of Preferred Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company and other
than obligations in respect of Disqualified Stock) within 270 days after the
later of the date of such Asset Disposition or the receipt of such Net Available
Cash; (2) second, to the extent of the balance of Net Available Cash after
application in accordance with clause (1), to the extent the Company or such
Restricted Subsidiary elects, to reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary) within
270 days from the later of such Asset Disposition or the receipt of such Net
Available Cash; provided, however, that in the case of an Asset Disposition of
any Collateral or Excluded Securities, such Additional Assets (other than any
assets that are specifically excluded from the Collateral pursuant to the terms
of the Security Documents) are added, substantially concurrently with their
acquisition, to the Collateral securing (with the same priority as the assets
disposed of) the Securities and the Subsidiary Guarantees; (3) third, to the
extent of the balance of
44
such Net Available Cash after application in accordance with clauses (1) and
(2), to make an Offer (as defined in Section 4.06(b)) to purchase Securities
pursuant to and subject to the conditions of Section 4.06(b); provided, however,
that if the Company elects (or is required by the terms of any other Senior
Indebtedness), such Offer may be made ratably to purchase the Securities and
other Senior Indebtedness of the Company, and (4) fourth, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(1), (2) and (3),for any general corporate purpose permitted by the terms of
this Indenture; provided, however, that in connection with any prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to clause (1), (3) or (4) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid, purchased, repurchased,
redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the
foregoing provisions of this Section 4.06(a), the Company and the Restricted
Subsidiaries shall not be required to apply any Net Available Cash in accordance
with this Section 4.06(a) except to the extent that the aggregate Net Available
Cash from all Asset Dispositions that is not applied in accordance with this
Section 4.06(a) exceeds $10 million.
For the purposes of Section 4.06(a)(ii), the following are
deemed to be cash: (A) the assumption of Indebtedness of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted
Subsidiary (other than obligations in respect of Disqualified Stock and
Preferred Stock of a Restricted Subsidiary that is Subsidiary Guarantor) and the
release of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition, (B) securities received
by the Company or any Restricted Subsidiary from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into cash and
(C) any Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received
pursuant to (i) Section 4.06(a) of the 8-3/4% Senior Notes Indenture after the
8-3/4% Senior Notes Closing Date and prior to the Closing Date and (ii) this
clause (C), not to exceed a cumulative amount of $50 million (with the Fair
Market Value of each item of Designated Noncash Consideration being measured at
the time received and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 4.06(a)(iii)(3), the Company shall be
required (i) to purchase Securities tendered pursuant to an offer by the Company
for the Securities (the "Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest thereon, if any, to the date of purchase
(subject to the right of Holders of record on the relevant date to receive
interest due on the relevant interest payment date) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
Section 4.06(c) and (ii) to purchase other Senior Indebtedness of the Company on
the terms and to the extent contemplated thereby (provided that in no event
shall the Company offer to purchase such other Senior Indebtedness of the
Company at a purchase price in excess of 100% of its principal amount (without
premium), plus accrued and
45
unpaid interest thereon. If the aggregate purchase price of Securities (and
other Senior Indebtedness) tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities (and other Senior
Indebtedness), the Company shall apply the remaining Net Available Cash in
accordance with Section 4.06(a)(iii)(4). The Company shall not be required to
make an Offer for Securities (and other Senior Indebtedness) pursuant to Section
4.06(a)(iii)(3) if the Net Available Cash available therefor (after application
of the proceeds as provided in clauses (1) and (2) of Section 4.06(a)(iii)) is
less than $10 million for any particular Asset Disposition (which lesser amount
shall be carried forward for purposes of determining whether an Offer is
required with respect to the Net Available Cash from any subsequent Asset
Disposition).
(c) (i) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorating as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum shall
include (1) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports), (2) a description of material
developments in the Company's business subsequent to the date of the latest of
such reports, and (3) if material, appropriate pro forma financial information)
and all instructions and materials necessary to tender Securities pursuant to
the Offer, together with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall deliver
to the Trustee an Officers' Certificate as to (1) the amount of the Offer (the
"Offer Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the amount delivered by
the Company to the Trustee is greater than the purchase price of the Securities
(and other Senior Indebtedness) tendered,
46
the Trustee shall deliver the excess to the Company immediately after the
expiration of the Offer Period for application in accordance with this Section
4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company 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 or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities and any other
Senior Indebtedness included in the Offer surrendered by holders thereof exceeds
the Offer Amount, the Company shall select the Securities and other Senior
Indebtedness to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that only Securities and other Senior
Indebtedness in denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(iv) At the time the Company delivers Securities to the
Trustee which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction or series of
related transactions (including, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in
the event such Affiliate Transaction involves an aggregate amount in excess of
$10 million, (1) are set forth in writing and (2) have been approved by a
majority of the members of the Board of Directors having no personal stake in
such Affiliate Transaction, other than as a Member of the Company generally, and
(iii) that, in the event
47
that such Affiliate Transaction involves an amount in excess of $25 million,
have been determined by a nationally recognized appraisal or investment banking
firm to be fair, from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i)
any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements approved by
the Board of Directors, (iii) loans or advances to employees in the ordinary
course of business in accordance with past practices of the Company, but in any
event not to exceed $5 million in the aggregate outstanding at any one time,
(iv) the payment of reasonable fees to directors of the Company and its
Subsidiaries who are not employees of the Company or its Subsidiaries, (v) any
transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, (vi) any agreement as in effect as of the Closing Date
on the terms described in the Offering Memorandum or any amendment or
replacement agreement thereto (so long as any such amendment or replacement
agreement is not disadvantageous to the Holders of the Securities in any
material respect); or (vii) Securitizations permitted by Section 4.03 and
Section 4.06; (viii) loans to or from Agriliance and MoArk in the ordinary
course of business for cash management purposes in an aggregate principal amount
not to exceed $20 million outstanding at any time, which loans shall not be
outstanding for more than 30 days; (ix) the provision by the Company or a
Restricted Subsidiary in the ordinary course of business of corporate services
(such as legal services and information technology services) and leasing of the
Company's employees, consistent with past practices, to Affiliates in which the
Company owns Capital Stock; or (x) any licensing or similar agreement entered
into in the ordinary course of business relating to the use of intellectual
property between the Company or a Restricted Subsidiary and Affiliates in which
the Company owns Capital Stock.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company purchase all or any
part of such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), in accordance
with the terms contemplated in Section 4.08(b); provided, however, that
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase the Securities pursuant to this Section 4.08 in the event
that it has exercised its right to redeem all the Securities under paragraph 5
of the Securities. In the event that at the time of such Change of Control the
terms of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section 4.08, then prior to the mailing of the notice to
Holders provided for in Section 4.08(b) below but in any event within 30 days
following any Change of Control, the Company shall (i) repay in full all Bank
Indebtedness or, if doing so will allow the purchase of Securities, offer to
repay in full all Bank Indebtedness and repay the Bank Indebtedness of each
lender who has accepted such offer or (ii) obtain the requisite consent under
the agreements governing the Bank Indebtedness to permit the repurchase of the
Securities as provided for in Section 4.08(b).
48
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Company
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest
payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company 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 or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancelation,
and the Company shall pay the purchase price plus accrued and unpaid interest to
the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if 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 Section 4.08(b) applicable to a Change of Control Offer made by the Company
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
(f) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section 4.08. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
49
(g) Prior to any Change of Control Offer, the Company shall
deliver to the Trustee an Officers' Certificate stating that all conditions
precedent contained herein to the right of the Company to make such offer have
been complied with.
(h) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Cooperative Status. The Company shall maintain
its status as a cooperative under both Subchapter T of the Code and Minnesota
Law.
SECTION 4.12. Future Subsidiary Guarantors. The Company shall
cause (a) at any time that any Bank Indebtedness is outstanding, each Subsidiary
of the Company that Incurs or enters into a Guarantee of any Bank Indebtedness
and (b) at any time that no Bank Indebtedness is outstanding, each domestic and,
to the extent no material adverse tax consequences would result therefrom,
foreign Restricted Subsidiary of the Company that Incurs any Indebtedness, to
become a Subsidiary Guarantor, and, if applicable, execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C pursuant to which such
Subsidiary will Guarantee payment of the Securities. In such event, the Company
shall as promptly as practicable cause such Subsidiary Guarantor to execute and
deliver to the Trustee Security Documents pursuant to which its assets
constituting Collateral will be pledged to secure its Subsidiary Guarantee of
the Securities.
SECTION 4.13. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Permitted Business.
50
SECTION 4.14. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of a Restricted Subsidiary (other than
any such transaction resulting in a Lien that constitutes a Permitted Lien), and
shall not permit any Restricted Subsidiary, directly or indirectly, to issue or
sell or otherwise dispose of any shares of its Capital Stock except: (a) to the
Company or a Restricted Subsidiary; (b) if, immediately after giving effect to
such issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary, (c) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect thereto would have been permitted
to be made under Section 4.04 if made on the date of such issuance, sale or
other disposition (and such Investment shall be deemed to be an Investment for
the purposes of such covenant); or (d) if, immediately after giving effect to
such issuance, sale or other disposition, such Restricted Subsidiary would
continue to constitute a Restricted Subsidiary. The proceeds of any sale of such
Capital Stock permitted hereby shall be treated as Net Available Cash from an
Asset Disposition and shall be applied in accordance with Section 4.06.
