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Exhibit 4.2(a)
XXXX-XXXXX STORES, INC.,
Issuer
and
ASTOR PRODUCTS, INC.
CRACKIN' GOOD, INC.
DEEP SOUTH PRODUCTS, INC.
XXXXX PACKERS, INC.
MONTEREY CANNING CO.
XXXX-XXXXX XXXXXXXXX, INC.
XXXX-XXXXX LOGISTICS, INC.
XXXX-XXXXX LOUISIANA, INC.
XXXX-XXXXX XXXXXXXXXX, INC.
XXXX-XXXXX PROCUREMENT, INC.
XXXX-XXXXX XXXXXXX, INC.,
Guarantors
to
WILMINGTON TRUST COMPANY,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of March 29, 2001
---------------
$300,000,000
8 7/8% Senior Notes due 2008
---------------
Supplemental to Indenture dated as of December 26, 2000
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 29, 2001 (the "First
Supplemental Indenture"), among XXXX-XXXXX STORES, INC., a Florida corporation
(hereinafter called the "Company"), each of the GUARANTORS signatory hereto and
WILMINGTON TRUST COMPANY, as trustee under the Base Indenture referred to below
(hereinafter called the "Trustee").
WHEREAS, the Company and the Guarantors entered into an Indenture dated
as of December 26, 2000 (the "Base Indenture," all capitalized terms used in
this First Supplemental Indenture and not otherwise defined being used as
defined in the Base Indenture) (Base Indenture and First Supplemental Indenture
are hereinafter collectively called the "Indenture") with the Trustee, for the
purposes of issuing its senior unsecured debentures, notes or other evidences of
indebtedness, unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as authorized by or pursuant to the authority granted in
one or more resolutions of the Board of Directors of the Company; and
WHEREAS, the Company proposes to issue $300,000,000 aggregate principal
amount of its 8 7/8% Senior Notes due 2008 (such securities being referred to
herein as the "Securities"); and
WHEREAS, Sections 901(2), 901(4), 901(6) and 901(8) of the Base
Indenture provide that without the consent of the Holders of the securities of
any series issued under the Base Indenture, the Company and the Guarantors, when
authorized by a Board Resolution, and the Trustee may enter into one or more
indentures supplemental to the Base Indenture to, among other things (a) add to
the covenants of the Company for the benefit of the Holders of all or any series
of securities, (b) establish the form or terms of securities of any series as
permitted by Sections 201 and 301 thereof, (c) cure any ambiguity, to correct or
supplement any provision in the Base Indenture which may be defective or which
may be inconsistent with any other provision of the Base Indenture, or to make
any other provisions with respect to matters or questions arising under the Base
Indenture which shall not adversely affect the interests of the Holders of the
securities of any series in any material respect and (d) add additional Events
of Default with respect to all or any series of securities; and
WHEREAS, the entry into this First Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the Base
Indenture;
WHEREAS, each of the Guarantors has duly authorized the issuance of a
guarantee of the Securities, and to provide therefor, each of the Guarantors has
duly authorized the execution and delivery of this First Supplemental Indenture;
and
WHEREAS, all things necessary have been done to make this First
Supplemental Indenture, when executed and delivered by the Company and the
Guarantors, the legal, valid and binding agreement of the Company and the
Guarantors, in accordance with its terms.
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NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
The parties hereto mutually covenant and agree as follows:
SECTION 1. The Base Indenture is hereby amended solely with respect to
the Securities, except as otherwise expressly provided herein, as follows:
(A) By amending Section 101 to add new definitions thereto in
appropriate alphabetical sequences, as follows:
"Acquired Indebtedness" means Indebtedness of a Person (1)
existing at the time such Person becomes a Restricted Subsidiary or
(2) assumed in connection with the acquisition of assets from such
Person, in each case, other than Indebtedness incurred in connection
with, or in contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition, as the case may be. Acquired
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary, as the case may be.
"Adjusted Funded Debt" means on any date of determination an
amount equal to the sum of (a) Funded Debt plus (b) an amount equal to
the product of (i) aggregate Consolidated Rental Expense for the four
most recent fiscal quarters reported by the Company in its public
filings multiplied by (ii) 8.
"Asset Sale" means any sale, issuance, conveyance, transfer
(other than as security), lease or other disposition (including,
without limitation, by way of merger, consolidation or sale and
leaseback transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of:
(1) any Capital Stock of any Restricted Subsidiary;
(2) all or substantially all of the properties and assets of any
division or line of business of the Company or any Restricted
Subsidiary; or
(3) any other properties or assets of the Company or any Restricted
Subsidiary other than in the ordinary course of business.
For the purposes of this definition, the term "Asset Sale" shall
not include any transfer of properties and assets
(A) that is governed by the provisions described under Article VIII,
(B) that is by the Company to any Restricted Subsidiary, or by any
Restricted Subsidiary to the Company or any Restricted Subsidiary
in accordance with the terms of this Indenture,
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(C) that would be within the definition of a "Restricted Payment"
under Section 1015 and would be permitted to be made as a
Restricted Payment (and shall be deemed a Restricted Payment)
under such covenant,
(D) that constitutes inventory or is, in the reasonable determination
of the Company, of obsolete or worn-out property or property no
longer used in the Company's or any Restricted Subsidiary's
business in the ordinary course of business, or
(E) the Fair Market Value of which in the aggregate does not exceed
$500,000 in any transaction or series of related transactions.
"Asset Swap" means the exchange by the Company or a Restricted
Subsidiary of a portion of its property, business or assets, in the
ordinary course of business, for property, businesses or assets which,
or Capital Stock of a Person all or substantially all of whose assets,
are of a type used in the business of the Company on the date of the
First Supplemental Indenture or in a Permitted Business, or a
combination of any property, business or assets or Capital Stock of
such a Person and cash or Cash Equivalents.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained
by dividing (1) the sum of the products of (a) the number of years
from the date of determination to the date or dates of each successive
scheduled principal payment of such Indebtedness multiplied by (b) the
amount of each such principal payment by (2) the sum of all such
principal payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of
1978, or any similar United States federal or state law or foreign law
relating to bankruptcy, insolvency, receivership, winding up,
liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
"Capital Expenditures" means, for any period, purchases of
property, plant and equipment, net during such period calculated in
accordance with GAAP in accordance with the manner of calculation of
purchases of property, plant and equipment, net set forth in the
Company's Consolidated Statements of Cash Flows in its Annual Report
on Form 10-K for the fiscal year ended June 28, 2000.
"Capital Lease Obligation" of any Person means any obligation of
such Person and its Restricted Subsidiaries on a Consolidated basis
under any capital lease of (or other agreement conveying the right to
use) real or personal property which, in accordance with GAAP, is
required to be recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights in or other equivalents (however
designated) of such
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Person's capital stock, other equity interests whether now outstanding
or issued after the date of the First Supplemental Indenture,
partnership interests (whether general or limited), limited liability
company interests, any other interest or participation that confers on
a Person that right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person, including any
Preferred Stock, and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for
or convertible into such Capital Stock.
"Capitalized Lease Liabilities" means, with respect to any
Person, all monetary obligations of such Person and its Restricted
Subsidiaries under any leasing or similar arrangement which have been
(or, in accordance with GAAP, should be) classified as capitalized
leases, and for purposes of this Indenture the amount of such
obligations shall be the capitalized amount thereof, 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 terminated
by the lessee without payment of a premium or a penalty.
"Cash Equivalents" means
(1) any evidence of Indebtedness issued or directly and fully
guaranteed or insured by the United States or any agency,
political subdivision or instrumentality thereof,
(2) deposits, certificates of deposit or acceptances of any
financial institution that is a member of the Federal
Reserve System and whose senior unsecured debt is rated at
least "A" by Standard & Poor's, or at least "A2" by Moody's,
(3) commercial paper with a maturity of 365 days or less issued
by a corporation (other than an Affiliate or Subsidiary of
the Company) organized and existing under the laws of the
United States of America, any state thereof or the District
of Columbia and rated at least "A-1" by Standard & Poor's
and at least "P-1" by Moody's,
(4) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by
any agency thereof and backed by the full faith and credit
of the United States maturing within 365 days from the date
of acquisition, and
(5) money market funds which invest substantially all of their
assets in securities described in the preceding clauses (1)
through (4).
"Change of Control" means the occurrence of any of the following
events:
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(1) any "person" or "group" (as such terms are 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 a Person shall be deemed
to have beneficial ownership of all shares that such Person
has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), other than
Permitted Holders, directly or indirectly, of more (x) than
35% of the total outstanding Voting Stock of the Company and
(y) Voting Stock than the Permitted Holders;
(2) 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 to such board or whose nomination for
election by the stockholders of the Company was approved by
a vote of 66 2/3% of the directors 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
such Board of Directors then in office;
(3) the Company consolidates with or merges with or into any
Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets
to any Person, or any Person consolidates with or merges
into or with the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities
or other property, other than any such transaction where
(A) the outstanding Voting Stock of the Company is changed
into or exchanged for (1) Voting Stock of the surviving
corporation which is not Redeemable Capital Stock or
(2) cash, securities and other property (other than
Capital Stock of the surviving corporation) in an
amount which could be paid by the Company as a
Restricted Payment as described under Section 1015 (and
such amount shall be treated as a Restricted Payment
subject to the provisions in this Indenture described
under Section 1015) and
(B) immediately after such transaction, no "person" or
"group" other than Permitted Holders, is the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to
have beneficial ownership of all securities that such
person has the right to acquire, whether such right is
exercisable immediately or only after the passage of
time), directly or indirectly, of
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more (x) than 35% of the total outstanding Voting Stock
of the surviving corporation and (y) Voting Stock of
the surviving corporation than the Permitted Holders;
and
(C) the stockholders of the Company prior to such
transaction beneficially own a majority of the Voting
Stock of the surviving entity after such transaction;
or
(4) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which
complies with the provisions described under Article VIII.
For purposes of this definition, any transfer of an equity interest of
an entity that was formed for the purpose of acquiring voting stock of
the Company will be deemed to be a transfer of such portion of such
voting stock as corresponds to the portion of the equity of such
entity that has been so transferred.
"Change of Control Event" means the occurrence of a Change of
Control and a Rating Decline.
"Commodity Price Protection Agreement" means any forward
contract, commodity swap, commodity option or other similar financial
agreement or arrangement relating to, or the value of which is
dependent upon, fluctuations in commodity prices.
"Consolidated Fixed Charge Coverage Ratio" of any Person means,
for any period, the ratio of
(a) the sum of Consolidated Net Income (Loss), and in each case
to the extent deducted in computing Consolidated Net Income
(Loss) for such period, Consolidated Interest Expense,
Consolidated Income Tax Expense, Consolidated Non-cash
Charges and non-cash non-recurring charges resulting from
the Restructuring and other non-recurring charges as
reported or disclosed prior to the date of the First
Supplemental Indenture and one-third of Consolidated Rental
Expense for such period, of such Person and its Restricted
Subsidiaries on a Consolidated basis, all determined in
accordance with GAAP, less all noncash items increasing
Consolidated Net Income for such period and less all cash
payments during such period relating to Consolidated
Non-cash Charges (other than in respect of the Restructuring
and other non-recurring charges as reported or disclosed
prior to the date of the First Supplemental Indenture) that
were added back to Consolidated Net Income in determining
the Consolidated Fixed Charge Coverage Ratio in any prior
period to
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(b) the sum of Consolidated Interest Expense for such period,
one-third of Consolidated Rental Expense and cash and
noncash dividends paid on any Redeemable Capital Stock or
Preferred Stock of such Person and its Restricted
Subsidiaries during such period,
in each case after giving pro forma effect (as calculated in
accordance with Article 11 of Regulation S-X under the Securities Act
of 1933 or any successor provision) to
(1) the incurrence of the Indebtedness giving rise to the need
to make such calculation and (if applicable) the application
of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, on the first day of
such period;
(2) the incurrence, repayment or retirement of any other
Indebtedness by the Company and its Restricted Subsidiaries
since the first day of such period as if such Indebtedness
was incurred, repaid or retired at the beginning of such
period (except that, in making such computation, the amount
of Indebtedness under any revolving credit facility shall be
computed based upon the average daily balance of such
Indebtedness during such period);
(3) in the case of Acquired Indebtedness or any acquisition
occurring at the time of the incurrence of such
Indebtedness, the related acquisition, assuming such
acquisition had been consummated on the first day of such
period; and
(4) any acquisition or disposition by the Company and its
Restricted Subsidiaries of any company or any business or
any assets out of the ordinary course of business, whether
by merger, stock purchase or sale or asset purchase or sale,
or any related repayment of Indebtedness, in each case since
the first day of such period, assuming such acquisition or
disposition had been consummated on the first day of such
period;
provided that
(1) in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness
computed on a pro forma basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on
the date of computation had been the applicable rate for the
entire period and (B) which was not outstanding during the
period for which the computation is being made but which
bears, at the option of such Person, a fixed or
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floating rate of interest, shall be computed by applying at
the option of such Person either the fixed or floating rate
and
(2) in making such computation, the Consolidated Interest
Expense of such Person attributable to interest on any
Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable
period.