SECTION 4.15. Limitation on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
permit to exist any Lien of any nature whatsoever on any of its property or
assets (including Capital Stock of a Restricted Subsidiary), whether owned at
the Closing Date or thereafter acquired, other than (a) in the case of any asset
that does not constitute Collateral (including assets previously constituting
Collateral that have been released from the Liens securing the Securities and
the Subsidiary Guarantees), Permitted Liens; provided, however, that any Lien on
such assets shall be permitted notwithstanding that it is not a Permitted Lien
if all payments due under this Indenture, the Securities and the Subsidiary
Guarantees are secured on an equal and ratable basis with (or, in the case of
any Subordinated Obligation, on a prior basis to) the obligations so secured
until such time as such obligations are no longer secured by a Lien on such
assets; and (b) in the case of any asset that constitutes Collateral, Permitted
Collateral Liens. Notwithstanding the foregoing, to the extent that any asset
that does not already constitute Collateral (other than the Capital Stock of a
Securitization Vehicle) is pledged after the Closing Date by the Company or any
Restricted Subsidiary to secure Bank Indebtedness, including any Refinancings
thereof, or any other Priority Lien Obligations, such asset shall also be
pledged to secure the Securities and the Subsidiary Guarantees on an immediately
junior basis to the Bank Indebtedness or other Priority Lien Obligation so
secured by such asset (subject to Permitted Collateral Liens) and such asset
will thereafter be deemed to be part of the Collateral.
SECTION 4.16. Limitation on Sale/Leaseback Transactions. The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (a) the
Company or such Restricted Subsidiary would be entitled to (i) Incur
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale/Leaseback Transaction pursuant to Section 4.03 and (ii) create a Lien on
such property securing such Attributable Debt without equally and ratably
securing the Securities pursuant to Section 4.15, (b) the gross
51
proceeds received by the Company or such Restricted Subsidiary in connection
with such Sale/Leaseback Transaction are at least equal to the Fair Market Value
of such property and (c) the transfer of such property is permitted by, and the
Company applies the proceeds of such transaction in compliance with, Section
4.06; provided, however, that after the Fall-Away Date the requirements of
clauses (a)(i) and (c) above shall no longer apply.
SECTION 4.17. Fall-Away of Covenants. After the date (such
date, the "Fall-Away Date") on which (a) the Securities have been assigned an
Investment Grade rating by both Rating Agencies; (b) if the Investment Grade
rating is BBB-, in the case of S&P, or Baa3, in the case of Moody's, it shall
not be accompanied by either (i) in the case of S&P, a negative outlook, credit
watch negative or the equivalent thereof or (ii) in the case of Moody's, a
negative outlook, a review for possible downgrade or the equivalent thereof; (c)
no Default or Event of Default has occurred and is continuing; and (d) the
Company has delivered an Officers' Certificate to the Trustee certifying that
the conditions set forth in clauses (a), (b) and (c) above are satisfied and
notwithstanding that the Securities may later cease to have an Investment Grade
rating by either or both Rating Agencies or that the Investment Grade rating may
later be accompanied by either items (i) or (ii) set forth in clause (b) above,
the Company and the Restricted Subsidiaries will no longer be subject to the
following provisions of this Indenture: Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.13, 4.14, 4.18 and 5.01(a)(iii). In addition, following the Fall-Away Date,
the Company may elect to release any or all of the Collateral from the Liens
securing the Securities and the Subsidiary Guarantees.
SECTION 4.18. Perfected Security Interests. The Company will
deliver or cause to be delivered to the Trustee on the Closing Date evidence
reasonably satisfactory to the Trustee (which may consist of an Officers'
Certificate or other certificate of the Company) of (a) the completion and
effectiveness of all filings, recordings and registrations of the Security
Documents, and such other financing statements and security documents, and the
taking of such other actions, as may be necessary or desirable to perfect the
Pari Passu Liens on all or substantially all the Collateral (other than real
property) created, or intended to be created, by the Security Documents for the
benefit of the Holders of Securities, subject to Permitted Collateral Liens (but
only to the extent the Liens on such Collateral securing the Bank Indebtedness
are perfected) and (b) the full payment of all filing fees, taxes and other
amounts payable in connection with such filings, recordings or registrations
(unless such amounts payable are not accepted at the time of such filings,
recordings or registrations and are otherwise billed to the Company). With
respect to the Collateral, if any, as to which the Company is not able to
complete such actions by the Closing Date, the Company will use its commercially
reasonable efforts to complete such actions as soon as reasonably practical
after the Closing Date.
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ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. (a)
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such transaction and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred.
The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, but in the case of a conveyance, transfer or lease of all or
substantially all the Company's assets the obligation to pay the principal of
and interest on the Securities will remain in full force and effect.
53
(b) In addition, except in a transaction as a result of which
the Subsidiary Guarantor would be released from its Subsidiary Guarantee as
provided in this Indenture, the Company will not permit any Subsidiary Guarantor
to consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless:
(i) the resulting, surviving or transferee Person (the
"Successor Guarantor") will be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia, and such Person (if not such Subsidiary
Guarantor) shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any Restricted Subsidiary as a result of such transaction
as having been Incurred by the Successor Guarantor or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
(c) Notwithstanding the foregoing, any Restricted Subsidiary
may consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Subsidiary Guarantor.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(a) the Company defaults in any payment of interest on any
Security when the same becomes due and payable and such default
continues for a period of 30 days;
(b) the Company (i) defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration or
otherwise or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities;
(c) the Company or any Restricted Subsidiary fails to comply
with Section 5.01;
54
(d) the Company or any Restricted Subsidiary fails to comply
with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16 or 4.18 (other than a failure to purchase
Securities when required under Section 4.06 or 4.08) and such failure
continues for 30 days after a Notice of Default specified below;
(e) the Company or any Restricted Subsidiary fails to comply
with any of its agreements in the Securities or this Indenture (other
than those referred to in (a), (b), (c) or (d) above) or the Security
Documents and such failure continues for 60 days after a Notice of
Default specified below;
(f) Indebtedness of the Company or any Restricted Subsidiary
is not paid within any applicable grace period after final maturity or
any such Indebtedness is accelerated by the holders thereof because of
a default and the total amount of such Indebtedness unpaid or
accelerated exceeds $15 million or its foreign currency equivalent at
the time;
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
55
(i) any judgment or decree for the payment of money (other
than judgments which are covered by enforceable insurance policies
issued by reputable and creditworthy insurance companies for which
coverage has been acknowledged in writing) in excess of $15 million or
its foreign currency equivalent is rendered against the Company or a
Restricted Subsidiary if (i) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or (ii) there is
a period of 60 days following the entry of such judgment or decree
during which such judgment or decree is not discharged, waived or the
execution thereof stayed;
(j) any Subsidiary Guarantee ceases to be in full force and
effect (except as contemplated by the terms thereof) or any Subsidiary
Guarantor denies or disaffirms its obligations under this Indenture or
any Subsidiary Guarantee and such Default continues for 10 days after
receipt of a Notice of Default specified below; or
(k) (i) the Company or any Subsidiary Guarantor repudiates or
disaffirms its obligations under any of the Security Documents or a
determination is made in a judicial proceeding that any of the Security
Documents is unenforceable or invalid against the Company or any
Subsidiary Guarantor for any reason with respect to any material
portion of the Collateral, or (ii) any Security Document shall cease to
be in full force and effect (other than in accordance with the terms of
the applicable Security Document or this Indenture), or cease to be
effective in all material respects to grant the Collateral Agent a
perfected Lien on the Collateral (but only to the extent the applicable
Security Documents contemplated perfection and except as a result of
the Collateral Agent's failure to file any necessary continuation
statements or the Collateral Agent's or the Credit Facilities
Collateral Agent's failure to maintain possession of any stock
certificates, notes or other instruments delivered to it) with the
priority purported to be created thereby (other than in accordance with
the terms of the applicable Security Document or this Indenture) and,
in each case, such Default continues for 10 days after receipt of a
Notice of Default specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (d), (e), (j) or (k) above is not an
Event of Default until the Trustee notifies the Company or the Holders of at
least 25% in principal amount of the outstanding Securities notify the Company
and the Trustee of the Default and the Company or the Subsidiary Guarantor, as
applicable, does not cure such Default within
56
the time specified in clauses (d), (e), (j) or (k) after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company, may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(g) or (h) with respect to the Company occurs,
the principal of and interest on all the Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. The Holders of a majority in principal amount of
the Securities 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.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. Subject to the
provisions of Section 9.01 hereof, the Holders of a majority in principal amount
of the Securities by notice to the Trustee may waive an existing Default and its
consequences except (a) a Default in the payment of the principal of or interest
on a Security, (b) a Default arising from the failure to redeem or purchase any
Security when required pursuant to the terms of this Indenture or (c) a Default
in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
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SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of
the Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) 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. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
then due and owing (together with interest on overdue principal and (to the
extent lawful) on any unpaid interest at the rate provided for in the
Securities) and the amounts provided for in Section 7.07.
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SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Company, any Subsidiary or
Subsidiary Guarantor, their creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall, subject to the requirements of
the Intercreditor Agreement or any Other Intercreditor Agreements, pay out the
money or property 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
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
Company nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Subsidiary Guarantor (to the extent
that it may lawfully do so) hereby
59
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
Except with respect to Sections 4.02 and 4.09, the Trustee
shall have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article IV.