"Consolidated Income Tax Expense" of any Person means, for any
period, the provision for federal, state, local and foreign income
taxes of such Person and its Consolidated Restricted Subsidiaries for
such period as determined in accordance with GAAP.
"Consolidated Interest Expense" of any Person means, for any
period, the sum of (a) the aggregate interest expense in accordance
with GAAP, net of interest income received during such period, of such
Person and its Restricted Subsidiaries of the Person and its
Restricted Subsidiaries, including the portion of any payments made in
respect of Capitalized Lease Liabilities allocable to interest
expense, plus, (b) for purposes of calculating the Consolidated Fixed
Charge Coverage Ratio, the interest expense under any Guaranteed Debt
of such Person and any Restricted Subsidiary to the extent not
included under clause (a) above, whether or not paid by such Person or
its Restricted Subsidiaries.
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a Consolidated basis as
determined in accordance with GAAP, adjusted, to the extent included
in calculating such net income (or loss), by excluding, without
duplication,
(1) all extraordinary gains or losses net of taxes (less all
fees and expenses relating thereto),
(2) the portion of net income (or loss) of such Person and its
Restricted Subsidiaries on a Consolidated basis allocable to
minority interests in unconsolidated Persons or Unrestricted
Subsidiaries to the extent that cash dividends or
distributions have not actually been received by such Person
or one of its Consolidated Restricted Subsidiaries,
(3) net income (or loss) of any Person combined with such Person
or any of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the
date of combination,
(4) any gain or loss, net of taxes, realized upon the
termination of any employee pension benefit plan,
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(5) gains or losses, net of taxes (less all fees and expenses
relating thereto), in respect of dispositions of assets
other than in the ordinary course of business,
(6) the net income of any non-Guarantor Restricted Subsidiary to
the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income
is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted
Subsidiary or its stockholders,
(7) any restoration to net income of any contingency reserve
(other than the reserves created prior to the date of the
First Supplemental Indenture related to company owned life
insurance tax issues and related interest and closed
stores), except to the extent provision for such reserve was
made out of income accrued at any time following the date of
the First Supplemental Indenture, or
(8) any net gain arising from the acquisition of any securities
or extinguishment, under GAAP, of any Indebtedness of such
Person;
provided that clauses (1) (with respect to extraordinary losses), (2),
(3), (4), (5), (6), (7) and (8) shall not apply in connection with the
calculation of EBITDA and EBITDAR.
"Consolidated Non-cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash
charges of such Person and its Restricted Subsidiaries on a
Consolidated basis for such period, as determined in accordance with
GAAP (excluding any non-cash charge which requires an accrual or
reserve for cash charges for any future period).
"Consolidated Rental Expense" or "Consolidated Rental Payments"
of any Person means, for any period, all payments made or required to
be made by the Company or any of its Restricted Subsidiaries, as
lessee or sublessee under any operating lease of real or personal
property as rental payments and contingent rentals under operating
leases, in each case, as calculated in accordance with GAAP in the
manner set forth in the footnotes to the Company's Annual Report on
Form 10-K for the fiscal year ended June 28, 2000.
"Consolidated Tangible Net Worth" of any Person means, at any
time, for such Person and its Restricted Subsidiaries on a
consolidated basis, an amount computed equal to (a) the consolidated
stockholders' equity of the Person and its Restricted Subsidiaries,
minus, (b) all Intangible Assets of the Person and its Restricted
Subsidiaries, in each case as of such time. For the purposes hereof,
"Intangible Assets" means intellectual property, goodwill and other
intangible
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assets, in each case determined in accordance with GAAP.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its
subsidiaries if and to the extent the accounts of such Person and each
of its Subsidiaries would normally be consolidated with those of such
Person, all in accordance with GAAP. The term "Consolidated" shall
have a similar meaning.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss) the Indebtedness of any other Person
(other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other
distributions upon the Capital Stock of any other Person. The amount
of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be
outstanding principal amount of the debt, obligation or other
liability guaranteed thereby.
"Credit Facility" means the $800 million Credit Facility to be
entered into among the Company, its subsidiaries which are guarantors
thereof, First Union National Bank as a lender and Administrative
Agent, Xxxxxxx Xxxxx Capital Corporation as a lender and Syndication
Agent and the other lenders party thereto, as such agreement, in whole
or in part, may be amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified
from time to time (including, without limitation, any successive
renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications in whole or in
part of the foregoing).
"Currency Hedging Agreements" means one or more of the following
agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect against
the fluctuations in currency values.
"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
non-cash consideration received by the Company or any of its
Restricted Subsidiaries in connection with an Asset Sale that is so
designated pursuant to an Officers' Certificate, setting forth the
basis of the valuation.
"Disinterested Director" means, with respect to any transaction
or series of related transactions, a member of the Board of Directors
of the Company who does not have any material direct or indirect
financial interest in or with respect to
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such transaction or series of related transactions.
"EBITDA" means the sum of Consolidated Net Income (Loss), and in
each case to the extent deducted in computing Consolidated Net Income
(Loss) for such period, Consolidated Interest Expense (including
interest expense with respect to the COLI judgment), Consolidated
Income Tax Expense, amortization, depreciation and non-cash
non-recurring charges resulting from the Restructuring and other
non-recurring charges resulting from an inventory write down in an
amount not to exceed $8,900,000 as reported or disclosed prior to the
date of the First Supplemental Indenture for such period, of such
Person and its Restricted Subsidiaries on a Consolidated basis, all
determined in accordance with GAAP.
"EBITDAR" means the sum of EBITDA plus the Consolidated Rental
Expense for such period, of such Person and its Restricted
Subsidiaries on a Consolidated basis.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor statute, and the rules and regulations promulgated by the
Commission thereunder.
"Fair Market Value" means, with respect to any asset or property,
the sale value that would be obtained in an arm's-length free market
transaction between an informed and willing seller under no compulsion
to sell and an informed and willing buyer under no compulsion to buy.
Fair Market Value shall be determined by the Board of Directors of the
Company acting in good faith and shall be evidenced by a resolution of
the Board of Directors.
"Fall Away Event" means the Securities shall have achieved
Investment Grade status and the Company delivers to the Trustee an
Officers' Certificate certifying that the foregoing conditions have
been satisfied.
"Funded Debt" means on any date, the outstanding principal amount
of all indebtedness of the Company and its Restricted Subsidiaries
described in clauses (1), (3), (6) and (9) of the definition of
Indebtedness (in each case, exclusive of intercompany Indebtedness)
and the amount of any Contingent Liability of the Company or any of
its Restricted Subsidiaries in respect of any of the foregoing types
of Indebtedness.
"Guarantee" means the guarantee by any Guarantor of the Company's
Indenture Obligations.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of
Indebtedness below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement
(1) to pay or purchase such Indebtedness or to advance or supply
funds
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for the payment or purchase of such Indebtedness,
(2) to purchase, sell or lease (as lessee or lessor) property,
or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such Indebtedness
or to assure the holder of such Indebtedness against loss,
(3) to supply funds to, or in any other manner invest in, the
debtor (including any agreement to pay for property or
services without requiring that such property be received or
such services be rendered),
(4) to maintain working capital or equity capital of the debtor,
or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or to cause such debtor to
achieve certain levels of financial performance, or
(5) otherwise to assure a creditor against loss;
provided that the term "guarantee" shall not include endorsements for
collection or deposit, in either case in the ordinary course of
business.
"Indebtedness" means, with respect to any Person, without
duplication,
(1) all indebtedness of such Person for borrowed money
including, without limitation, all obligations, contingent
or otherwise, of such Person in connection with any letters
of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities,
(2) all indebtedness of such Person for the deferred purchase
price of property or services, in either case, excluding any
trade payables and other accrued current liabilities arising
in the ordinary course of business,
(3) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments,
(4) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to
property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property), but excluding trade payables arising in the
ordinary course of business,
(5) all obligations under Interest Rate Agreements, Currency
Hedging Agreements or Commodity Price Protection Agreements
of such Person,
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(6) all Capital Lease Obligations of such Person,
(7) all Indebtedness referred to in clauses (1) through (6)
above of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holder
of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien, upon or with respect
to property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Indebtedness,
(8) all Guaranteed Debt of such Person,
(9) all Redeemable Capital Stock issued by such Person valued at
the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends,
(10) Preferred Stock of any Restricted Subsidiary of the Company
or any Guarantor, and
(11) any renewal, extension, refunding or refinancing of any
liability of the types referred to in clauses (1) through
(10) above which results in a liability or obligation of the
type referred to in items (1) through (10) above.
For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Redeemable Capital Stock,
such Fair Market Value to be determined in good faith by the Board of
Directors of the issuer of such Redeemable Capital Stock.
"Indenture Obligations" means the obligations of the Company and
any other obligor under this Indenture or under the Securities,
including any Guarantor, to pay principal of, premium, if any, and
interest when due and payable, and all other amounts due or to become
due under or in connection with this Indenture, the Securities and the
performance of all other obligations to the Trustee and the holders
under this Indenture and the Securities, according to the respective
terms thereof.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial
institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar
agreements) and/or other types of interest
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rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other
extension of credit 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, acquisition or ownership by such Person of any Capital
Stock, bonds, notes, debentures or other securities issued or owned by
any other Person and all other items that would be classified as
investments on a balance sheet prepared in accordance with GAAP;
provided that Investment shall not include any accounts receivable in
the ordinary course of business.
"Investment Grade" means, with respect to the Securities, a
credit rating of at least Baa3 (or the equivalent) by Moody's,
together with a rating of at least BBB- (or the equivalent) by
Standard & Poor's; provided that neither of such rating or entities
shall have announced a negative or similar outlook or announced or
informed the Company that it is reviewing the rating of the Securities
in light of downgrading the rating thereof.
"Issue Date" means the original issue date of the Securities
under this Indenture.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means
(a) with respect to any Asset Sale by any Person, the proceeds
thereof (without duplication in respect of all Asset Sales)
in the form of cash, Cash Equivalents including payments in
respect of deferred payment obligations when received in the
form of, or stock or other assets when disposed of, for
cash, Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary) net of
(1) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment
bankers) related to such Asset Sale,
(2) provisions for all taxes payable as a result of such
Asset Sale,
(3) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or
properties the subject of such Asset Sale,
(4) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary) owning a
beneficial
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interest in the assets subject to the Asset Sale, and
(5) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a
reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary,
as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment
benefit liabilities, liabilities related to
environmental matters and liabilities under any
indemnification obligations associated with such Asset
Sale, all as reflected in an Officers' Certificate
delivered to the Trustee, and
(b) with respect to any issuance or sale of Capital Stock or
options, warrants or rights to purchase Capital Stock, or
debt securities or Capital Stock that have been converted
into or exchanged for Capital Stock as referred to under
Section 1015, the proceeds of such issuance or sale in the
form of cash, Cash Equivalents including payments in respect
of deferred payment obligations when received in the form
of, or stock or other assets when disposed of for, cash,
Cash Equivalents (except to the extent that such obligations
are financed or sold with recourse to the Company or any
Restricted Subsidiary) and including the amount of
compensation expense associated with the issuance, net of
attorneys' fees, accountants' fees and brokerage,
consultation, underwriting and other fees and expenses
actually incurred in connection with such issuance or sale
and net of taxes paid or payable as a result thereof.
"Pari Passu Indebtedness" means (a) any Indebtedness of the
Company that is equal in right of payment to the Securities and (b)
with respect to any Guarantee, Indebtedness which ranks equal in right
of payment to such Guarantee.
"Permitted Business" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date of the First
Supplemental Indenture and businesses reasonably related,
complimentary or ancillary thereto, including reasonably related
extensions or expansions thereof.
"Permitted Holders" means any of A. Xxxx Xxxxx, Xxxxxx X. Xxxxx,
T. Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxxx and any trusts, estates,
corporations and other entities controlled by, or for the benefit of,
any of the foregoing or their family members.
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"Permitted Investment" means
(1) Investments in any Restricted Subsidiary or any Person
which, as a result of such Investment, (a) becomes a
Restricted Subsidiary or (b) is merged or consolidated with
or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or any
Restricted Subsidiary;
(2) Indebtedness of the Company or a Restricted Subsidiary
described under clauses (4), (5), (6) and (7) of the
definition of "Permitted Indebtedness;"
(3) Investments in any of the Securities;
(4) Cash Equivalents;
(5) Investments acquired by the Company or any Restricted
Subsidiary in connection with an Asset Sale permitted under
Section 1017 to the extent such Investments are non-cash
proceeds as permitted under such covenant or non-cash
proceeds from a sale of assets which is not considered an
Asset Sale;
(6) Investments in existence on the date of the First
Supplemental Indenture; and
(7) other Investments in an amount not to exceed $25 million in
aggregate.