Delivery of reports, information and documents to the Trustee
under Article IV is for informational purposes only and the Trustee's receipt of
the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
60
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities 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.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or
61
document unless requested in writing to do so by the Holders of not less than a
majority in principal amount of the Securities at the time outstanding, 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.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company or any Subsidiary
Guarantor in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (f), (g), (h),
(i), (j) or (k) or of the identity of any Significant Subsidiary unless either
(a) a Trust Officer shall have actual knowledge thereof or (b) the Trustee shall
have received notice thereof in accordance with Section 12.02 hereof from the
Company, any Subsidiary Guarantor or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a Trust Officer or written notice of it is received by
the Trustee. Except in the case of a Default in payment of principal of or
premium, if any, or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to June 15 in each year, the Trustee
shall mail to each Holder a brief report dated as of such May 15 that complies
with Section 313(a) of the TIA if and to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
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SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Subsidiary Guarantor, jointly and severally shall
indemnify the Trustee against any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by or in connection with the administration
of this trust and the performance of its duties hereunder. The Trustee shall
notify the Company of any claim for which it may seek indemnity promptly upon
obtaining actual knowledge thereof; provided, however, that any failure so to
notify the Company shall not relieve the Company or any Subsidiary Guarantor of
its indemnity obligations hereunder. The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company's expense
in the defense. Such indemnified parties may have separate counsel and the
Company and the Subsidiary Guarantors, as applicable shall pay the fees and
expenses of such counsel; provided, however, that the Company shall not be
required to pay such fees and expenses if it assumes such indemnified parties'
defense and, in such indemnified parties' reasonable judgment, there is no
conflict of interest between the Company and the Subsidiary Guarantors, as
applicable, and such parties in connection with such defense. The Company need
not reimburse any expense or indemnify against any loss, liability or expense
incurred by an indemnified party through such party's own wilful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(g) or (h) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may
resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
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(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by
the Holders of a majority in principal amount of the Securities and such Holders
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless
the Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Security for at least six months
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is
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anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA, subject to its right to apply for a stay
of its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) all outstanding Securities (other than Securities
replaced or paid pursuant to Section 2.08) have been canceled or delivered to
the Trustee for cancelation or (ii) all outstanding Securities have become due
and payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article III hereof, and the Company irrevocably deposits
with the Trustee funds in an amount sufficient or U.S. Government Obligations,
the principal of and interest on which will be sufficient, or a combination
thereof sufficient, in the written opinion of a nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited), to pay
the principal of, premium (if any) and interest on the outstanding Securities
when due at maturity or upon redemption, including interest thereon to maturity
or such redemption date (other than Securities replaced or paid pursuant to
Section 2.08) and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities, the Security
Documents and this Indenture ("legal defeasance option"), or (ii) its
obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16 and 4.18 hereof and the operation of Sections
5.01(a)(iii), 5.01(a)(iv), 6.01(d), 6.01(e) (with respect to the Security
Documents), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries of the
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Company only), 6.01(h) (with respect to Significant Subsidiaries of the Company
only), 6.01(i), 6.01(j) and 6.01(k) hereof and its obligations under the
Security Documents ("covenant defeasance option"). The Company may exercise its
legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option. In the event that the Company exercises its legal defeasance
option or its covenant defeasance option, the obligations of each Subsidiary
Guarantor under the Subsidiary Guarantees and the Security Documents shall each
be terminated simultaneously.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d),
6.01(e) (with respect to the Security Documents), 6.01(f), 6.01(g) (with respect
to Significant Subsidiaries only), 6.01(h) (with respect to Significant
Subsidiaries only), 6.01(i), 6.01(j) or 6.01(k) or because of the failure of the
Company to comply with clauses (iii) and (iv) of Section 5.01(a).
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.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article VIII shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
SECTION 8.02. Conditions to Defeasance. (a) The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of, and premium (if any) and
interest on the Securities when due at maturity or redemption, as the
case may be, including interest thereon to maturity or such redemption
date;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal, premium, if
any, and interest , if any, when due on all the Securities to maturity
or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
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(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(1) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article VIII have been complied with.
(b) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and premium (if any) and interest on
the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
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Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal, premium or interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors, and the Trustee and the
Paying Agent shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of principal of or premium or interest on any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture, the Securities,
the Subsidiary Guarantees, the Security Documents and the Intercreditor
Agreement without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to add additional Guarantees with respect to the
Securities;
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(v) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(vi) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(vii) to provide for the addition or release of Collateral
permitted under the terms of this Indenture or the Security Documents;
(viii) to make any change that does not adversely affect the
rights of any Holder; or
(ix) to provide for the issuance of the Exchange Securities,
or Additional Securities.
In addition, without the consent of any Holder (or the consent of, or any other
action by, the Trustee or the Collateral Agent), any amendment, waiver or
consent agreed to by the Credit Facilities Collateral Agent or the holders of
Priority Lien Obligations under any provision of any of the security agreements,
pledge agreements, mortgages, deeds of trust, collateral assignments or other
security documents granting any Priority Lien on any Collateral to secure the
Priority Lien Obligations will automatically apply to the comparable provision
of the comparable Security Document entered into in connection with the
Securities.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture, the Securities,
the Subsidiary Guarantees, the Security Documents or the Intercreditor Agreement
without notice to any Holder but, subject to the provisions of Sections 9.01 and
11.12, with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents obtained
in connection with a tender offer or exchange for the Securities). However,
without the consent of each Holder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
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(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article III or paragraph 5 of the Securities;
(v) make any Security payable in money other than that stated
in the Security;
(vi) impair the right of any Holder to receive payment of
principal of, and interest on, such Holder's Securities on or after the
due dates thereof or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities;
(vii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02;
(viii) modify the Subsidiary Guarantees in any manner adverse
to the Holders; or
(ix) except as provided in Sections 9.01 or 11.12, make any
change in any Security Document, the Intercreditor Agreement or the
provisions of this Indenture dealing with the Security Documents or the
application of proceeds or the Collateral that would adversely affect
the Holders, in each case, except as provided in such agreements.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
(b) After an amendment under this Section 9.02 becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date on which the Trustee or the Company receives the
requisite number of consents. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective upon the (i)
receipt by the Company or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and
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(iii) execution of such amendment or waiver (or supplemental indenture) by the
Company, the Subsidiary Guarantors and the Trustee.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Company
and the Subsidiary Guarantors enforceable against them in accordance with its
terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
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ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees. (a) Each Subsidiary
Guarantor hereby jointly and severally irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Company under this Indenture (including
obligations to the Trustee) and the Securities, whether for payment of principal
of, interest on or premium, if any, in respect of the Securities and all other
monetary obligations of the Company under this Indenture and the Securities and
(ii) the full and punctual performance within applicable grace periods of all
other obligations of the Company whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). The Subsidiary
Guarantee of each Subsidiary Guarantor will be secured by the Collateral owned
by such Subsidiary Guarantor with a Pari Passu Lien in favor of the Holders of
the Securities, subject to the same conditions as the Collateral pledged by the
Company to secure the Securities. Each Subsidiary Guarantor further agrees that
the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Subsidiary Guarantor, and that
each such Subsidiary Guarantor shall remain bound under this Article X
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand
of payment from and protest to the Company of any of the Guaranteed Obligations
and also waives notice of protest for nonpayment. Each Subsidiary Guarantor
waives notice of any default under the Securities or the Guaranteed Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be affected by
(i) the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Securities
or any other agreement; (iv) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (v) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of
such Subsidiary Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which
it may be entitled to have its obligations hereunder divided among the
Subsidiary Guarantors, such that such Subsidiary Guarantor's obligations would
be less than the full amount claimed. Each Subsidiary Guarantor hereby waives
any right to which it may be entitled to have the assets of the Company first be
used and depleted as payment of the Company's or such Subsidiary Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by such
Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby
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waives any right to which it may be entitled to require that the Company be sued
prior to an action being initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held
for payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 10.02
and 10.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity.
(f) Each Subsidiary Guarantor agrees that its Subsidiary
Guarantee shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of,
interest or premium (if any) on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of
any other right which any Holder or the Trustee has at law or in equity against
any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of, interest or premium (if any) on any Guaranteed Obligation
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guaranteed
Obligation, each Subsidiary Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary obligations of the Company then due to the
Holders and the Trustee under the Securities or this Indenture.
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(h) Each Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any Guaranteed Obligations guaranteed hereby until payment in full of all
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 10.01.
(i) Each Subsidiary Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Subsidiary Guarantor
shall execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the purpose
of this Indenture.
SECTION 10.02. Limitation on Liability. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor
shall terminate and be of no further force or effect and such Subsidiary
Guarantor shall be deemed to be released from all obligations under this Article
X upon (i) the merger or consolidation of such Subsidiary Guarantor with or into
any Person, (ii) the sale by the Company or any Subsidiary of the Company (or
any pledgee of the Company) of the Capital Stock of such Subsidiary Guarantor or
(iii) the sale of substantially all the assets of such Subsidiary Guarantor,
where, after such merger, consolidation or sale, such Subsidiary Guarantor is no
longer a Subsidiary of the Company; provided, however, that each such merger,
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b). In addition, at any time that Bank Indebtedness is outstanding,
if any Subsidiary of the Company is released from its Guarantee of, and all
pledges and security interest granted in connection with, the Credit Agreement,
then such Subsidiary shall, at the option of the Company, be released and
relived of any obligations under its Subsidiary Guarantee. A Subsidiary
Guarantee by a Subsidiary of the Company will be automatically released upon (x)
such Subsidiary being designated and Unrestricted Subsidiary in compliance with
Section 4.04 or (y) such Subsidiary ceasing to be a Subsidiary of the Company as
a result of any foreclosure on any pledge or security
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interest securing Bank Indebtedness or other exercise of remedies in respect
thereof if such Subsidiary is released from its Guarantee of, and all pledges
and security interests granted in connection with, the Credit Agreement, unless
such Subsidiary remains a guarantor of the Company's 8 3/4% Senior Notes or any
Subordinated Obligations. At the request of the Company, the Trustee shall
execute and deliver an appropriate instrument evidencing such release (in the
form provided by the Company).
SECTION 10.03. Successors and Assigns. This Article X shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article X at
law, in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or
waiver of any provision of this Article X, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 10.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.12 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article X
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
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SECTION 10.07. Non-Impairment. The failure to endorse a
Subsidiary Guarantee on any Security shall not affect or impair the validity
thereof.
ARTICLE XI
Security Documents
SECTION 11.01. Collateral and Security Documents. The
Securities and the Subsidiary Guarantees are secured as provided in the Security
Documents, subject to the terms of the Intercreditor Agreement. Each Holder (a)
hereby consents to the subordination of the Liens securing the Securities and
the Subsidiary Guarantees on the terms set forth in the Intercreditor Agreement,
(b) hereby agrees that it will be bound by and will take no actions contrary to
the provisions of the Intercreditor Agreement and (c) hereby authorizes and
instructs the Collateral Agent to enter into the Intercreditor Agreement and to
subject the Securities and the Subsidiary Guarantees and the Liens securing the
Securities and the Subsidiary Guarantees to the provisions thereof. The
foregoing provisions are intended as an inducement to the Senior Obligations
Secured Parties (as defined the Intercreditor Agreement) to extend credit to the
Company, and such Senior Obligations Secured Parties are intended third party
beneficiaries of such provisions and the provisions of the Intercreditor
Agreement. The Company shall deliver to the Trustee (if it is not itself then
the Collateral Agent) copies of all documents delivered to the Collateral Agent
pursuant to the Security Documents, and will do or cause to be done all such
acts and things as may be required by the next sentence of this Section 11.01 to
assure and confirm to the Trustee and the Collateral Agent the security interest
in the Collateral contemplated hereby or by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Securities and the
Subsidiary Guarantees according to the intent and purposes herein expressed. The
Company shall take, and shall cause the Subsidiary Guarantors to take, any and
all actions reasonably required to cause the Security Documents to create and
maintain, as security for the Securities and the Subsidiary Guarantees, a valid
and enforceable Lien and security interest in and on all material portions of
the Collateral (subject to the terms of the Intercreditor Agreement), in favor
of the Collateral Agent for the benefit of the Holders, perfected to the extent
contemplated by the applicable Security Documents and immediately junior in
priority (subject to Permitted Collateral Liens) to any and all security
interests at any time granted in the Collateral to secure the Priority Lien
Obligations and equal in priority (subject to Permitted Collateral Liens) with
any Other Pari Passu Lien Obligations.
SECTION 11.02. Recording and Opinions. (a) The Company and the
Subsidiary Guarantors shall furnish to the Collateral Agent and the Trustee (if
it is not itself then the Collateral Agent) on or before December 15 in each
year beginning with December 15, 2004, an Opinion of Counsel, dated as of such
date, meeting the requirements of TIA Section 314(b)(2).
(b) The Company shall otherwise comply with the
provisions of TIA Sections 314(b) and 314(d).
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SECTION 11.03. Release of Collateral. (a) Subject to
subsections (b) and (c) of this Section 11.03, whether prior to or after the
Discharge of Priority Lien Obligations, Collateral shall be released from the
Lien and security interest created by the Security Documents at any time or from
time to time in accordance with the provisions hereof or of the Security
Documents or the Intercreditor Agreement. Upon the request of the Company
pursuant to an Officers' Certificate or an Opinion of Counsel to the effect that
all conditions precedent hereunder have been met, the Company and the Subsidiary
Guarantors shall be entitled to a release of any assets included in the
Collateral from the Liens created by the Security Documents, and the Collateral
Agent and the Trustee (if it is not itself then the Collateral Agent) shall
release such Collateral from such Liens at the Company's sole cost and expense,
under any one or more of the following circumstances:
(i) if all other Liens (other than Permitted Collateral Liens
described in clause (d) or (f) of the definition thereof) on that asset
securing Priority Lien Obligations and any Other Pari Passu Lien
Obligations then secured by that asset (including all commitments
thereunder) are released; provided, however, that after giving effect
to the release, at least $100.0 million of obligations secured by
Priority Liens on the remaining Collateral remain outstanding or
committed and no Default or Event of Default shall have occurred and be
continuing under this Indenture as of the time of such proposed
release;
(ii) to enable the Company or any Subsidiary Guarantor to
consummate sales, transfers, leases or other dispositions of assets (to
a Person who is not the Company or a Restricted Subsidiary, or, in the
case of the sale of accounts receivable or inventory in a
Securitization, to any Securitization Vehicle whether or not it is a
Restricted Subsidiary), including any such transactions by the Credit
Facilities Collateral Agent in connection with an exercise of remedies
against the Collateral on behalf of holders of any Priority Lien
Obligations secured by such Collateral;
(iii) if the Company or any Subsidiary Guarantor provides
substitute collateral with at least an equivalent fair value, as
determined in good faith by the Board of Directors;
(iv) if all of the Capital Stock of any Subsidiary of the
Company that is pledged to the Collateral Agent is released (except in
the case of a release because such Capital Stock has become part of the
Excluded Securities) or if any Subsidiary that is a Subsidiary
Guarantor is released from its Subsidiary Guarantee, that Subsidiary's
assets shall also be released;
(v) pursuant to an amendment or waiver in accordance with
Article IX;
(vi) upon payment in full of the principal of, and accrued and
unpaid interest on, the Securities and all other obligations under this
Indenture, the Subsidiary Guarantees, the Security Documents and the
Intercreditor Agreement that are due and payable at or prior to the
time such principal and accrued and unpaid interest are paid;
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(vii) upon a satisfaction and discharge of this Indenture as
described in Article VIII;
(viii) at the election of the Company, after the Fall-Away
Date; or
(ix) upon a legal defeasance or covenant defeasance pursuant
to Article VIII.
Subject to the provisions of Section 11.03(b) below, upon
receipt of any necessary or proper instruments of termination, satisfaction or
release prepared by the Company, the Collateral Agent shall, at the Company's
expense, execute, deliver or acknowledge such instruments to evidence the
release of any Collateral required or permitted to be released pursuant to this
Indenture, the Security Documents or the Intercreditor Agreement.
(b) Except as otherwise provided in the Intercreditor
Agreement, no Collateral may be released from the Lien and security interest
created by the Security Documents unless the Officers' Certificate or Opinion of
Counsel required by this Section 11.03, dated not more than 30 days prior to the
date of the application for such release, has been delivered to the Collateral
Agent and the Trustee (if it is not itself then the Collateral Agent).
(c) At any time when an Event of Default has occurred and is
continuing and the maturity of the Securities has been accelerated (whether by
declaration or otherwise) and the Trustee (if it is not itself then the
Collateral Agent) has delivered a notice of acceleration to the Collateral
Agent, no release of Collateral pursuant to the provisions of this Indenture or
the Security Documents will be effective as against the Holders, except as
otherwise provided in the Intercreditor Agreement.
SECTION 11.04. Permitted Releases Not to Impair Lien; Trust
Indenture Act Requirements. The release of any Collateral from the terms hereof
and of the Security Documents or the release of, in whole or in part, the Liens
created by the Security Documents, will not be deemed to impair the Lien on the
Collateral in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the applicable Security Documents
or the Intercreditor Agreement or pursuant to the terms of this Article XI. The
Trustee and each of the Holders acknowledge that a release of Collateral or a
Lien strictly in accordance with the terms of the Security Documents or the
Intercreditor Agreement or of this Article XI will not be deemed for any purpose
to be an impairment of the Lien on the Collateral in contravention of the terms
of this Indenture. To the extent applicable, the Company will cause TIA Section
314(d), relating to the release of property or securities or relating to the
substitution therefor of any property or securities to be subjected to the Lien
of the Security Documents, to be complied with. Any certificate or opinion
required by TIA Section 314(d) may be made by an Officer of the Company except
in cases where TIA Section 314(d) requires that such certificate or opinion be
made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or reasonably satisfactory to the Collateral
Agent. Notwithstanding anything to the contrary in this
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paragraph or in Section 11.02(b) or 11.05 hereof, the Company will not be
required to comply with all or any portion of TIA Section 314(d) if it
determines, in good faith based on advice of counsel, that the terms of TIA
Section 314(d) or any interpretation or guidance as to the meaning thereof of
the SEC and its staff, including "no action" letters or exemptive orders,
whether or not issued to the Company by the SEC, or any portion of TIA Section
314(d) is inapplicable to one or a series of released Collateral.
SECTION 11.05. Certificates of the Trustee. In the event that
the Company elects to release Collateral in accordance with this Indenture or
the Security Documents at a time when the Trustee is not itself also the
Collateral Agent and the Company has delivered the certificates and documents
required by the Security Documents and Section 11.03 hereof, the Trustee shall
determine whether it has received all documentation required by TIA Section
314(d) in connection with such release and, based on such determination, shall
deliver a certificate to the Collateral Agent setting forth such determination.
SECTION 11.06. Suits To Protect the Collateral. Subject to the
provisions of Article VII hereof and the Intercreditor Agreement, the Trustee in
its sole discretion and without the consent of the Holders, on behalf of the
Holders, may or may direct the Collateral Agent to take all actions it deems
necessary or appropriate in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect
of the Securities or the Subsidiary Guarantees thereunder.
Subject to the provisions of the Security Documents and the
Intercreditor Agreement, the Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of any of the Security Documents or this Indenture, and such suits and
proceedings as the Trustee, in its sole discretion, may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the Lien on the Collateral or be prejudicial to the interests of
the Holders or the Trustee under the Security Documents or this Indenture).
SECTION 11.07. Authorization of Receipt of Funds by the
Trustee Under the Security Documents. Subject to the provisions of the
Intercreditor Agreement and any Other Intercreditor Agreements, the Trustee is
authorized to receive any funds for the benefit of the Holders distributed under
the Security Documents, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture.
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SECTION 11.08. Collateral Agent. (a) The Trustee shall
initially act as Collateral Agent and shall be authorized to appoint
co-Collateral Agents as necessary in its sole discretion. Except as otherwise
explicitly provided herein, in the Security Documents or the Intercreditor
Agreement, neither the Collateral Agent nor any of its respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any other Person or to take any other action whatsoever with regard
to the Collateral or any part thereof. The Collateral Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither the Collateral Agent nor any of its officers, directors,
employees or agents shall be responsible for any act or failure to act hereunder
or under the Security Documents, except for its own willful misconduct,
negligence or bad faith.