In connection with any assets or property contributed or transferred
to any Person as an Investment, such property and assets shall be
equal to the Fair Market Value (as determined by the Company's Board
of Directors) at the time of Investment.
"Permitted Lien" means:
(a) any Lien existing as of the date of the First Supplemental
Indenture;
(b) any Lien securing the Credit Facility incurred pursuant to
clause (1) of the definition of Permitted Indebtedness;
(c) any Lien securing the Securities;
(d) any Lien securing intercompany debt to the Company or a
Guarantor;
(e) any Lien arising by reason of
(1) any judgment, decree or order of any court, so long as
such
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Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the
review of such judgment, decree or order shall not have
been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(2) taxes, governmental assessments or similar governmental
charges or levies not yet due or delinquent or which
are being contested by the Company in good faith and by
appropriate action;
(3) security for payment of workers' compensation,
unemployment insurance and other governmental insurance
or benefits and under other insurance arrangements;
(4) good faith deposits in connection with bids, tenders,
statutory obligations, leases, contracts (other than
contracts for the payment of money);
(5) zoning restrictions, easements, licenses, concession
arrangements, reservations, title defects, rights of
others for rights of way, utilities, sewers, electric
lines, telephone or telegraph lines, and other similar
purposes, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor
irregularities of title (and with respect to leasehold
interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to
exist and arising by, through or under a landlord or
owner of the leased property, with or without consent
of the lessee), none of which materially impairs the
use of any parcel of property material to the operation
of the business of the Company or any Subsidiary or the
value of such property for the purpose of such
business;
(6) in favor of governmental bodies to secure advance or
progress payments pursuant to any contact or statute
and Liens in favor of governmental bodies incurred in
connection with industrial revenue, pollution control,
private activity bond or similar financing; or
(7) in favor of mechanics, carriers, warehousemen,
landlords, lessors of personal property, materialmen,
laborers, employees or suppliers, granted, incurred or
arising in the ordinary course of business or as a
matter of law for amounts which are not yet delinquent
or are being contested by the Company in good faith by
negotiations or by
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appropriate proceedings which suspend the collection
thereof;
(f) any Lien securing Acquired Indebtedness created prior
to (and not created in connection with, or in
contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, provided
that the Lien shall attach only to the assets of the
related acquired entity and its Restricted Subsidiaries
and not assets of the Company and its Restricted
Subsidiaries generally;
(g) any Lien to secure the performance bids, trade
contracts, leases (including, without limitation,
statutory and common law landlord's liens), statutory
obligations, surety, stay, customs, performance and
appeal bonds, letters of credit and other obligations
of a like nature and incurred in the ordinary course of
business of the Company or any Restricted Subsidiary;
(h) any Lien securing Indebtedness permitted to be incurred
under Interest Rate Agreements, Currency Hedging
Agreements or Commodity Price Protection Agreements or
otherwise incurred to hedge interest rate, currency or
commodity pricing risk;
(i) any Lien securing Capital Lease Obligations or Purchase
Money Obligations incurred in accordance with the
Indenture (including clause (8) of the definition of
Permitted Indebtedness) and which are incurred or
assumed solely in connection with the acquisition,
development or construction of real or personal,
moveable or immovable property within 180 days of such
incurrence or assumption; provided that such Liens only
extend to such acquired, developed or constructed
property, such Liens secure Indebtedness in an amount
not in excess of the original purchase price or the
original cost of any such assets or repair, addition or
improvement thereto, and the incurrence of such
Indebtedness is permitted by the "Limitation on
Indebtedness" covenant
(j) other Liens securing Indebtedness in an aggregate
amount not to exceed the greater of (x) $20 million and
(y) 5% of Company's Consolidated Tangible Net Worth;
(k) any Lien constituting a property interest of a lessee,
concessionaire or licensee of the Company or any
Restricted Subsidiary in property leased or occupied by
such Person; and
(l) any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the
foregoing clauses (a) through (k) or the related
Indebtedness so long as no additional collateral is
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granted as security thereby.
"Preferred Stock" means, with respect to any Person, any Capital
Stock of any class or classes (however designated) which is preferred
as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation
or dissolution of such Person, over the Capital Stock of any other
class in such Person.
"Public Equity Offering" means an underwritten public offering of
common stock (other than Redeemable Capital Stock) of the Company to
the public generally with gross proceeds to the Company of at least
$50 million pursuant to a registration statement that has been
declared effective by the Commission pursuant to the Securities Act
(other than a registration statement on Form S-4 (or any successor
form covering substantially the same transactions), Form S-8 (or any
successor form covering securities issued in acquisitions or
substantially for the same type of transactions) or otherwise relating
to equity securities issuable under any employee benefit plan of the
Company).
"Purchase Money Obligation" means any Indebtedness secured by a
Lien on assets related to the business of the Company and any
additions and accessions thereto, which are purchased by the Company
at any time after the Securities are issued; provided that
(1) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets
is created (collectively a "Purchase Money Security
Agreement") shall be entered into within 180 days after the
purchase or substantial completion of the construction of
such assets and shall at all times be confined solely to the
assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom,
(2) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased,
except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness, and
(3) (A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset
basis in the case of any additions and accessions) shall not
at the time such Purchase Money Security Agreement is
entered into exceed 100% of the purchase price to the
Company of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely
to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom.
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"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Rating Date" means the date which is 30 days prior to public
notice of an arrangement which could result in a Change of Control.
"Rating Decline" means the occurrence on any date from the date
of the public notice of an arrangement which could result in a Change
of Control until the end of the 90-day period following public notice
of the occurrence of a Change of Control (which period shall be
extended so long as the rating of the Securities is under publicly
announced consideration for possible downgrade by either Standard &
Poor's or Moody's) of
(1) a decline in the rating of the Securities by either Standard
& Poor's or Moody's by at least one notch in the gradation
of the rating scale (i.e., + or - for Standard & Poor's or
1, 2 and 3 for Moody's) from their respective ratings of the
Securities on any date from the Rating Date to the date of
the notice to Standard & Poor's or Moody's of an arrangement
which could result in a Change of Control; or
(2) withdrawal by either Standard & Poor's or Moody's of their
respective ratings of the Securities.
"Redeemable Capital Stock" means any Capital Stock that, either
by its terms or by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening of
an event or passage of time would be, required to be redeemed prior to
the final Stated Maturity of the principal of the Securities or is
redeemable at the option of the holder thereof at any time prior to
such final Stated Maturity (other than upon a change of control of or
sale of assets by the Company in circumstances where the holders of
the Securities would have similar rights), or is convertible into or
exchangeable for debt securities at any time prior to such final
Stated Maturity at the option of the holder thereof.
"Securities Act" means the Securities Act of 1933, or any
successor statute, and the rules and regulations promulgated by the
Commission thereunder.
"Standard & Poor's" means Standard & Poor's Ratings Group a
division of McGraw Hill, Inc. and its successors.
"Subordinated Indebtedness" means Indebtedness of the Company or
a Guarantor subordinated in right of payment to the Securities or a
Guarantee, as the case may be.
"Tangible Net Worth" of any Person means the Consolidated
stockholder's equity of such Person and its Restricted Subsidiaries
less the Consolidated intangible assets of such Person and its
Restricted Subsidiaries.
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"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than a Guarantor) designated as such pursuant to and in
compliance with the covenant described under Section 1021.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary
(1) as to which neither the Company nor any Restricted
Subsidiary is directly or indirectly liable (by virtue of
the Company or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any
respect to, such Indebtedness), except Guaranteed Debt of
the Company or any Restricted Subsidiary to any Affiliate,
in which case (unless the incurrence of such Guaranteed Debt
resulted in a Restricted Payment at the time of incurrence)
the Company shall be deemed to have made a Restricted
Payment equal to the principal amount of any such
Indebtedness to the extent guaranteed at the time such
Affiliate is designated an Unrestricted Subsidiary, and
(2) which, upon the occurrence of a default with respect
thereto, does not result in, or permit any holder of any
Indebtedness of the Company or any Subsidiary to declare, a
default on such Indebtedness of the Company or any
Subsidiary or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity; provided that
notwithstanding the foregoing any Unrestricted Subsidiary
may guarantee the Securities.
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Capital Stock of which is owned by the Company or
another Wholly Owned Restricted Subsidiary.
(B) By amending Section 101 to replace in whole the following
definitions thereto with the corresponding existing definitions,
so that in the event of a conflict with the definition of terms
in this Indenture, the following definitions shall control:
"Affiliate" means, with respect to any specified Person: (1) any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person;
(2) any other Person that owns, directly or indirectly, 10% or more of
any class or series of such specified Person's (or any of such
Person's direct or indirect parent's) Capital Stock or any officer or
director of any such specified Person or other Person or, with respect
to any natural Person, any person having a relationship with such
Person by blood, marriage or adoption not more remote than first
cousin; or (3) any other Person 10% or more of the Voting Stock of
which is beneficially owned or held directly
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or indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States,
consistently applied, which were applied in connection with the
preparation of the financial statements of the Company and its
Restricted Subsidiaries as contained in the Company's annual report on
Form 10-K for the fiscal year ended June 28, 2000.
"Guarantor" means any Subsidiary which is a guarantor of the
Securities, including any Person that is required after the date of
the First Supplemental Indenture to execute a guarantee of the
Securities pursuant to Section 1018 until a successor replaces such
party pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor.
"Lien" means any mortgage or deed of trust, charge, pledge, lien
(statutory or otherwise), privilege, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference,
priority or other encumbrance upon or with respect to any property of
any kind (including any conditional sale, capital lease or other title
retention agreement, any leases in the nature thereof, and any
agreement to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired. A Person will be deemed to
own subject to a Lien any property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional
sale agreement, Capitalized Lease Obligation or other title retention
agreement.
"Maturity" means, when used with respect to the Securities, the
date on which the principal of the Securities becomes due and payable
as therein provided or as provided in this Indenture, whether at
Stated Maturity, the Offer Date or the redemption date and whether by
declaration of acceleration, Offer in respect of Excess Proceeds,
Change of Control Offer in respect of a Change of Control, call for
redemption or otherwise.
"Restricted Subsidiary" means any Subsidiary of the Company that
has not been designated by the Board of Directors of the Company by a
Board Resolution delivered to the Trustee as an Unrestricted
Subsidiary pursuant to and in compliance with the covenant described
under Section 1021.
"Stated Maturity" means, when used with respect to any
Indebtedness or any installment of interest thereon, the dates
specified in such Indebtedness as the fixed date on which the
principal of such Indebtedness or such installment of interest, as the
case may be, is due and payable.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor statute.
"Voting Stock" of a Person means Capital Stock of such Person of
the class or classes pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such
Person (irrespective of whether or not at the time Capital Stock of
any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
(C) By amending Section 113 (Governing Law) by deleting the phrase
"applicable to agreements made or instruments entered into and,
in each case, performed in said State" and replacing it with the
phrase "without giving effect to the conflicts of law principles
thereof"
(D) By amending Section 402 (Defeasance and Covenant Defeasance) by
adding the following sentence at the end of paragraph (1) as
follows:
Both Section 402(2), defeasance, and Section 402(3), covenant
defeasance, apply to the Securities.
(E) By amending Section 501 (Events of Default) by:
(a) deleting clause (4) and replacing it, in whole, with the
following new clause (4):
(4) (a) default in the performance, or breach, of any
covenant or agreement of the Company or any Guarantor
under this Indenture or any Guarantee (other than a
default in the performance, or breach, of a covenant or
agreement which is specifically dealt with elsewhere in
this Section 501 or in clause (b), (c) or (d) of this
clause (4)) and such default or breach shall continue
for a period of 30 days after written notice has been
given, by certified mail, (1) to the Company by the
Trustee or (2) to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount
of the outstanding Securities; (b) there shall be a
default in the performance or breach of the provisions
described in Article VIII; (c) the Company shall have
failed to make or consummate an Offer in accordance
with the provisions of Section 1017; or (d) the Company
shall have failed to make
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or consummate a Change of Control Offer in accordance
with the provisions of Section 1013;
(b) at the end of clause (8), deleting the word "or"
(c) at the end of clause (9), deleting the " . " and replacing
it with the phrase " ; or" and adding clause (10) as
follows:
(10) one or more judgments, orders or decrees of any court
or regulatory or administrative agency for the payment
of money in excess of $25 million, either individually
or in the aggregate, shall be rendered against the
Company, any Guarantor or any Restricted Subsidiary or
any of their respective properties and shall not be
discharged and either (a) any creditor shall have
commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period
of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of an
appeal or otherwise, shall not be in effect.
(F) By amending Section 513 (Waiver of Past Defaults) by deleting the
phrase "Outstanding Securities of any series," and replacing it
with the phrase "Outstanding Securities, or in the case of the
obligation of the Company to make and consummate an offer with
respect to an Asset Sale or Asset Sales in accordance with
Section 1017, the Holders of at least 75% in principal amount of
the Outstanding Securities,"
(G) By amending paragraph (5) of Section 601 (Certain Rights of
Trustee) by deleting the phrase "security or indemnity reasonably
acceptable to the Trustee against the costs, expenses and
liabilities" and replacing it with the phrase "security and
indemnity satisfactory to the Trustee against any loss, liability
or expense"
(H) By adding the following section to Article VI as follows:
Section 612. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d), if a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care
and skill in its exercise thereof as a prudent
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person would exercise or use under the circumstances in the conduct of
his own affairs.
(I) By amending Section 801 (Company May Consolidate, Etc., Only on
Certain Terms) by:
(a) at the beginning of the first paragraph before the words
"The Company shall not," adding the word "(a)" to create a
subsection (a)
(b) in the first paragraph, deleting the phrase "Person,
unless:" and replacing it with the phrase "Person or group
of affiliated Persons, or permit any of its Restricted
Subsidiaries to enter into any such transaction or series of
related transactions if such transaction or series of
related transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or disposition
of all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries on a
Consolidated basis to any other Person or group of
affiliated Persons, unless at the time and after giving
effect thereto:"
(c) in paragraph (1), after the words "and assets of the
Company" adding the words "and its Restricted Subsidiaries
on a Consolidated basis (the "Surviving Entity")"
(d) at the end of paragraph (1) after the words "or other
securities" adding the words "and this Indenture will remain
in full force and effect as so supplemented"
(e) at the end of paragraph (2), deleting the word "and"
(f) at the beginning of paragraph (3) before the words "either
the Company" adding the words "at the time of the
transaction"
(g) at the end of paragraph (3), deleting the phrase "have been
complied with." and replacing it with the phrase "have been
complied with, and each Guarantor, if any, unless it is the
other party to the transactions described above, will have
by supplemental indenture confirmed that its Guarantees
shall apply to such Person's obligations hereunder and under
the Securities; and"
(i) adding paragraph (4) as follows
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(4) immediately before and immediately after giving effect
to such transaction on a pro forma basis (on the
assumption that the transaction occurred on the first
day of the four-quarter period for which financial
statements are available ending immediately prior to
the consummation of such transaction with the
appropriate adjustments with respect to the transaction
being included in such pro forma calculation), the
Company (or the Surviving Entity if the Company is not
the continuing obligor hereunder) could incur $1.00 of
additional Indebtedness (other than Permitted
Indebtedness) under Section 1014.
(j) adding subsection (b) as follows:
(b) Each Guarantor, if any, will not, and the Company will not
permit a Guarantor to, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other
Person (other than the Company or any Guarantor) or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially
all of its properties and assets to any Person or group of Persons
(other than the Company or any Guarantor), or permit any of its
Restricted Subsidiaries to enter into any such transaction or series
of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer,
lease or disposition of all or substantially all of the properties and
assets of the Guarantor and its Restricted Subsidiaries on a
Consolidated basis to any other Person or group of Persons (other than
the Company or any Guarantor), unless at the time and after giving
effect thereto:
(1) either (a) the Guarantor will be the continuing
corporation in the case of a consolidation or merger
involving the Guarantor or (b) the Person (if other
than the Guarantor) formed by such consolidation or
into which such Guarantor is merged or the Person which
acquires by sale, assignment, conveyance, transfer,
lease or disposition all or substantially all of the
properties and assets of the Guarantor and its
Restricted Subsidiaries on a Consolidated basis (the
"Surviving Guarantor Entity") will be a corporation
duly organized and validly existing under the laws of
the United States of America, any state thereof or the
District of Columbia and such Person expressly assumes,
by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of
such Guarantor under its Guarantee of the Securities
and this Indenture and such Guarantee and Indenture
will remain in full force and effect;
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28
(2) immediately before and immediately after giving effect
to such transaction on a pro forma basis, no Default or
Event of Default will have occurred and be continuing;
and
(3) at the time of the transaction such Guarantor or the
Surviving Guarantor Entity will have delivered, or
caused to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each
to the effect that such consolidation, merger,
transfer, sale, assignment, conveyance, lease or other
transaction and the supplemental indenture in respect
thereof comply with this Indenture and that all
conditions precedent therein provided for relating to
such transaction have been complied with; provided,
however, that this paragraph shall not apply to any
Guarantor whose Guarantee of the Securities is
unconditionally released and discharged in accordance
with paragraph (b) of Section 1018.
(J) By amending Section 802 (Successor Person Substituted for
Company) by
(a) deleting, in all instances, the phrase "the Company" and
replacing it, in all instances, with the phrase "the Company
or any Guarantor, as the case may be"
(b) deleting the phrase "the Securities" and replacing it with
the phrase "the Securities or its Guarantee, as the case may
be"
(K) By amending Section 902 (Supplemental Indentures with Consent of
Holders) by:
(a) in the first paragraph, deleting the phrase "not less than a
majority in principal amount of the Outstanding Securities
of each series" and replacing it with the phrase "at least a
majority in aggregate principal amount of the Securities
then outstanding (including consents obtained in connection
with a tender offer or exchange offer for Securities)"
(b) at the end of clause (1), deleting the words "repayment),
or" and replacing them with the words "repayment), including
amending, changing or modifying any definitions related
thereto, or"
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(c) at the end of clause (2), deleting the words "voting, or"
and replacing them with the words "voting, including
amending, changing or modifying any definitions related
thereto, or"
(d) in clause (3), deleting the words "Section 1010," and
replacing them with the words "Section 1010, including
amending, changing or modifying any definitions related
thereto,"
(e) at the end of clause (4), deleting the " . " and replacing
it with the phrase " , or" and adding clauses (5), (6), (7)
and (8) and the subsequent paragraph as follows:
(5) change to an earlier date any redemption date of, or
waive a default in the payment of the principal of,
premium, if any, or interest on, any such Security, or
(6) amend, change or modify the obligation of the Company
to make and consummate a Change of Control Offer in the
event of a Change of Control Event in accordance with
Section 1013, including amending, changing or modifying
any definitions related thereto, or
(7) except as otherwise permitted under Article VIII,
consent to the assignment or transfer by the Company or
any Guarantor of any of its rights and obligations
under this Indenture, or
(8) amend or modify any of the provisions of this Indenture
in any manner which subordinates the Securities issued
thereunder in right of payment to any other
Indebtedness of the Company or which subordinates any
Guarantee in right of payment to any other Indebtedness
of the Guarantor issuing any such Guarantee;
provided further, however, that no such modification or
amendment may, without the consent of the Holders of at
least 75% of the outstanding principal amount of the
Securities amend, change or modify the obligation of the
Company to make and consummate an offer with respect to any
Asset Sale or Asset Sales in accordance with Section 1017,
including amending, changing or modifying any definitions
related thereto.
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(L) By amending Section 1006 (Limitation on Liens) by:
(a) adding the following two paragraphs before the first
paragraph:
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur
or affirm any consensual Lien of any kind upon any property or
assets (including any intercompany notes) of the Company or any
Restricted Subsidiary owned on the date of the First Supplemental
Indenture or acquired after the date of the First Supplemental
Indenture, or assign or convey any right to receive any income or
profits therefrom, unless the Securities (or a Guarantee in the
case of Liens of a Guarantor) are directly secured equally and
ratably with (or, in the case of Subordinated Indebtedness, prior
or senior thereto, with the same relative priority as the
Securities shall have with respect to such Subordinated
Indebtedness) the obligation or liability secured by such Lien
except for any Permitted Liens.
Notwithstanding the foregoing, any Lien securing the
Securities granted pursuant to this covenant shall be
automatically and unconditionally released and discharged upon
the release by the holders of the Indebtedness described above of
their Lien on the property or assets of the Company or any
Restricted Subsidiary (including any deemed release upon payment
in full of all obligations under such Indebtedness), at such time
as the holders of all such Indebtedness also release their Lien
on the property or assets of the Company or such Restricted
Subsidiary, or upon any sale, exchange or transfer to any Person
not an Affiliate of the Company of the property or assets secured
by such Lien, or of all of the Capital Stock held by the Company
or any Restricted Subsidiary in, or all or substantially all the
assets of, any Restricted Subsidiary that owns the property or
assets subject to such Lien.
(b) replacing in the first sentence of the first paragraph the
words "The Company will not, and will not" with the words
"However, if a Fall Away Event has occurred, then, subject
to Section 1024 herein, the Company shall no longer be
subject to the restrictions described in the preceding
paragraphs above; provided, however, that the Company shall
not, and shall not"
(c) in clause (1), deleting the phrase "as of the date of the
indenture" and replacing it with the phrase "on the date the
Securities are issued hereunder which shall include any
Liens which may be created in connection with the Credit
Facility in an amount which shall not exceed the
availability under the Credit Facility on the date the
Securities are issued hereunder
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(M) By Amending Section 1010 (Waiver of Certain Covenants) by:
(a) deleting the phrase "Sections 1002 to 1009, inclusive, with
respect to the Securities of any series and, if expressly
provided pursuant to Section 301(18), any additional
covenants applicable to the Securities of such series" and
replacing it with the phrase "Sections 1002 through 1009,
inclusive, Sections 1013 through 1016, inclusive, and
Sections 1018 through 1023, inclusive, with respect to the
Securities"
(b) deleting the phrase "Outstanding Securities of such series,"
and replacing it with the phrase "Outstanding Securities, or
in the case of the obligation of the Company to make and
consummate an offer with respect to an Asset Sale or Asset
Sales in accordance with Section 1017, the Holders of at
least 75% in principal amount of the Outstanding
Securities,"
(N) By amending Section 1011 (Company Statement as to Compliance) by:
(a) adding the following sentence before the first paragraph:
The Company shall notify the Trustee within 10 Business Days
of the occurrence of any Default.
(b) deleting the phrase "within 120 days after the end of each
fiscal year" and replacing it with the phrase "on or before
a date not more than 60 days after the end of each fiscal
quarter and not more than 120 days after the end of each
fiscal year"
(O) By adding the following Sections to Article X as follows:
Section 1013. Purchase of Securities upon a Change of Control Event.
(a) If a Change of Control Event occurs, each Holder of
Securities will have the right to require that the Company purchase
all or any part (in integral multiples of $1,000) of such Holder's
Securities pursuant to a Change of Control Offer. In the Change of
Control Offer, the Company will offer to purchase all of the
Securities, at a purchase price (the "Change of Control Purchase
Price") in cash in an amount equal to 101% of the principal amount of
such Securities, plus accrued and unpaid interest, if any, to the date
of purchase (the "Change of Control Purchase Date") (subject to the
rights of holders of record on relevant record dates to receive
interest due on an interest payment date), in accordance
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with the other procedures set forth in subsections (b), (c), (d) and
(e) of this Section 1013.