(b) The Trustee, as Collateral Agent, is authorized and
directed to (i) enter into the Security Documents, (ii) enter into the
Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the
Security Documents and the Intercreditor Agreement and (iv) perform and observe
its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company or any Restricted Subsidiary (i) Incurs
Priority Lien Obligations at any time when no Intercreditor Agreement is in
effect or at any time when Indebtedness constituting Priority Lien Obligations
entitled to the benefit of an existing Intercreditor Agreement is concurrently
retired, and (ii) delivers to the Collateral Agent an Officers' Certificate so
stating and requesting the Collateral Agent to enter into an Intercreditor
Agreement in favor of a designated agent or representative for the holders of
the Indebtedness so Incurred, the Collateral Agent shall (and is hereby
authorized and directed to) enter into such Intercreditor Agreement, bind the
Holders on the terms set forth therein, and perform and observe its obligations
thereunder.
(d) The Company or any Restricted Subsidiary may from time to
time, subject to the limitations contained in this Indenture, designate
additional obligations that are, or are to be, secured by Liens on the
Collateral as Other Pari Passu Lien Obligations by delivering to the Collateral
Agent, the Trustee and each Representative of holders of Other Pari Passu Lien
Obligations an Officer's Certificate:
(i) describing the obligations being designated as Other Pari
Passu Lien Obligations, and including a statement of the maximum
aggregate outstanding principal amount of such obligations;
(ii) listing any Other Pari Passu Lien Obligations Documents
under which such Other Pari Passu Lien Obligations are issued or
incurred and the security documents securing such Other Pari Passu Lien
Obligations, and attaching copies of such Other Pari Passu Lien
Obligations Documents and security documents;
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(iii) appointing the Collateral Agent as collateral agent with
respect to such Other Pari Passu Lien Obligations, and identifying any
Representative of the holders of such Other Pari Passu Lien
Obligations;
(iv) certifying that the incurrence of such Other Pari Passu
Lien Obligations, the creation of the Liens securing such Other Pari
Passu Lien Obligations and the designation of such Other Pari Passu
Lien Obligations as Other Pari Passu Lien Obligations hereunder do not
violate this Indenture; and
(v) requesting the Collateral Agent to enter into an
intercreditor agreement with and for the benefit of the holders of such
Other Pari Passu Lien Obligations providing for the matters set forth
in Section 11.08(e), (which agreement shall contain terms no less
favorable, to the extent applicable, to the Holders than the terms of
the Intercreditor Agreement referred to in clause (a) of the definition
thereof) and otherwise in form and substance reasonably satisfactory to
the Collateral Agent.
Notwithstanding any other provision contained in this Section
11.08(d) or elsewhere in this Agreement, no obligation shall constitute Other
Pari Passu Lien Obligations if the incurrence of such obligation, the creation
of the Liens securing such obligation or the designation of such obligation as
Other Pari Passu Lien Obligations hereunder would violate or result in a default
under this Indenture.
(e) Upon receipt of an Officer's Certificate specified in
Section 11.08(d) requesting it to enter into an intercreditor agreement, the
Collateral Agent shall (and is hereby authorized and directed to) enter into
such intercreditor agreement, bind the Holders on the terms set forth therein,
and perform and observe its obligations thereunder. Such intercreditor agreement
shall provide that (x) notwithstanding the time, order or method of creation,
attachment or perfection of such Liens, the Liens on the Collateral securing the
Other Pari Passu Lien Obligations and the Liens on the Collateral securing the
Securities and the Subsidiary Guarantees shall rank pari passu (except to the
extent such Liens are not then perfected, are voidable as a preference under the
United States Bankruptcy Code or are held by a court of competent jurisdiction
to be unenforceable); (y) the Collateral Agent, in accordance with the
provisions of the Indenture and the Security Documents, will determine the time
and method by which all such Liens will be concurrently enforced (unless the
Liens on all of the Collateral under the Security Documents have been
theretofore released pursuant to Section 11.03 or 11.11 hereof); and (z) upon
foreclosure, sale or other disposition in liquidation of all or any part of the
Collateral, the holders of the Other Pari Passu Lien Obligations and the Holders
shall share in the resulting income pertaining thereto and the proceeds thereof
(after payment of all costs and expenses incurred by the Trustee or the
Collateral Agent in connection with the collection of proceeds or sale of any
Collateral or otherwise in connection with this Indenture, the Security
Documents and the Intercreditor Agreement, including all court costs and the
fees and expenses of their agents and legal counsel, the repayment of all
advances made by the Trustee or the Collateral Agent on behalf of the Company or
any Subsidiary Guarantor and any other costs or expenses incurred in connection
with the exercise of any rights or remedy of the Holders or the holders of the
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Other Pari Passu Lien Obligations) pro rata based on the respective amounts of
the Guaranteed Obligations and the Other Pari Passu Lien Obligations then
outstanding held thereby.
SECTION 11.09. Designations. Except as provided in the next
sentence, for purposes of the provisions hereof and the Intercreditor Agreement
requiring the Company to designate Indebtedness for the purposes of the term
"Priority Lien Obligation", "Other Pari Passu Lien Obligation" or any other such
designations hereunder or under the Intercreditor Agreement, any such
designation shall be sufficient if the relevant designation is set forth in
writing, signed on behalf of the Company by an Officer and delivered to the
Trustee, the Collateral Agent and the Credit Facilities Collateral Agent. For
all purposes hereof and the Intercreditor Agreement, the Company hereby
designates the Bank Indebtedness as in effect on the Closing Date as "Priority
Lien Obligations".
SECTION 11.10. Further Assurances. (a) Upon request of the
Trustee at any time and from time to time, the Company shall, and shall cause
each of the Subsidiary Guarantors to, promptly execute, acknowledge and deliver
such Security Documents, financing statements, instruments, certificates,
notices and other documents and take such other actions which the Trustee may
reasonably request to cause the security interests purported to be created by
the Security Documents or required to be created under the terms of this
Indenture to constitute valid security interests, perfected in accordance with
this Indenture, and to protect, assure or enforce the Liens and benefits
intended to be conferred as contemplated by this Indenture, in each case for the
benefit of the Holders.
(b) In the event that the Company or any Subsidiary Guarantor
shall at any time directly own any Capital Stock of Land O'Lakes Farmland Feed
LLC or any wholly owned Restricted Subsidiary of the Company or Land O'Lakes
Farmland Feed LLC (other than (i) Capital Stock of any such Subsidiary with
Consolidated assets not greater than $1.0 million as of the end of the most
recent fiscal quarter for which consolidated financial statements of the Company
have been filed with the SEC and (ii) Capital Stock as to which the actions
required by this Section 11.10(b) have already been taken), the Company shall
promptly notify the Trustee and shall, within 30 days (or such longer period as
may be reasonable under the circumstances) after such notification, cause such
Capital Stock to be pledged under the Security Documents and cause to be
delivered to the Collateral Agent (or the Credit Facilities Collateral Agent or
any other Senior Collateral Agent (as defined in the Intercreditor Agreement)
acting on behalf of the Collateral Agent pursuant to the Intercreditor
Agreement) any certificates representing such Capital Stock, together with
undated stock powers or other instruments of transfer with respect thereto
endorsed in blank; provided, however, that neither the Company nor any
Subsidiary Guarantor shall be required to pledge more than 65% of the
outstanding Voting Stock of any Foreign Subsidiary or to pledge any Capital
Stock of a Securitization Vehicle; and provided further, however, that neither
the Company nor any Subsidiary Guarantor shall be required to pledge any
Excluded Securities.
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(c) In the event that the Company or any Subsidiary Guarantor
shall at any time directly own any Capital Stock of any Material Foreign
Subsidiary (other than Capital Stock as to which the actions required by this
Section 11.10(c) have already been taken), the Company shall promptly notify the
Trustee and will take all such actions as the Trustee shall reasonably request
and as shall be available under applicable law to cause such Capital Stock to be
pledged under a Foreign Pledge Agreement and cause to be delivered to the
Collateral Agent (or the Credit Facilities Collateral Agent or any other Senior
Collateral Agent acting on behalf of the Collateral Agent pursuant to the
Intercreditor Agreement) any certificates representing such Capital Stock,
together with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank; provided, however, that neither the Company nor any
Subsidiary Guarantor shall be required to pledge more than 65% of the
outstanding Voting Stock of any Foreign Subsidiary or to pledge any Capital
Stock of a Securitization Vehicle; and provided further, however, that neither
the Company nor any Subsidiary Guarantor shall be required to pledge any
Excluded Securities.
(d) In the event that the Company or any Subsidiary Guarantor
shall at any time own any Material Intellectual Property (other than Material
Intellectual Property as to which the actions required by this paragraph have
already been taken), the Company shall promptly notify the Trustee and will file
all Uniform Commercial Code financing statements and recordations with the
United States Patent and Trademark Office as shall be required by law or
reasonably requested by the Trustee to be filed or recorded to perfect the Liens
intended to be created on the Collateral (to the extent such Liens may be
perfected by filings under the Uniform Commercial Code as in effect in any
applicable jurisdiction or by filings with the United States Patent and
Trademark Office); provided, that if the consents of Persons other than the
Company and the Wholly Owned Subsidiaries would be required under applicable law
or the terms of any agreement in order for a security interest to be created in
any Material Intellectual Property under the Security Documents, a security
interest shall not be required to be created in such Material Intellectual
Property prior to the obtaining of such consents. The Company shall endeavor in
good faith to obtain any consents required to permit any security interest in
Material Intellectual Property to be created under the Security Documents.
SECTION 11.11. Termination of Security Interest. The Trustee
will, at the request of the Company, deliver a certificate to the Collateral
Agent stating that the Securities and Subsidiary Guarantees have been paid in
full, and instruct the Collateral Agent to release the Liens pursuant to this
Indenture and the Security Documents upon (a) payment in full of the principal
of, and accrued and unpaid interest on, the Securities and all other obligations
under this Indenture, the Subsidiary Guarantees and the Security Documents that
are due and payable at or prior to the time such principal and accrued and
unpaid interest are paid, (b) a satisfaction and discharge of this Indenture as
described in Article VIII or (c) a legal defeasance or covenant defeasance as
described in Article VIII. Upon receipt of such instruction and any necessary or
proper instruments of termination, satisfaction or release prepared by the
Company, the Collateral Agent shall execute, deliver or acknowledge any such
instruments or releases to evidence the release of all such Liens.