(b) Within 30 days of any Change of Control Event or, at the
Company's option, prior to any Change of Control but after it is
publicly announced the Company must notify the Trustee and give
written notice of the Change of Control Event to each Holder of
Securities, by first-class mail, postage prepaid, at his address
appearing in the security register. The notice must state, among other
things,
(1) that a Change of Control Event has occurred and the date of
such event;
(2) the circumstances and relevant facts regarding such Change
of Control Event, including information with respect to pro
forma historical income, cash flow and capitalization after
giving effect to such Change of Control Event;
(3) (i) 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, as applicable, and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report
(or in the event the Company is not required to prepare any
of the foregoing Forms, the comparable information required
to be prepared by the Company and any Guarantor pursuant to
Section 1022), (ii) a description of material developments,
if any, in the Company's business subsequent to the date of
the latest of such reports and (iii) such other information,
if any, concerning the business of the Company which the
Company in good faith believes will enable such Holders to
make an informed investment decision regarding the Change of
Control Offer;
(4) that the Change of Control Offer is being made pursuant to
this Section 1013 and that all Securities properly tendered
pursuant to the Change of Control Offer will be accepted for
payment at the Change of Control Purchase Price;
(5) the purchase price and the purchase date which shall be
fixed by the Company on a Business Day no earlier than 30
days nor later than 60 days from the date the notice is
mailed, but shall be no earlier than the consummation of the
Change of Control or such later date as is necessary to
comply with requirements under the Exchange Act;
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(6) the names and addresses of the Paying Agent and the offices
or agencies referred to in Section 1002;
(7) that Securities must be surrendered prior to the Change of
Control Purchase Date to the Paying Agent at the office of
the Paying Agent or to an office or agency referred to in
Section 1002 to collect payment;
(8) that the Change of Control Purchase Price for any Security
which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Offer Purchase
Date;
(9) that any Security not tendered will continue to accrue
interest;
(10) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Securities accepted
for payment pursuant to the Change of Control Offer will
cease to accrue interest after the Change of Control
Purchase Date; and
(11) other procedures that a holder of Securities must follow to
accept a Change of Control Offer or to withdraw acceptance
of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper
tender was made shall (unless the tender of such Security is properly
withdrawn) thereafter be entitled to receive solely the Change of
Control Purchase Price with respect to such Security. Upon surrender
of any such Security for purchase in accordance with the foregoing
provisions, such Security shall be paid by the Company at the Change
of Control Purchase Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Change of Control
Purchase Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such on the relevant
Regular Record Dates according to the terms and the provisions of
Section 309. If any Security tendered for purchase in accordance with
the provisions of this Section 1013 shall not be so paid upon
surrender thereof, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Change of Control
Purchase Date at the rate borne by such Security. Holders electing to
have Securities purchased will be required to surrender such
Securities to the Paying Agent at the address specified in the Change
of Control Purchase Notice on or prior to the Change of Control
Purchase Date. Any Security that is to be purchased only in part shall
be surrendered to a Paying Agent at the office of such Paying Agent
(with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written
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instrument of transfer in form satisfactory to the Company and the
Security Registrar or the Trustee, as the case may be, duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) not later than
10:00 a.m. (New York time) on the Business Day following the Change of
Control Purchase Date, deposit with the Trustee or with a Paying Agent
an amount of money in same day funds (or New York Clearing House funds
if such deposit is made prior to the Change of Control Purchase Date)
sufficient to pay the aggregate Change of Control Purchase Price of
all the Securities or portions thereof which are to be purchased as of
the Change of Control Purchase Date and (iii) not later than 10:00
a.m. (New York time) on the Business Day following the Change of
Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Securities or portions thereof accepted for
payment by the Company. The Paying Agent shall promptly mail or
deliver to Holders of Securities so accepted payment in an amount
equal to the Change of Control Purchase Price of the Securities
purchased from each such Holder, and the Company shall execute and the
Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security equal in principal amount to any unpurchased
portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the
Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of
Control Purchase Date. For purposes of this Section 1013, the Company
shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase
Notice may be withdrawn if the Company receives, not later than one
Business Day prior to the Change of Control Purchase Date, a telegram,
telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
(3) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) delivered for
purchase by the Holder as to which such notice of
withdrawal is being submitted;
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(4) a statement that such Holder is withdrawing his
election to have such principal amount of such Security
purchased; and
(5) the principal amount, if any, of such Security (which
shall be $1,000 or an integral multiple thereof) that
remains subject to the original Change of Control
Purchase Notice and that has been or will be delivered
for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and the
Paying Agent shall return to the Company any cash that remains
unclaimed, together with interest or dividends, if any, thereon, held
by them for the payment of the Change of Control Purchase Price;
provided, however, that, (x) to the extent that the aggregate amount
of cash deposited by the Company pursuant to clause (ii) of paragraph
(d) above exceeds the aggregate Change of Control Purchase Price of
the Securities or portions thereof to be purchased, then the Trustee
shall hold such excess for the Company and (y) unless otherwise
directed by the Company in writing, no later than the second Business
Day following the Change of Control Purchase Date the Trustee shall
return any such excess (including, without limitation, monies
deposited with respect to a tender withdrawn in accordance with the
provisions of paragraph (e) to the Company together with interest, if
any, thereon.
(g) Failure of the Company to make or consummate the Change of
Control Offer or pay the Change of Control Purchase Price when due
constitutes a Default and will provide the Trustee and the Holders of
the Securities the rights described under Section 501.
(h) The Company shall comply, to the extent applicable, with the
applicable tender offer rules, including Rule 14e-1 under the Exchange
Act, and any other applicable securities laws or regulations in
connection with a Change of Control Offer.
(i) The Company will not be required to make a Change of Control
Offer upon a Change of Control Event if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in
compliance with the requirements described in this Indenture
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.
(j) The Company may elect to make a Change of Control Offer after
the occurrence of a Change of Control but before the occurrence of a
Rating Decline in which case the Company will not be required to make
an additional Change of Control Offer upon a Rating Decline so long as
the Company satisfied the requirements applicable to a Change of
Control Offer and purchased all Securities validly tendered and not
withdrawn upon such Change of Control
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Offer.
Section 1014. Limitation on Indebtedness
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, create, issue, incur, assume, guarantee or
otherwise in any manner become directly or indirectly liable for the
payment of or otherwise incur, contingently or otherwise
(collectively, "incur"), any Indebtedness (including any Acquired
Indebtedness), unless such Indebtedness is incurred by the Company or
any Guarantor or constitutes Acquired Indebtedness of a Restricted
Subsidiary and, in each case, the Company's Consolidated Fixed Charge
Coverage Ratio for the most recent four full fiscal quarters for which
financial statements are available immediately preceding the
incurrence of such Indebtedness taken as one period is at least equal
to or greater than 2.0:1.0 for any calculation made on or prior to
June 25, 2003 and 2.25:1.0 for any calculation made thereafter.
Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur
each and all of the following (collectively, the "Permitted
Indebtedness"):
(1) Indebtedness of the Company (and Guarantees by the
Guarantors of such Indebtedness) under the Credit Facility
in an aggregate principal amount at any one time outstanding
not to exceed
(a) $400 million under any term loans made pursuant
thereto, minus all principal payments made in respect
of any term loans and
(b) $400 million under any revolving credit facility or in
respect of letters of credit thereunder;
(2) Indebtedness of the Company pursuant to the Securities and
Indebtedness of any Guarantor pursuant to a Guarantee of the
Securities;
(3) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the date of the First Supplemental Indenture,
and not otherwise referred to in this definition of
"Permitted Indebtedness;"
(4) Indebtedness of the Company owing to a Restricted
Subsidiary;
-- provided that any Indebtedness of the Company owing to
a Restricted Subsidiary that is not a Guarantor is made
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pursuant to an intercompany note and is unsecured and
is subordinated in right of payment from and after such
time as the Securities shall become due and payable
(whether at Stated Maturity, acceleration or otherwise)
to the payment and performance of the Company's
obligations under the Securities;
-- provided, further, that any disposition, pledge or
transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer (x) to a
Restricted Subsidiary or (y) pursuant to the Credit
Facility) shall be deemed to be an incurrence of such
Indebtedness by the Company or other obligor not
permitted by this clause (4);
(5) Indebtedness of a Restricted Subsidiary owing to the Company
or another Restricted Subsidiary; provided, that (a) any
disposition, pledge or transfer of any such Indebtedness to
a Person (other than a disposition, pledge or transfer (x)
to the Company or a Restricted Subsidiary or (y) pursuant to
the Credit Facility) shall be deemed to be an incurrence of
such Indebtedness by the obligor not permitted by this
clause (5), and (b) any transaction pursuant to which any
Restricted Subsidiary, which has Indebtedness owing to the
Company or any other Restricted Subsidiary, ceases to be a
Restricted Subsidiary shall be deemed to be the incurrence
of Indebtedness by such Restricted Subsidiary that is not
permitted by this clause (5);
(6) Guarantees of any Restricted Subsidiary made in accordance
with the provisions of Section 1018;
(7) obligations of the Company or any Restricted Subsidiary
entered into in the ordinary course of business
(a) pursuant to Interest Rate Agreements designed to
protect the Company or any Restricted Subsidiary
against fluctuations in interest rates in respect of
Indebtedness of the Company or any Restricted
Subsidiary as long as such obligations do not exceed
the aggregate principal amount of such Indebtedness
then outstanding,
(b) under any Currency Hedging Agreements, relating to (1)
Indebtedness of the Company or any Restricted
Subsidiary and/or (2) obligations to purchase or sell
assets or properties, in each case, incurred in the
ordinary course of business of the Company or any
Restricted Subsidiary;
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provided, however, that such Currency Hedging
Agreements do not increase the Indebtedness or other
obligations of the Company or any Restricted Subsidiary
outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder or
(c) under any Commodity Price Protection Agreements which
do not increase the amount of Indebtedness or other
obligations of the Company or any Restricted Subsidiary
outstanding other than as a result of fluctuations in
commodity prices or by reason of fees, indemnities and
compensation payable thereunder;
(8) Indebtedness of the Company or any Restricted Subsidiary
represented by industrial revenue bonds or Capital Lease
Obligations or Purchase Money Obligations or other
Indebtedness incurred or assumed in connection with the
acquisition or development of real or personal, movable or
immovable, property in each case incurred for the purpose of
financing or refinancing all or any part of the purchase
price or cost of construction or improvement of property
used in the business of the Company, in an aggregate
principal amount pursuant to this clause (8) not to exceed
the greater of (x) $35 million or (y) 5% of Consolidated
Tangible Net Worth outstanding at any time; provided that
the principal amount of any Indebtedness permitted under
this clause (8) did not in each case at the time of
incurrence exceed the Fair Market Value, as determined by
the Company in good faith, of the acquired or constructed
asset or improvement so financed;
(9) letters of credit to support workers compensation
obligations and bankers acceptances and performance bonds,
surety bonds, appeal bonds and performance guarantees, of
the Company or any Restricted Subsidiary, in each case, in
the ordinary course of business consistent with past
practice;
(10) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing")
of any Indebtedness incurred pursuant to the ratio test in
the first paragraph of this covenant or described in clauses
(2) and (3) of this definition of "Permitted Indebtedness,"
including any successive refinancings so long as the
borrower under such refinancing is the Company or, if not
the Company, the same as the borrower of the Indebtedness
being refinanced and the aggregate principal amount of
Indebtedness represented thereby (or if such Indebtedness
provides for an amount less than the principal amount
thereof to be due and
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payable upon a declaration of acceleration of the maturity
thereof, the original issue price of such Indebtedness plus
any accreted value attributable thereto since the original
issuance of such Indebtedness) is not increased by such
refinancing plus the lesser of (a) the stated amount of any
premium or other payment required to be paid in connection
with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (b) the amount of premium
or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of expenses
of the Company incurred in connection with such refinancing
and (1) in the case of any refinancing of Indebtedness that
is Subordinated Indebtedness, such new Indebtedness is made
subordinated to the Securities at least to the same extent
as the Indebtedness being refinanced and (2) in the case of
Pari Passu Indebtedness or Subordinated Indebtedness, as the
case may be, such refinancing does not reduce the Average
Life to Stated Maturity or the Stated Maturity of such
Indebtedness; and
(11) Indebtedness of the Company or any Guarantor in addition to
that described in clauses (1) through (10) above, and any
renewals, extensions, substitutions, refinancings or
replacements of such Indebtedness, so long as the aggregate
principal amount of all such Indebtedness shall not exceed
$50 million outstanding at any one time in the aggregate.
For purposes of determining compliance with this Section 1014, in
the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness permitted by this covenant, the
Company in its sole discretion shall classify or later reclassify in
whole or in part in its sole discretion such item of Indebtedness and
only be required to include the amount of such Indebtedness as one of
such types.
Section 1015. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly:
(1) declare or pay any dividend on, or make any distribution to
Holders of, any shares of the Company's Capital Stock (other
than dividends or distributions payable solely in shares of
the Company's Qualified Capital Stock or in options,
warrants or other rights to acquire shares of such Qualified
Capital Stock);
(2) purchase, redeem, defease or otherwise acquire or retire for
value, directly or indirectly, the Company's Capital Stock
or any Capital Stock of any Affiliate of the Company (other
than Capital Stock of
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any Wholly Owned Restricted Subsidiary of the Company) or
options, warrants or other rights to acquire such Capital
Stock;
(3) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any
scheduled principal payment, sinking fund payment or
maturity, any Subordinated Indebtedness;
(4) declare or pay any dividend or distribution on any Capital
Stock of any Restricted Subsidiary to any Person (other than
(a) to the Company or any of its Wholly Owned Restricted
Subsidiaries or (b) dividends or distributions made by a
Restricted Subsidiary on a pro rata basis to all
stockholders of such Restricted Subsidiary); or
(5) make any Investment in any Person (other than any Permitted
Investments);
(any of the foregoing actions described in clauses (1) through (5)
above, other than any such action that is a Permitted Payment (as
defined below), collectively, "Restricted Payments") (the amount of
any such Restricted Payment, if other than cash, shall be the Fair
Market Value of the assets proposed to be transferred, as determined
by the Board of Directors of the Company, whose determination shall be
conclusive and evidenced by a Board Resolution), unless
(1) immediately before and immediately after giving effect to
such proposed Restricted Payment on a pro forma basis, no
Default or Event of Default shall have occurred and be
continuing and such Restricted Payment shall not be an event
which is, or after notice or lapse of time or both, would
be, an "event of default" under the terms of any
Indebtedness of the Company or its Restricted Subsidiaries;
(2) immediately before and immediately after giving effect to
such Restricted Payment on a pro forma basis, the Company
could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the provisions described under
Section 1014; and
(3) after giving effect to the proposed Restricted Payment, the
aggregate amount of all such Restricted Payments declared or
made after the date of the First Supplemental Indenture and
all Designation Amounts (as such term is defined under
Section 1021) does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income of the
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Company accrued on a cumulative basis during the period
beginning on the first day of the Company's fiscal
quarter beginning after the date of the First
Supplemental Indenture and ending on the last day of
the Company's last fiscal quarter ending prior to the
date of the Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income shall be a loss,
minus 100% of such loss);
(B) the aggregate Net Cash Proceeds received after the date
of the First Supplemental Indenture by the Company
either (1) as capital contributions in the form of
common equity to the Company or (2) from the issuance
or sale (other than to any of its Subsidiaries) of
Qualified Capital Stock of the Company or any options,
warrants or rights to purchase such Qualified Capital
Stock of the Company (except, in each case, to the
extent such proceeds are used to purchase, redeem or
otherwise retire Capital Stock or Subordinated
Indebtedness as set forth below in clause (2) or (3) of
paragraph (b) below) (and excluding the Net Cash
Proceeds from the issuance of Qualified Capital Stock
financed, directly or indirectly, using funds borrowed
from the Company or any Subsidiary until and to the
extent such borrowing is repaid);
(C) the aggregate Net Cash Proceeds received after the date
of the First Supplemental Indenture by the Company
(other than from any of its Subsidiaries) upon the
exercise of any options, warrants or rights to purchase
Qualified Capital Stock of the Company (and excluding
the Net Cash Proceeds from the exercise of any options,
warrants or rights to purchase Qualified Capital Stock
financed, directly or indirectly, using funds borrowed
from the Company or any Subsidiary until and to the
extent such borrowing is repaid);
(D) the aggregate Net Cash Proceeds received after the date
of the First Supplemental Indenture by the Company from
the conversion or exchange, if any, of debt securities
or Redeemable Capital Stock of the Company or its
Restricted Subsidiaries into or for Qualified Capital
Stock of the Company plus, to the extent such debt
securities or Redeemable Capital Stock were issued
after the date of the First Supplemental Indenture, the
aggregate of Net Cash Proceeds from their original
issuance (and excluding the Net Cash Proceeds from the
conversion or exchange of debt securities or Redeemable
Capital Stock financed, directly or
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indirectly, using funds borrowed from the Company or
any Subsidiary until and to the extent such borrowing
is repaid); and
(E) (a) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made
after the date of the First Supplemental
Indenture, an amount (to the extent not included
in Consolidated Net Income) equal to the lesser of
the return of capital with respect to such
Investment and the initial amount of such
Investment, in either case, less the cost of the
disposition of such Investment and net of taxes
(to the extent not reflected in Consolidated Net
Income), and
(b) in the case of the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary (as long as
the designation of such Subsidiary as an
Unrestricted Subsidiary was deemed a Restricted
Payment), the Fair Market Value of the Company's
interest in such Subsidiary provided that such
amount shall not in any case exceed the aggregate
amount of the Restricted Payments deemed made at
the time or after the Subsidiary was designated as
an Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, and in the case of clauses (3)
through (6) below, so long as no Default or Event of Default is
continuing or would arise therefrom, the foregoing provisions shall
not prohibit the following actions (each of clauses (1) through (5)
being referred to as a "Permitted Payment"):
(1) the payment of any dividend within 120 days after the date
of declaration thereof, if at such date of declaration such
payment was permitted by the provisions of paragraph (a) or
clause (b)(6) of this section; however such payment shall be
deemed to have been paid on such date of declaration and
shall be deemed not to be a "Permitted Payment" for purposes
of the calculation required by paragraph (a) of this
Section;
(2) the repurchase, redemption or other acquisition or
retirement for value of any shares of any class of Capital
Stock of the Company in connection with a cashless or
similar exercise under the Company's employee stock option
plans or employee benefit plans then in effect;
(3) the repurchase, redemption, or other acquisition or
retirement for
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value of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange
pursuant to the exercise of a conversion right or privilege
in connection with which cash is paid in lieu of the
issuance of fractional shares or scrip), or out of the Net
Cash Proceeds of a substantially concurrent issuance and
sale for cash (other than to a Subsidiary) of, other shares
of Qualified Capital Stock of the Company; provided that the
Net Cash Proceeds from the issuance of such shares of
Qualified Capital Stock are excluded from clause (3)(B) of
paragraph (a) of this Section;
(4) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any
Subordinated Indebtedness in exchange for, or in an amount
not in excess of the Net Cash Proceeds of, a substantially
concurrent issuance and sale for cash (other than to any
Subsidiary of the Company) of any Qualified Capital Stock of
the Company, provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are
excluded from clause (3)(B) of paragraph (a) of this
Section; and
(5) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal
of any Subordinated Indebtedness (other than Redeemable
Capital Stock) (a "refinancing") through the substantially
concurrent issuance of new Subordinated Indebtedness of the
Company, provided that any such new Subordinated
Indebtedness
(a) shall be in a principal amount that does not exceed the
principal amount so refinanced (or, if such
Subordinated Indebtedness provides for an amount less
than the principal amount thereof to be due and payable
upon a declaration of acceleration thereof, then such
lesser amount as of the date of determination), plus
the lesser of (1) the stated amount of any premium or
other payment required to be paid in connection with
such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (2) the amount of
premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the
amount of expenses of the Company incurred in
connection with such refinancing;
(b) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the
Securities;
(c) has a Stated Maturity for its final scheduled principal
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payment later than the Stated Maturity for the final
scheduled principal payment of the Securities;
(d) is expressly subordinated in right of payment to the
Securities at least to the same extent as the
Subordinated Indebtedness to be refinanced; and
(6) the declaration of dividends in an amount not to exceed the
following amounts that the Company reported in its
consolidated financial statements included in its public
filings reports with respect to each of the fiscal quarters
in each year during the term of the Securities described
below (the "Permitted Dividend Amount"):
FISCAL QUARTER PERMITTED DIVIDEND AMOUNT
-------------- -------------------------
1st Quarter $23,881,000
2nd Quarter 47,760,000
3rd Quarter 35,820,000
4th Quarter 35,820,000
; provided that the Permitted Dividend Amount shall increase (or
decrease, as the case may be) by $1.02 (as such $1.02 shall be
adjusted pursuant to paragraph (d) below for changes in the
capitalization of the Company upon recapitalizations,
reclassifications, stock splits, stock dividends, reverse stock
splits, stock consolidations and similar transactions) per fiscal
year (allocated to each fiscal quarter in such fiscal year in the
same proportion as the Permitted Dividend Amount was allocated
immediately before such increase (or decrease as the case may
be)) for each share of Common Stock issued and outstanding on the
record date for any dividend in excess of (or less than, as the
case may be) the number of shares of Common Stock issued and
outstanding on January 10, 2001, provided that any such share was
issued (x) at fair market value or (y) pursuant to options or
otherwise in accordance with the Company's employee stock option,
purchase or other benefit plans provided that, in the case of
share issuances in excess of $15 million in a single or series of
related transactions pursuant to clause (x), such fair market
value has been determined by the Board of Directors of the
Company; provided further, that if prior to the date of
declaration of the second dividend declared after the Company has
available regular audited annual financial statements for the
year ending June 25, 2003, the Company's EBITDA minus the greater
of (x) $140 million and (y) the Company's Capital Expenditures
(the "Adjusted Free Cash Flow") with respect to the four
consecutive fiscal quarters ending with the fiscal quarter listed
below (the "Measurement Period") for which the Company has
available, as of the date of a dividend declaration, regular
unaudited quarterly or audited annual financial
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statements, does not exceed the amount (the "Minimum Adjusted
Free Cash Flow") set forth in the chart below with respect to the
Measurement Period:
LAST FISCAL QUARTER MINIMUM ADJUSTED
OF MEASUREMENT PERIOD FREE CASH FLOW
--------------------- ----------------
3rd Quarter 2001 $80,000,000
4th Quarter 2001 80,000,000
1st Quarter 2002 275,000,000
2nd Quarter 2002 350,000,000
3rd Quarter 2002 375,000,000
4th Quarter 2002 400,000,000
Each Quarter 2003 350,000,000
then the Permitted Dividend Amount for any fiscal quarter during
which the dividends so declared are to be paid shall be reduced
on a dollar-for-dollar basis (but not below zero) by the amount
that the Company's Adjusted Free Cash Flow is less than the
Minimum Adjusted Free Cash Flow during the applicable Measurement
Period; provided, further, beginning with the second dividend
declared after the Company has available regular audited annual
financial statements for the year ending June 25, 2003 and
thereafter, no dividends may be declared pursuant to this clause
(6) unless the Company satisfies each of the following tests as
of the date of declaration:
(1) The Company's ratio as of the last day of the most recent
fiscal quarter for which the Company has regular quarterly
or annual financial statements of (a) Funded Debt
outstanding on the last day of such fiscal quarter to (b)
EBITDA for the four fiscal quarters ending on such last day
shall be less than 1.5:1.0;
(2) The Company's ratio as of the last day of the most recent
fiscal quarter for which the Company has regular quarterly
or annual financial statements of (a) Adjusted Funded Debt
outstanding on the last day of such fiscal quarter to (b)
EBITDAR for the four fiscal quarters ending on such last day
shall be less than, with respect to any period through
fiscal 2004, 4.0:1.0 and thereafter 3.5:1.0;
(3) The Company's ratio as of the last day of the most recent
fiscal quarter for which the Company has regular quarterly
or annual financial statements of (a) EBITDAR to (b) the sum
of Consolidated Interest Expense plus Consolidated Rental
Expense, in each case, for the four fiscal quarters ending
on such last day shall exceed 2.25:1.0; and
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(4) The Company's Tangible Net Worth shall exceed at the end of
the most recent fiscal quarter for which the Company has
regular quarterly or annual financial statements $800
million for any calculation made prior to the last day of
fiscal 2004 and $900 million thereafter.
(c) For clarity purposes only, all calculations made pursuant to
clause (6) of paragraph (b) of this Section shall be based upon the
Company's most recently available quarterly or annual financial
statements, as the case may be.
(d) The $1.02 increase (or decrease, as the case may be) in the
Permitted Dividend Amount per fiscal year for each share of Common
Stock issued and outstanding on the record date for any dividend in
excess of (or less than, as the case may be) the number of shares of
Common Stock issued and outstanding on January 10, 2001, as specified
earlier, shall be adjusted:
(1) in the case of a stock split, by multiplying such $1.02 by a
fraction, the numerator of which is the number of shares of
Common Stock issued and outstanding before such stock split
and the denominator of which is the number of shares of
Common Stock issued and outstanding after such stock split;
(2) in the case of a stock dividend, by multiplying such $1.02
by a fraction, the numerator of which is the number of
shares of Common Stock issued and outstanding before such
stock dividend and the denominator of which is the number of
shares of Common Stock issued and outstanding after such
stock dividend;
(3) in the case of a reverse stock split, by multiplying such
$1.02 by a fraction, the numerator of which is the number of
shares of Common Stock issued and outstanding before such
reverse stock split and the denominator of which is the
number of shares of Common Stock issued and outstanding
after such reverse stock split; and
(4) in the case of a reclassification, recapitalization, stock
consolidation or other similar transaction, as reasonably
determined by the Board of Directors of the Company.
Section 1016. Limitation on Transactions with Affiliates.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any
transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property
or services) with or for the benefit of any Affiliate of the Company
(other than the Company or a Restricted Subsidiary) unless such
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transaction or series of related transactions is entered into in good
faith and
(1) such transaction or series of related transactions is on
terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that
would be available in a comparable transaction in
arm's-length dealings with an unrelated third party,
(2) with respect to any transaction or series of related
transactions involving aggregate value in excess of $5
million the Company delivers an Officers' Certificate to the
Trustee certifying that such transaction or series of
related transactions complies with clause (1) above, and
(3) with respect to any transaction or series of related
transactions involving aggregate value in excess of $15
million, either
(a) such transaction or series of related transactions has
been approved by a majority of the Disinterested
Directors of the Board of Directors of the Company, or
in the event there is only one Disinterested Director,
by such Disinterested Director, or
(b) the Company delivers to the Trustee a written opinion
of an investment banking firm of national standing or
other recognized independent expert with experience
appraising the terms and conditions of the type of
transaction or series of related transactions for which
an opinion is required stating that the transaction or
series of related transactions is fair to the Company
or such Restricted Subsidiary from a financial point of
view;
provided, however, that this provision shall not apply to (i)
reasonable and customary fees and compensation paid to, and indemnity
provided on behalf of officers, directors, employees or consultants of
the Company or any Subsidiary as determined by the Board of Directors
of the Company or any Subsidiary or the senior management thereof in
good faith or (ii) any transaction, including the payment of
dividends, permitted as a Permitted Payment, Permitted Investment or
Restricted Payment pursuant to the covenant described in Section 1015.