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SECTION 11.12. Excluded Securities. Notwithstanding anything
to the contrary provided in this Indenture (including without limitation
Sections 4.15 and 11.10 hereof) or any of the Security Documents, (a) the
Collateral shall at no time include any Capital Stock or other securities of any
Subsidiary of the Company that constitute Excluded Securities, and (b) any
portion of the Excluded Securities may continue to secure any Priority Lien
Obligations and Other Pari Passu Lien Obligations. The Security Documents may be
amended or modified, without the consent of any Holder, from time to time to the
extent necessary to release the Liens on any Excluded Securities.
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
SECTION 12.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Land O'Lakes, Inc.
4001 Lexington Avenue North
Arden Hills, MN 55126
Attention of: Daniel E. Knutson
with a copy to:
Land O'Lakes, Inc.
4001 Lexington Avenue North
Arden Hills, MN 55126
Attention of: John Rebane
if to the Trustee or the Collateral Agent:
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Attention of: Corporate Trust Administration
The Company, the Trustee or the Collateral Agent by notice to
the other may designate additional or different addresses for subsequent notices
or communications.
84
Any notice or communication mailed to a Holder shall be
mailed, first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA.
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company, upon the
reasonable request of the Trustee, shall furnish to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with, including a brief statement as to
the nature and scope of such examination or investigation; and
(c) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 12.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under
85
direct or indirect common control with the Company or any Subsidiary Guarantor
shall be disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 12.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company or any of the
Subsidiary Guarantors, shall not have any liability for any obligations of the
Company or any of the Subsidiary Guarantors under the Securities, this
Indenture, the Subsidiary Guarantees or the Security Documents or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder shall waive and release all such liability.
The waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 12.11. Successors. All agreements of the Company and
each Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 12.13. Table of Contents; Headings. 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
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
86
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LAND O'LAKES, INC.,
by
____________________________________
Name:
Title:
87
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
ACS STORES, LLC,
by
____________________________________
Name:
Title:
88
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
ADVANCED BUSINESS CONCEPTS INTERNATIONAL,
LLC,
by
____________________________________
Name:
Title:
89
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
AG2AG, LLC,
by
____________________________________
Name:
Title:
90
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
AGRICULTURAL INDEMNITY INSURANCE COMPANY,
by
____________________________________
Name:
Title:
91
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
ALLIANCE MILK PRODUCTS, LLC,
by
____________________________________
Name:
Title:
92
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
AMERICA'S COUNTRY STORES HOLDINGS, LLC,
by
____________________________________
Name:
Title:
93
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
AMERICA'S COUNTRY STORES, LLC,
by
____________________________________
Name:
Title:
94
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
DIAMOND CROSS, LLC,
by
____________________________________
Name:
Title:
95
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
FMR, INC.,
by
____________________________________
Name:
Title:
96
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
FORAGE GENETICS, INC.,
by
____________________________________
Name:
Title:
97
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
GOLDEN STATE FEEDS, LLC,
by
____________________________________
Name:
Title:
98
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
GOLDEN VALLEY DAIRY PRODUCTS,
by
____________________________________
Name:
Title:
99
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
L.L. OLDS SEED COMPANY, by
by
____________________________________
Name:
Title:
100
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LAND O'LAKES FARMLAND FEED LLC,
by
____________________________________
Name:
Title:
101
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LAND O'LAKES HOLDINGS, INC.,
by
____________________________________
Name:
Title:
102
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LAND O'LAKES INTERNATIONAL DEVELOPMENT
CORPORATION,
by
____________________________________
Name:
Title:
103
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LOL HOLDINGS II, INC.,
by
____________________________________
Name:
Title:
104
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LOL POWER, LLC,
by
____________________________________
Name:
Title:
105
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
MILK PRODUCTS, LLC,
by
____________________________________
Name:
Title:
106
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NORTH COAST FERTILIZER II, INC.,
by
____________________________________
Name:
Title:
107
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NORTHWEST FOOD PRODUCTS COMPANY, INC.,
by
____________________________________
Name:
Title:
108
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NORTHWEST FOOD PRODUCTS TRANSPORTATION,
LLC,
by
____________________________________
Name:
Title:
109
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NUTRA-BLEND, LLC,
by
____________________________________
Name:
Title:
110
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
PMI NUTRITION, LLC,
by
____________________________________
Name:
Title:
111
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
PMI AGRICULTURE, L.L.C.,
by
____________________________________
Name:
Title:
112
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
PMI NUTRITION INTERNATIONAL, LLC,
by
____________________________________
Name:
Title:
113
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
PURINA MILLS, LLC,
by
____________________________________
Name:
Title:
114
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
QC, INC.,
by
____________________________________
Name:
Title:
115
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
QC HOLDINGS INC.,
by
____________________________________
Name:
Title:
116
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
QC INDUSTRIES, INC.,
by
____________________________________
Name:
Title:
117
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
REALTY LOL, INC.,
by
____________________________________
Name:
Title:
118
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
RESEARCH SEEDS, INC.,
by
____________________________________
Name:
Title:
119
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
SEED RESEARCH, INC.,
by
____________________________________
Name:
Title:
120
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
THOMAS PRODUCTS, LLC,
by
____________________________________
Name:
Title:
121
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
U.S. BANK National Association, as Trustee
by
____________________________________
Name:
Title:
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix A the following terms shall
have the meanings indicated below:
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means J.P. Morgan Securities Inc.
"Purchase Agreement" means the Purchase Agreement dated
December 12, 2003, among the Company, the Subsidiary Guarantors and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means an offer by the Company,
pursuant to a the Registration Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for their Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Agreement" means (a) the Registration Rights
Agreement dated December 23, 2003, among the Company, the Subsidiary Guarantors
and the Initial Purchasers and (b) any other similar Registration Rights
Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
2
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (a) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Company to
the Trustee, and (b) the Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Company in connection with the offer and sale of Initial Securities
pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.2 Other Definitions.
Term: Defined in Section:
---- -------------------
"Agent Members"................................................................. 2.1(c)
"Global Security"............................................................... 2.1(b)
"IAI Global Security"........................................................... 2.1(b)
"Regulation S Certificate"...................................................... 2.1(b)
"Regulation S Global Security".................................................. 2.1(b)
"Regulation S Permanent Global Security"........................................ 2.1(b)
"Regulation S Temporary Security"............................................... 2.1(b)
"Rule 144A Global Security"..................................................... 2.1(b)
2. The Securities.
2.1 Form and Dating. (a) The Initial Securities issued on the
date hereof will be (i) offered and sold by the Company pursuant to a Purchase
Agreement and (ii)
3
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Company from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") without
interest coupons and bearing the Global Securities Legend and Restricted
Securities Legend, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Securities Custodian, and registered in
the name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
Regulation S Global Securities shall be issued initially in the form of one or
more temporary Global Securities (the "Regulation S Temporary Global
Securities") without interest coupons and bearing the Global Securities Legend
and the Restricted Securities Legend and registered in the name of the
Depositary or a nominee of the Depositary. Beneficial interests in a Regulation
S Temporary Global Security will be exchangeable for beneficial interests in a
single permanent Global Security (the "Regulation S Permanent Global Security",
together with the Regulation S Temporary Global Security, the "Regulation S
Global Securities") on or after the expiration of the Restricted Period upon the
receipt by the Trustee or its agent of a certificate certifying that the Holder
of the beneficial interest in the Regulation S Temporary Global Security is a
non-United States Person within the meaning of Regulation S or by United States
persons who purchased those interests pursuant to an exemption from, or in
transactions not subject to, the registration requirements of the Securities Act
(a "Regulation S Certificate"), substantially in the form set forth in Exhibit D
hereto. One or more Global Securities in definitive, fully registered form
without interest coupons and bearing the Global Securities Legend and the
Restricted Securities Legend (collectively, the "IAI Global Security") shall
also be issued on the Closing Date, deposited with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as provided in this
Indenture to accommodate transfers of beneficial interests in the Securities to
IAIs subsequent to the initial distribution. Beneficial ownership interests in
the Regulation S Global Security shall be transferred only to non-United States
persons under Regulation S, qualified institutional buyers under Rule 144A or
institutional accredited investors. The Rule 144A Global Security, the IAI
Global Security and the Regulation S Global Securities are each referred to
herein as a "Global Security" and are collectively referred to herein as "Global
Securities"; provided that the term "Global Security" when used in Sections
2.1(b), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include any Security in
global form issued in connection with a Registered Exchange Offer. The aggregate
principal amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee and on the schedules thereto as hereinafter provided.
4
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by two Officers, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(d) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by two
Officers (a) Original Securities for original issue on the date hereof in an
aggregate principal amount of $175,000,000, (b) subject to the terms of this
Indenture, Additional Securities in an unlimited aggregate principal amount and
(c) the Exchange Securities for issue only in a Registered Exchange Offer
pursuant to a Registration Agreement and for a like principal amount of Initial
Securities exchanged pursuant thereto. Such order shall specify the amount of
the Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
outstanding at any time is unlimited.
2.3 Transfer and Exchange. (a) Transfer and Exchange of
Definitive Securities. When Definitive Securities are presented to the Registrar
with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
5
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse
side of the Initial Security); or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (x) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit E or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase,
6
then the Trustee shall cancel such Definitive Security and cause, or
direct the Securities Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased by the
aggregate principal amount of the Definitive Security to be exchanged
and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Definitive Security so
canceled. If no Global Securities are then outstanding and the Global
Security has not been previously exchanged for certificated securities
pursuant to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the IAI
Global Security to a transferee who takes delivery of such interest through the
Regulation S Global Security, whether before or after the expiration of the
Restricted Period, shall be made only upon receipt by the Trustee of a
certification in the form provided on the reverse of the Initial Securities from
the transferor to the effect that such transfer is being made in accordance with
Regulation S or (if available) Rule 144 under the Securities Act. In the case of
a transfer of a beneficial interest in either the Regulation S Global Security
or the Rule 144A Global Security for an interest in the IAI Global Security, the
transferee must furnish a signed letter substantially in the form of Exhibit D
to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such interest
is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of Global Security
from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security may not
be transferred as a whole except 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 or by the Depositary
7
or any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration Statement
with respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of this Section 2.3 (including the certification requirements set
forth on the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable exemption
from registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(d) Restrictions on Transfer of Regulation S Global Security.