Section 1017. Limitation on Sale of Assets.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, consummate an
Asset Sale unless (1) at least 75% of the consideration from such
Asset Sale other than Asset Swaps
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is received in cash or Cash Equivalents and (2) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the shares or assets
subject to such Asset Sale (as determined by the Board of Directors of
the Company and evidenced in a Board Resolution); provided that the
amount of:
(i) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary in connection
with such transferee that are within 20 days converted,
sold or exchanged by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received);
(ii) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in the Asset
Sale; and
(iii) any payment, or assumption, of Indebtedness which is
secured by the assets sold in the Asset Sale,
shall be deemed "cash" for purposes of this provision. The aggregate
fair market value of the Designated Noncash Consideration, taken
together with the fair market value at the time of receipt of all
other Designated Noncash Consideration received, may not exceed the
greater of (x) $70 million in aggregate or (y) 10% of the Company's
Consolidated Tangible Net Worth over the term of the Securities, at
the time of the receipt of the Designated Noncash Consideration (with
the fair market value being measured at the time received and without
giving effect to subsequent changes in value).
With respect to an Asset Swap constituting an Asset Sale, the
Company or any Restricted Subsidiary shall be required to receive in
cash (as such term is deemed to be defined for purposes of this clause
(a)) or Cash Equivalents an amount equal to 75% of the proceeds of the
Asset Sale which do not consist of like-kind assets acquired with the
Asset Swap.
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale are not required to be applied to repay permanently any
Indebtedness under the Credit Facility then outstanding as required by
the terms thereof, or the Company determines not to apply such Net
Cash Proceeds to the permanent prepayment of such Indebtedness under
the Credit Facility, or if no such Indebtedness under the Credit
Facility is then outstanding, then the Company or a Restricted
Subsidiary may within 30 days before or 360 days after the Asset Sale
invest an amount up to the Net Cash Proceeds in properties and other
assets that (as determined by the Board of Directors of the Company)
replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses
of the Company or its Restricted Subsidiaries existing on the date of
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the First Supplemental Indenture or in businesses reasonably related
or reasonably incidental thereto. The amount of such Net Cash Proceeds
not used or invested within 30 days before or 360 days after the Asset
Sale as set forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $20
million or more, the Company will apply the Excess Proceeds to the
repayment of the Securities and any other Pari Passu Indebtedness
outstanding with similar provisions requiring the Company to make an
offer to purchase such Indebtedness with the proceeds from any Asset
Sale as follows:
(A) the Company will make an offer to purchase (an "Offer")
from all Holders of the Securities in accordance with
the procedures set forth in this Indenture in the
maximum principal amount (expressed as a multiple of
$1,000) of Securities that may be purchased out of an
amount (the "Security Amount") equal to the product of
such Excess Proceeds multiplied by a fraction, the
numerator of which is the outstanding principal amount
of the Securities, and the denominator of which is the
sum of the outstanding principal amount (or accreted
value in the case of Indebtedness issued with original
issue discount) of the Securities and such Pari Passu
Indebtedness (subject to proration in the event such
amount is less than the aggregate Offered Price (as
defined herein) of all Securities tendered), and
(B) to the extent required by such Pari Passu Indebtedness
to permanently reduce the principal amount of such Pari
Passu Indebtedness (or accreted value in the case of
Indebtedness issued with original issue discount), the
Company will make an offer to purchase or otherwise
repurchase or redeem Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Debt
Amount") equal to the excess of the Excess Proceeds
over the Security Amount; provided that in no event
will the Company be required to make a Pari Passu Offer
in a Pari Passu Debt Amount exceeding the principal
amount (or accreted value) of such Pari Passu
Indebtedness plus the amount of any premium required to
be paid to repurchase such Pari Passu Indebtedness.
The offer price for the Securities will be payable in cash in an
amount equal to 100% of the principal amount of the Securities plus
accrued and unpaid interest, if any, to the date (the "Offer Date")
such Offer is consummated (the "Offered Price"), in accordance with
the procedures set forth in this Indenture. To the extent that the
aggregate Offered Price of the Securities tendered pursuant to the
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Offer is less than the Security Amount relating thereto or the
aggregate amount of Pari Passu Indebtedness that is purchased in a
Pari Passu Offer is less than the Pari Passu Debt Amount, the Company
may use any remaining Excess Proceeds for general corporate purposes.
If the aggregate principal amount of Securities and Pari Passu
Indebtedness surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities to be
purchased on a pro rata basis, with such Securities being purchased
only in denominations of $1,000 or multiples thereof. Upon the
completion of the purchase of all the Securities tendered pursuant to
an Offer and the completion of a Pari Passu Offer, the amount of
Excess Proceeds, if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant to
clause (c) above, the Securities and the Pari Passu Indebtedness shall
be purchased by the Company, at the option of the holders thereof, in
whole or in part in integral multiples of $1,000, on a date that is
not earlier than 30 days and not later than 60 days from the date the
notice of the Offer is given to holders, or such later date as may be
necessary for the Company to comply with the requirements under the
Exchange Act.
(e) The Company will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with an Offer.
(f) Subject to paragraph (e) above, within 30 days after the date
on which the amount of Excess Proceeds equals or exceeds $20 million,
the Company shall send or cause to be sent by first-class mail,
postage prepaid, to the Trustee and to each Holder, at his address
appearing in the Security Register, a notice stating or including:
(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's
Securities at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to have
his Securities purchased in accordance with paragraph
(c) of this Section;
(4) (i) 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, as applicable, and any
Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current
Reports describing Asset Sales otherwise described in
the offering materials (or
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corresponding successor reports) (or in the event the
Company is not required to prepare any of the foregoing
Forms, the comparable information required pursuant to
Section 1022), (ii) a description of material
developments, if any, in the Company's business
subsequent to the date of the latest of such Reports,
(iii) if material, appropriate pro forma financial
information, and (iv) such other information, if any,
concerning the business of the Company which the
Company in good faith believes will enable such Holders
to make an informed investment decision regarding the
Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002;
(7) that Securities must be surrendered prior to the Offer
Date to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section
1002 to collect payment;
(8) that any Securities not tendered will continue to
accrue interest and that unless the Company defaults in
the payment of the Offered Price, any Security accepted
for payment pursuant to the Offer shall cease to accrue
interest on and after the Offer Date;
(9) the procedures for withdrawing a tender; and
(10) that the Offered Price for any Security which has been
properly tendered and not withdrawn and which has been
accepted for payment pursuant to the Offer will be paid
promptly following the Offered Date.
(g) Holders electing to have Securities purchased hereunder will
be required to surrender such Securities at the address specified in
the notice on or prior to the Offer Date. Holders will be entitled to
withdraw their election to have their Securities purchased pursuant to
this Section 1017 if the Company receives, not later than the Offer
Date, a telegram, telex, facsimile transmission or letter setting
forth (1) the name of the Holder, (2) the certificate number of the
Security in respect of which such notice of withdrawal is being
submitted, (3) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by the
Holder as to which his election is to be withdrawn, (4) a statement
that such Holder is withdrawing his election to have such principal
amount of such Security purchased, and (5) the principal amount, if
any, of such Security (which shall be $1,000 or an integral multiple
thereof) that remains
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subject to the original notice of the Offer and that has been or will
be delivered for purchase by the Company.
(h) The Company shall (i) not later than the Offer Date, accept
for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (New York time) on the Business
Day following the Offer Date, deposit with the Trustee or with a
Paying Agent an amount of money in same day funds (or next day funds
if such deposit is made by 9:00 a.m. (New York time) on the date prior
to the Offer Date) sufficient to pay the aggregate Offered Price of
all the Securities or portions thereof which are to be purchased on
that date and (iii) not later than 10:00 a.m. (New York time) on the
Business Day following the Offer Date, deliver to the Paying Agent an
Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an
amount equal to the Offered Price of the Securities purchased from
each such Holder, and the Company shall execute and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the
Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Paying Agent at the Company's expense to
the Holder thereof. For purposes of this Section 1017, the Company
shall choose a Paying Agent which shall not be the Company.
Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed,
together with interest, if any, thereon, held by them for the payment
of the Offered Price; provided, however, that (x) to the extent that
the aggregate amount of cash deposited by the Company with the Trustee
in respect of an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, then the Trustee shall
hold such excess for the Company and (y) unless otherwise directed by
the Company in writing, no later than the second Business Day
following the Offer Date the Trustee shall return any such excess
(including, without limitation, monies deposited with respect to an
election which has been withdrawn in accordance with paragraph (h)) to
the Company together with interest or dividends, if any, thereon.
(i) Securities to be purchased shall, on the Offer Date, become
due and payable at the Offered Price and from and after such date
(unless the Company shall default in the payment of the Offered Price)
such Securities shall cease to bear interest. Upon surrender of any
such Security for purchase in accordance with the foregoing
provisions, such Security shall be paid by the Company at the Offered
Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Offer Date shall be payable to the
Person in whose name the Securities (or any Predecessor Securities) is
registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 307.
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(j) If any Security tendered for purchase shall not be so paid
upon surrender thereof by deposit of funds with the Trustee or a
Paying Agent in accordance with paragraph (h) above, the principal
thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Offer Date at the rate borne by such Security.
(k) Any Security that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent
(with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Security Registrar or the
Trustee duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
(l) The Company shall publicly announce the results of the Offer
on or as soon as practicable after the Offer Date.
Section 1018. Limitation on Issuances of Guarantees of Indebtedness.
(a) The Company will not cause or permit any Restricted
Subsidiary (which is not a Guarantor), directly or indirectly, to
guarantee, assume or in any other manner become liable with respect to
any Indebtedness of the Company or any Restricted Subsidiary unless
such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a Guarantee of
the Securities on the same terms as the guarantee of such Indebtedness
except that (A) such guarantee need not be secured unless required
pursuant to Section 1006 and (B) if such Indebtedness is by its terms
expressly subordinated to the Securities, any such assumption,
guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee of the Securities at least to the same extent
as such Indebtedness is subordinated to the Securities.
Notwithstanding the foregoing, a Subsidiary (which is not a Guarantor)
whether or not existing as of the date of the First Supplemental
Indenture, shall not have any obligation to provide a Guarantee of the
Securities or securities of any series issued under this Indenture,
except as set forth in this Section 1018.
(b) Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary of the Securities shall provide by its terms that it (and
all Liens securing the same) shall be automatically and
unconditionally released and discharged upon any conveyance, sale,
exchange or transfer, to any Person not an Affiliate of the Company,
of all of the Company's Capital Stock in, or all or
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substantially all the assets of, such Restricted Subsidiary, which
transaction is in compliance with the terms of this Indenture and such
Restricted Subsidiary is released from all guarantees, if any, by it
of other Indebtedness of the Company or any Restricted Subsidiaries
and, with respect to any Guarantees created after the date of the
First Supplemental Indenture, the release by the holders of the
Indebtedness of the Company described in clause (a) above of their
security interest or their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations
under such Indebtedness), at such time as (A) no other Indebtedness of
the Company has been secured or guaranteed by such Restricted
Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is secured or guaranteed by such Restricted
Subsidiary also release their security interest in or guarantee by
such Restricted Subsidiary (including any deemed release upon payment
in full of all obligations under such Indebtedness).
Section 1019. Limitation on Subsidiary Preferred Stock.
(a) The Company will not permit any Restricted Subsidiary of the
Company to issue, sell or transfer any Preferred Stock, except for (1)
Preferred Stock issued or sold to, held by or transferred to the
Company or a Restricted Subsidiary, and (2) Preferred Stock issued by
a Person prior to the time (A) such Person becomes a Restricted
Subsidiary, (B) such Person merges with or into a Restricted
Subsidiary or (C) a Restricted Subsidiary merges with or into such
Person; provided that such Preferred Stock was not issued or incurred
by such Person in anticipation of the type of transaction contemplated
by subclause (A), (B) or (C). This clause (a) shall not apply upon the
acquisition of all the outstanding Preferred Stock of such Restricted
Subsidiary in accordance with the terms of this Indenture.