(i) During the Restricted Period, beneficial ownership interests in the
Regulation S Temporary Global Security may only be sold, pledged or transferred
only (1) to the Company, (2) so long as such security is eligible for resale
pursuant to Rule 144A, to a person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI purchasing for
its own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Global Security to a transferee who takes delivery
of such interest through the Rule 144A Global Security or the IAI Global
Security shall be made only upon receipt by the Trustee of a written
certification from the transferor of the beneficial interest in the form
provided on the reverse of the Initial Security to the effect that such transfer
is being made to (1) a QIB within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A or (2) an IAI purchasing for its own
account, or for the account of such an IAI, in a minimum principal amount of the
Securities of $250,000. Such written certification shall no longer be required
after the expiration of the Restricted Period. In the case of a transfer of a
beneficial interest in the Regulation S Global Security for an interest in the
IAI Global Security, the transferee must furnish a signed letter substantially
in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Temporary Global Security shall be
exchangeable for beneficial interests in the Regulation S Permanent Global
Security upon certification that those interests are owned either by non-United
States persons or by United States persons who purchased those interests
pursuant to an exemption from, or in transactions not subject to the
registration requirements of the Securities Act of 1933. The Regulation S
Permanent Global Security shall be transferable in accordance with applicable
law and the other terms of this Indenture.
8
(e) Legend. (i) Except as permitted by the following
paragraphs (ii), (iii) or (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially the
following form (each defined term in the legend being defined as such for
purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, AGREES
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS [IN THE CASE OF
RULE 144A SECURITIES: TWO YEARS] [IN THE CASE OF REGULATION S SECURITIES: 40
DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE
9
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Definitive Security shall bear the following additional
legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legends set forth above and rescind any restriction on
the transfer of such Transfer Restricted Security if the Holder certifies in
writing to the Registrar that its request for such exchange was made in reliance
on Rule 144 (such certification to be in the form set forth on the reverse of
the Initial Security).
(iii) After a transfer of any Original or Additional
Securities during the period of the effectiveness of a Shelf Registration
Statement with respect to such Original or Additional Securities, as the case
may be, all requirements pertaining to the Restricted Securities Legend on such
Original or Additional Securities shall cease to apply and the requirements that
any such Original or Additional Securities be issued in global form shall
continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which Holders of
such Original or Additional Securities are offered Exchange Securities in
exchange for their Original or Additional Securities, all requirements
pertaining to Original or Additional Securities that Original or Additional
Securities be issued in global form shall continue to apply, and Exchange
Securities in global form without the Restricted Securities Legend shall be
available to Holders that exchange such Initial Securities in such Registered
Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to Regulation S, all
requirements that such Initial Security bear the Restricted Securities Legend
shall cease to apply and the requirements requiring any such Initial Security be
issued in global form shall continue to apply.
(vi) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be
10
returned by the Depositary to the Trustee for cancelation or retained and
canceled by the Trustee. At any time prior to such cancelation, if any
beneficial interest in a Global Security is exchanged for Definitive Securities,
transferred in exchange for an interest in another Global Security, redeemed,
repurchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Securities and
Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchanges pursuant to Sections 2.07, 3.06,
4.06, 4.08 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice to
the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depositary or any other Person with respect
to the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption or repurchase) or the payment of any amount,
under or with respect to such Securities. All notices and communications to be
given to the Holders and all payments to be made to Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
11
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
2.4 Definitive Securities. (a) A Global Security deposited
with the Depositary or with the Trustee as Securities Custodian pursuant to
Section 2.1 or issued in connection with a Registered Exchange Offer shall be
transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 90 days of such notice or after the Company becomes aware
of such cessation, or (ii) an Event of Default has occurred and is continuing or
(iii) the Company, in its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a
12
reasonable supply of Definitive Securities in fully registered form without
interest coupons.
EXHIBIT A
[FORM OF FACE OF ORIGINAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, AGREES
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS [IN THE CASE OF
RULE 144A SECURITIES: TWO YEARS] [IN THE CASE OF REGULATION S SECURITIES: 40
DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR
2
ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER PRIOR TO THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(c)(3) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED (I) TO THE COMPANY, (II) IN THE UNITED
STATES TO A
3
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE REFERRED TO
ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE TEMPORARY REGULATION S
GLOBAL SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE TEMPORARY REGULATION S
GLOBAL SECURITY IS BEING TRANSFERRED TO A PERSON (A) WHOM THE TRANSFEROR
REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, (B) PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND
(C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTEREST IN A RULE 144A GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO
THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904
OF REGULATION S OR RULE 144 (IF AVAILABLE).
Each Definitive Security shall bear the following additional
legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
No. $__________
9% Senior Secured Note due 2010
CUSIP No. ______
ISIN No._
LAND O'LAKES, INC., a Minnesota cooperative corporation,
promises to pay to [Cede & Co.], or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto] on December 15, 2010.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LAND O'LAKES, INC.
by
_______________________________________
Name:
Title:
by
_______________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by: ________________________________
Authorized Signatory
- ----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF ORIGINAL SECURITY]
9% Senior Secured Note due 2010
1. Interest. (a) LAND O'LAKES, INC., a Minnesota cooperative
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Company shall pay interest semiannually on June 15 and December
15 of each year. Interest on the Securities shall accrue from the most recent
date to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for, from December 23, 2003, until the principal
hereof is due. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
(b) Additional Interest. The Holder of this Security is
entitled to the benefits of Registration Rights Agreement, dated as of December
23, 2003, among the Company, the Subsidiary Guarantors and the Initial
Purchasers named therein (the "Registration Agreement"). Capitalized terms used
in this paragraph (b) but not defined herein have the meanings assigned to them
in the Registration Agreement. If the Exchange Offer is not completed or a Shelf
Registration Statement is not declared effective on or before the date that is
225 days after December 23, 2003, the annual interest rate borne by the
Securities will be increased by 0.25% per annum with an additional 0.25% per
annum increase each 90 days thereafter up to a maximum increase of 1.0% per
annum until the Exchange Offer is completed or the Shelf Registration Statement
is declared effective.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
at the close of business on the June 1 or December 1 next preceding the interest
payment date even if the Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender the Securities to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, if any, 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.
Payments in respect of the Securities represented by a Global Security
(including principal, premium, if any, and interest) shall be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depositary. The Company will make all
payments in respect of a certificated Security (including principal, premium, if
any, and interest), at the office of the Paying Agent, except that, at the
option of the Company, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on
the Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately
2
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar. Initially, U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Securities under an
Indenture dated as of December 23, 2003 (the "Indenture"), among the Company,
the Subsidiary Guarantors and the Trustee. The terms of the Securities 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.C. Sections 77aaa-77bbbb) as in
effect on the date of the Indenture (the "TIA"). Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all terms and provisions of the Indenture, and Holders
(as defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions.
The Securities are senior secured obligations of the Company.
This Security is one of the [Original] [Additional] Securities referred to in
the Indenture. The Securities include the Original Securities, the Additional
Securities and any Exchange Securities issued in exchange for Initial Securities
pursuant to the Indenture. The Original Securities, the Additional Securities
and any Exchange Securities and Private Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make asset sales. The Indenture also
imposes limitations on the ability of the Company and each Subsidiary Guarantor
to consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all its property.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have jointly and
severally unconditionally guaranteed the Guaranteed Obligations on a senior
basis pursuant to the terms of the Indenture.
The Securities and the Subsidiary Guarantees are secured on a
second-priority basis (subject to Permitted Collateral Liens) by the Liens
created by the Security Documents pursuant to, and subject to, the terms of the
Indenture and the Intercreditor Agreement.
3
5. Optional Redemption. Except as set forth in the following
paragraph, the Securities shall not be redeemable at the option of the Company
prior to December 15, 2007. On or after this date, the Securities shall be
redeemable at the option of the Company, in whole or from time to time in part,
on not less than 30 nor more than 60 days prior notice, at the following
redemption prices (expressed as percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
December 15 of the years set forth below:
REDEMPTION
YEAR PRICE
- ---- -----
2007...................................................................... 104.500%
2008...................................................................... 102.250%
2009 and thereafter....................................................... 100.000%
6. Sinking Fund. The Securities are not subject to any sinking
fund.
7. Notice of Redemption. Notice of redemption will be mailed
by first-class mail at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon
Change of Control and Asset Dispositions. Upon a Change of Control, any Holder
of Securities will have the right, subject to certain conditions specified in
the Indenture, to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price equal to 101% of the principal
amount of the Securities to be repurchased plus accrued and unpaid interest to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other
4
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners. Except as provided in paragraph 2
hereof, the registered Holder of this Security may be treated as the owner of it
for all purposes.
11. Unclaimed Money. If money for the payment principal,
premium or interest remains unclaimed for two years, the Trustee and the Paying
Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look to the Company for payment as general
creditors and the Trustee and the Paying Agent shall have no further liability
with respect to such monies.
12. Discharge and Defeasance. Subject to certain conditions,
the Company at any time may terminate some of or all its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of, and premium (if
any) and interest on, the Securities to redemption or maturity, as the case may
be.
13. Amendment, Waiver. Subject to certain exceptions set forth
in the Indenture, (i) the Indenture, the Securities, the Subsidiary Guarantees,
the Security Documents and the Intercreditor Agreement may be amended without
prior notice to any Holder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities and
(ii) any default may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article V of the Indenture; (iii) to provide
for uncertificated Securities in addition to or in place of certificated
Securities; (iv) to add Subsidiary Guarantees with respect to the Securities;
(v) to provide for the addition or release of Collateral permitted under the
terms of the Indenture or the Security Documents; (vi) to add additional
covenants or to surrender rights and powers conferred on the Company; (vii) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any change that
does not adversely affect the rights of any Holder; or (ix) to provide for the
issuance of the Exchange Securities or Additional Securities. In addition,
without the consent of any Holder (or the consent of, or any other action by,
the Trustee or the Collateral Agent), any amendment, waiver or consent agreed to
by the Credit Facilities Collateral Agent or the holders of Priority Lien
Obligations under any provision of any security documents granting any Priority
Lien on any Collateral to secure the Priority Lien Obligations will
automatically apply to the comparable provisions of the comparable Security
Document securing the Securities and the Subsidiary Guarantees.
5
14. Defaults and Remedies. If an Event of Default occurs
(other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the outstanding Securities
may declare the principal of and accrued but unpaid interest on all the
Securities to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs, the
principal of and interest on all the Securities shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances, the Holders of a majority in principal
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities are given the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee Dealings with the Company. Subject to certain
limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to it by the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee.
16. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company or any Subsidiary Guarantor shall not
have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Securities, the Indenture, the Subsidiary Guarantees or the
Security Documents or for any
6
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
17. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP and ISIN Numbers. The Company has caused CUSIP and
ISIN numbers to be printed on the Securities and has directed the Trustee to use
CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security 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 Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
1. [ ] to the Company; or
2. [ ] to the Registrar for registration in the name of the Holder, without
transfer; or
3. [ ] pursuant to an effective registration statement under the Securities
Act of 1933; or
4. [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that purchases for
its own account or for the account of a qualified institutional buyer to
whom notice is given that such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
5. [ ] outside the United States in an offshore transaction within the meaning
of Regulation S under the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
6. [ ] to an institutional "accredited investor" (as defined in Rule 501(a)
(1), (2), (3) or (7) under the Securities Act of 1933) that has furnished
to the Trustee a signed letter containing certain representations and
agreements; or
2
7. [ ] pursuant to another available exemption from registration provided by
Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided, however, that if box (5),
(6) or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
____________________________________________
Your Signature
Signature Guarantee:
Date: ___________________________ _______________________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
________________________________________________________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ___________________________ ______________________________________
NOTICE: To be executed by an executive
officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE,
STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: _____________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE: ________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $__________
9% Senior Secured Note due 2010
CUSIP No. ______
ISIN No. _
LAND O'LAKES, INC., a Minnesota cooperative corporation,
promises to pay to [Cede & Co.], or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto] on December 15, 2010.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LAND O'LAKES, INC.
by
_______________________________________
Name:
Title:
by
_______________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by: ______________________________
Authorized Signatory
- ----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF exchange SECURITY]
9% Senior Secured Note due 2010
1. Interest. LAND O'LAKES, INC., a Minnesota cooperative
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. The Company shall pay interest semiannually on June 15 and December
15 of each year. Interest on the Securities shall accrue from the most recent
date to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for, from December 23, 2003, until the principal
hereof is due. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
at the close of business on the June 1 or December 1 next preceding the interest
payment date even if the Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender the Securities to a
Paying Agent to collect principal payments. The Company shall pay principal,
premium, if any, 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.
Payments in respect of the Securities represented by a Global Security
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Company will make all payments in
respect of a certificated Security (including principal, premium, if any, and
interest), at the office of the Paying Agent, except that, at the option of the
Company, payment of interest may be made by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on the
Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar. Initially, U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Securities under an
Indenture dated as of December 23, 2003 (the "Indenture"), among the Company,
the Subsidiary Guarantors and the Trustee. The terms of the Securities include
those stated in the
2
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior secured obligations of the Company.
This Security is one of the [Exchange] [Additional] Securities referred to in
the Indenture. The Securities include the Original Securities, the Additional
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and the Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make asset sales. The Indenture also imposes limitations on the ability of the
Company and each Subsidiary Guarantor to consolidate or merge with or into any
other Person or convey, transfer or lease all or substantially all of its
property.
To guarantee the due and punctual payment of the principal and
interest on the Securities and all other amounts payable by the Company under
the Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
basis pursuant to the terms of the Indenture.
The Securities and the Subsidiary Guarantees are secured on a
second-priority basis (subject to Permitted Collateral Liens) by the Liens
created by the Security Documents pursuant to, and subject to, the terms of the
Indenture and the Intercreditor Agreement.
5. Optional Redemption. Except as set forth in the following
paragraph, the Securities shall not be redeemable at the option of the Company
prior to December 15, 2007. On or after this date, the Securities shall be
redeemable at the option of the Company, in whole or from time to time in part,
on not less than 30 nor more than 60 days prior notice, at the following
redemption prices (expressed as percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the
3
relevant interest payment date), if redeemed during the 12-month period
commencing on December 15 of the years set forth below:
REDEMPTION
YEAR PRICE
---- -----
2007...................................................................... 104.500%
2008...................................................................... 102.250%
2009 and thereafter....................................................... 100.000%
6. Sinking Fund. The Securities are not subject to any sinking
fund.
7. Notice of Redemption. Notice of redemption will be mailed
by first-class mail at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued and unpaid interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon
Change of Control and Asset Dispositions. Upon a Change of Control, any Holder
of Securities will have the right, subject to certain conditions specified in
the Indenture, to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price equal to 101% of the principal
amount of the Securities to be repurchased plus accrued and unpaid interest to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or to transfer
or exchange any Securities for a period of 15 days prior to a selection of
Securities to be redeemed.
4
10. Persons Deemed Owners. Except as provided in paragraph 2
hereof, the registered Holder of this Security may be treated as the owner of it
for all purposes.
11. Unclaimed Money. If money for the payment of principal,
premium or interest remains unclaimed for two years, the Trustee and the Paying
Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look to the Company for payment as general
creditors and the Trustee and the Paying Agent shall have no further liability
with respect to such monies.
12. Discharge and Defeasance. Subject to certain conditions,
the Company at any time may terminate some of or all its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of, and premium (if
any) and interest on, the Securities to redemption or maturity, as the case may
be.
13. Amendment, Waiver. Subject to certain exceptions set forth
in the Indenture, (i) the Indenture, the Securities, the Subsidiary Guarantees,
the Security Documents and the Intercreditor Agreement may be amended without
prior notice to any Holder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities and
(ii) any default may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article V of the Indenture; (iii) to provide
for uncertificated Securities in addition to or in place of certificated
Securities; (iv) to add Subsidiary Guarantees with respect to the Securities;
(v) to provide for the addition or release of Collateral permitted under the
terms of the Indenture or the Security Documents; (vi) to add additional
covenants or to surrender rights and powers conferred on the Company; (vii) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any change that
does not adversely affect the rights of any Holder; or (ix) to provide for the
issuance of the Exchange Securities or Additional Securities. In addition,
without the consent of any Holder (or the consent of, or any other action by,
the Trustee or the Collateral Agent), any amendment, waiver or consent agreed to
by the Credit Facilities Collateral Agent or the holders of Priority Lien
Obligations under any provision of any security documents granting any Priority
Lien on any Collateral to secure the Priority Lien Obligations will
automatically apply to the comparable provisions of the comparable Security
Document securing the Securities and the Subsidiary Guarantees.
14. Defaults and Remedies. If an Event of Default occurs
(other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the outstanding Securities
may declare the principal of and accrued but unpaid interest on all the
Securities to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs, the
5
principal of and interest on all the Securities shall become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. Under certain circumstances, the Holders of a majority in principal
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities are given the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee Dealings with the Company. Subject to certain
limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to it by the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee.
16. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company or any Subsidiary Guarantor shall not
have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Securities, the Indenture, the Subsidiary Guarantees or the
Security Documents or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
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17. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP and ISIN Numbers. The Company has caused CUSIP and
ISIN numbers to be printed on the Securities and has directed the Trustee to use
CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security 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 Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
COMPANY PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE,
STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: __________________ YOUR SIGNATURE: _____________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE: __________________________________________________________
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized signatory
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of LAND O'LAKES, INC. (or
its successor), a Minnesota cooperative corporation
(the "Company"), [EXISTING GUARANTORS] and U.S. BANK
NATIONAL ASSOCIATION, a national banking association,
as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Company and [OLD GUARANTORS] (the "Existing
Guarantors") has heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of December 23, 2003, providing for the issuance
initially of an aggregate principal amount of $175,000,000 of 9% Senior Secured
Notes due 2010 (the "Securities");
WHEREAS Section 4.12 of the Indenture provides that under
certain circumstances the Company is required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Company's obligations
under the Securities pursuant to a Subsidiary Guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all the Existing Guarantors, to unconditionally
guarantee the Guaranteed Obligations on the terms and subject to the conditions
set forth in Article X of the Indenture and to be bound by all other applicable
provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all
2
purposes, and every holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
___________________________________________
Name:
Title:
LAND O'LAKES, INC.,
by
___________________________________________
Name:
Title:
3
[EXISTING GUARANTORS],
by
___________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Trustee,
by
___________________________________________
Name:
Title:
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S]
[Date]
Land O'Lakes, Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
Re: Land O'Lakes, Inc.
9% Senior Secured Notes Due 2010 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Securities was not made to a person in
the United States;
(b) either (1) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, (2) 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;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904
of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we
confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
2
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
__________________________________________
Authorized Signature
EXHIBIT E
[Form of
Transferee Letter of Representation]
Land O'Lakes, Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 9% Senior Secured Notes due 2010 (the "Securities") of
Land O'Lakes, Inc. (the "Company").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")), purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We 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 Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts for which
we are acting, are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years (in the
case of Rule 144A Notes) or 40 days (in the case of Regulation S notes) after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement that has been declared
effective under
2
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified institutional buyer under Rule 144A (a "QIB") that is purchasing
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:______________________________,
by:_______________________________________