(b) The Company will not permit any Person (other than the
Company or a Restricted Subsidiary) to acquire Preferred Stock of any
Restricted Subsidiary from the Company or any Restricted Subsidiary,
except upon the acquisition of all the outstanding Preferred Stock of
such Restricted Subsidiary in accordance with the terms of this
Indenture.
Section 1020. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary
to
(1) pay dividends or make any other distribution on its Capital
Stock or any other interest or participation in or measured
by its profits,
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(2) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary,
(3) make any Investment in the Company or any other Wholly Owned
Restricted Subsidiary or
(4) transfer any of its properties or assets to the Company or
any other Wholly Owned Restricted Subsidiary.
However, this covenant will not prohibit any encumbrance or
restriction (1) pursuant to an agreement in effect on the date of the
First Supplemental Indenture; (2) with respect to a Restricted
Subsidiary that is not a Restricted Subsidiary of the Company on the
date of the First Supplemental Indenture, in existence at the time
such Person becomes a Restricted Subsidiary of the Company and not
incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary, provided that such encumbrances and
restrictions are not applicable to the Company or any Restricted
Subsidiary or the properties or assets of the Company or any
Restricted Subsidiary other than such Subsidiary which is becoming a
Restricted Subsidiary; (3) under the Credit Facility; (4) pursuant to
any agreement governing any Indebtedness permitted by clause (8) of
the definition of Permitted Indebtedness as to the assets financed
with the proceeds of such Indebtedness; (5) pursuant to any agreement
permitted under clause (i) of the definition of Permitted Lien as to
the assets securing the Permitted Lien; (6) pursuant to intercompany
indebtedness incurred by a foreign Subsidiary owing to the Company or
a Restricted Subsidiary which Indebtedness does not exceed $10
million; (7) contained in any Acquired Indebtedness or other agreement
of an entity or related to assets acquired by or merged into or
consolidated with the Company or any Restricted Subsidiaries so long
as such encumbrance or restriction was not entered into in
contemplation of the acquisition, merger or consolidation transaction;
(8) under any agreement that extends, renews, refinances or replaces
the agreements containing the encumbrances or restrictions in the
foregoing clauses (1) through (7) or in this clause (8), provided that
the terms and conditions of any such encumbrances or restrictions are
no more restrictive in any material respect than those under or
pursuant to the agreement evidencing the Indebtedness so extended,
renewed, refinanced or replaced.
Section 1021. Limitation on Unrestricted Subsidiaries.
The Company may designate after the Issue Date any Subsidiary as
an "Unrestricted Subsidiary" under this Indenture (a "Designation")
only if:
(a) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation;
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56
(b) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation
(assuming the effectiveness of such Designation) pursuant to
the first paragraph of Section 1015 in an amount (the
"Designation Amount") equal to the greater of (1) the net
book value of the Company's interest in such Subsidiary
calculated in accordance with GAAP or (2) the Fair Market
Value of the Company's interest in such Subsidiary as
determined in good faith by the Company's Board of
Directors;
(c) the Company would be permitted under this Indenture to incur
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the covenant described under
Section 1014 at the time of such Designation (assuming the
effectiveness of such Designation);
(d) such Unrestricted Subsidiary does not own any Capital Stock
in any Restricted Subsidiary of the Company which is not
simultaneously being designated an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than
Unrestricted Subsidiary Indebtedness, provided that an
Unrestricted Subsidiary may provide a Guarantee for the
Securities; and
(f) such Unrestricted Subsidiary is not a party to any
agreement, contract, arrangement or understanding at such
time with the Company or any Restricted Subsidiary unless
the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company
or, in the event such condition is not satisfied, the value
of such agreement, contract, arrangement or understanding to
such Unrestricted Subsidiary shall be deemed a Restricted
Payment.
In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant
to Section 1015 for all purposes of this Indenture in the Designation
Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time
(a) provide credit support for, guarantee or subject any of its
property or assets (other than the Capital Stock of any
Unrestricted
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57
Subsidiary) to the satisfaction of, any Indebtedness of any
Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness), other
than Permitted Investments in Unrestricted Subsidiaries, or
(b) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary. For purposes of the foregoing, the
Designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be deemed to be the
Designation of all of the Subsidiaries of such Subsidiary as
Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time
of and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if
incurred at such time, have been permitted to be incurred
for all purposes of this Indenture; and
(c) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would
be Permitted Indebtedness), immediately after giving effect
to such proposed Revocation, and after giving pro forma
effect to the incurrence of any such Indebtedness of such
redesignated Subsidiary as if such Indebtedness was incurred
on the date of the Revocation, the Company could incur $1.00
of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the covenant described under
Section 1014.
All Designations and Revocations must be evidenced by a
resolution of the Board of Directors of the Company delivered to the
Trustee certifying compliance with the foregoing provisions.
Section 1022. Provision of Financial Statements.
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, the Company will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have
been required to file with the Commission pursuant to Section 13(a) or
15(d) if the Company were so subject, such documents to be filed with
the Commission on or prior to the date (the "Required Filing Date") by
which the Company would have been required so to file such documents
if the Company were so subject.
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58
The Company will also in any event (a) within 15 days of each
Required Filing Date (1) transmit by mail to all Holders, as their
names and addresses appear in the Security Register, without cost to
such Holders and (2) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Sections
13(a) or 15(d) of the Exchange Act if the Company were subject to
either of such Sections and (b) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any
prospective holder at the Company's cost.
If any Guarantor's financial statements would be required to be
included in the financial statements filed or delivered pursuant to
this Indenture if the Company were subject to Section 13(a) or 15(d)
of the Exchange Act, the Company shall include such Guarantor's
financial statements in any filing or delivery pursuant to this
Indenture.
Section 1023. Insurance.
The Company will, and will cause each of its Restricted
Subsidiaries to:
(a) maintain insurance on its property with financially sound and
reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles and self-insurance amounts)
customarily maintained, and against such risks as are typically
insured against in the same general area, by Persons of comparable
size engaged in the same or similar business as the Company and its
Restricted Subsidiaries, it being understood that the Company and its
Restricted Subsidiaries are self-insured in substantial amounts with
respect to various insurable risks; and
(b) maintain all worker's compensation, employer's liability
insurance or similar insurance as may be required under the laws of
any state or jurisdiction in which it may be engaged in business.
Section 1024. Fall Away Event.
In the event of the occurrence of a Fall Away Event, the
covenants and provisions described above under Section 1013, Section
1014, Section 1015, Section 1016, Section 1017, Section 1019, Section
1020, Section 1021 and Section 1022, the additional provisions
described under Article VIII, paragraphs (4) and (10) of Section 501
and provisions relevant thereto (including any definitions) shall each
no longer be in effect for the remaining term of the Securities;
provided that the covenant described within the last paragraph of
Section 1006 and the definitions relevant thereto shall thereafter
become in effect; provided that any Liens incurred prior to the Fall
Away Event shall be deemed
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59
permitted under such covenant whether or not such Liens would
otherwise be permitted.
As a result, upon the occurrence of a Fall Away Event, the
Holders of Securities will be entitled to substantially reduced
covenant protection, even if the Securities do not continue to be
rated at the Investment Grade level.
(P) By adding the following Section to Article XI:
Section 1108. Optional Redemption.
After April 1, 2005, the Company may redeem all or a portion of
the Securities, on not less than 30 nor more than 60 days' prior
notice, in amounts of $1,000 or an integral multiple thereof at the
following redemption prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period beginning April 1 of
the years indicated below:
YEAR PRICE
---- --------
2005................................................. 104.438%
2006................................................. 102.219%
and thereafter at 100% of the principal amount, in each case, together
with accrued and unpaid interest, if any, to the redemption date
(subject to the rights of holders of record on relevant record dates
to receive interest due on an interest payment date).
In addition, at any time prior to April 1, 2004, the Company, at
its option, may use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate
principal amount of Securities originally issued under this Indenture
at a redemption price equal to 108.875% of the aggregate principal
amount of the Securities redeemed, plus accrued and unpaid interest,
if any, to the redemption date (subject to the rights of holders of
record on relevant record dates to receive interest due on an interest
payment date). At least 65% of the initial aggregate principal amount
of Securities must remain outstanding immediately after the occurrence
of such redemption. In order to effect this redemption, the Company
must mail a notice of redemption no later than 30 days after the
closing of the related Public Equity Offering and must complete such
redemption within 60 days of the closing of the Public Equity
Offering.
If less than all of the Securities are to be redeemed, the
Trustee shall select the notes to be redeemed in compliance with the
requirements of the principal national security exchange, if any, on
which the Securities are listed, or if the Securities are not listed
by such method the Trustee shall deem fair and
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reasonable. Securities redeemed in part must be redeemed only in
integral multiples of $1,000. Redemption pursuant to the provisions
relating to a Public Equity Offering must be made on a pro rata basis
or on as nearly a pro rata basis as practicable (subject to the
procedures of The Depository Trust Company or any other depositary).
(Q) By amending Article XVI:
(a) by deleting Section 1604 (Release of Guarantors) in its
entirety; and
(b) by deleting Section 1605 (Additional Guarantors) in its
entirety.
(R) By amending the entire Base Indenture by deleting, in all
instances, the phrase "date of the indenture" and replacing it,
in all instances, with the phrase "date of the First Supplemental
Indenture"
SECTION 2. Attached as Exhibit A is the form of Security for the
Securities to be issued under this Indenture.
SECTION 3. The Base Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects ratified and confirmed, and the
Base Indenture and this First Supplemental Indenture shall be read, taken and
construed as one and the same instrument. All provisions included in this First
Supplemental Indenture supersede any similar provisions included in the Base
Indenture unless not permitted by law.
SECTION 4. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this First
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 5. All covenants and agreements in this First Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 6. In case any provision in this First Supplemental Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions (or of the other series
of Securities) shall not in any way be affected or impaired thereby.
SECTION 7. Nothing in this First Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of the Securities any benefit or any legal
or equitable right, remedy or claim under this First Supplemental Indenture.
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SECTION 8. This First Supplemental Indenture and each Security shall be
deemed to a contract made under the laws of the State of New York and this First
Supplemental Indenture and each such Security shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 9. All terms used in this First Supplemental Indenture not
otherwise defined herein that are defined in the Base Indenture shall have the
meanings set forth therein.
SECTION 10. This First Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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62
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
XXXX-XXXXX STORES, INC.
as Issuer
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
ASTOR PRODUCTS, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
CRACKIN' GOOD, INC.
as Guarantor
By: _______________________________
Name:
Title:
63
Attest:
___________________________________
Name:
Title:
DEEP SOUTH PRODUCTS, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
XXXXX PACKERS, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
64
MONTEREY CANNING CO.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
XXXX-XXXXX XXXXXXXXX, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
XXXX-XXXXX LOGISTICS, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
65
XXXX-XXXXX LOUISIANA, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
XXXX-XXXXX XXXXXXXXXX, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
XXXX-XXXXX PROCUREMENT, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
66
XXXX-XXXXX XXXXXXX, INC.
as Guarantor
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee,
By: _______________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
67
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ______________, 2001, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________ of XXXX-XXXXX STORES, INC., ASTOR
PRODUCTS, INC., CRACKIN' GOOD, INC., DEEP SOUTH PRODUCTS, INC., XXXXX PACKERS,
INC., MONTEREY CANNING CO., XXXX-XXXXX CHARLOTTE, INC., XXXX-XXXXX LOGISTICS,
INC., XXXX-XXXXX LOUISIANA, INC., XXXX-XXXXX XXXXXXXXXX, INC., XXXX-XXXXX
PROCUREMENT, INC., XXXX-XXXXX XXXXXXX, INC. each of which are corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
_________________________________________
Name:
Notary Public
State of
My Commission expires on
68
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ______________, 2001, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he/she is ___________________ of WILMINGTON TRUST COMPANY,
one of the corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he/she signed
his/her name thereto by like authority.
_________________________________________
Name:
Notary Public
State of
My Commission expires on
69
EXHIBIT A: FORM OF SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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.
[Face of the Note]
XXXX-XXXXX STORES, INC.
------------------
8 7/8% SENIOR NOTE DUE 2008
CUSIP NO. 974280 AB 5
No. __________ $300,000,000
Xxxx-Xxxxx Stores, Inc., a Florida corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________________ or registered assigns, the principal sum of
$300,000,000 United States dollars on April 1, 2008, at the office or agency of
the Company referred to below, and to pay interest thereon from March 29, 2001,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on April 1 and October 1 in each year,
commencing October 1, 2001 at the rate of 8-3/8% per annum, subject to
adjustments as described in the second following paragraph, in
70
United States dollars, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Security) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record Date, and may
either be paid to the Person in whose name this Security (or any Predecessor
Security) is registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in this Indenture.
Payment of the principal of, or any premium or interest on, this
Security, and exchange or transfer of the Security, will be made at the office
or agency of the Company in The City of New York maintained for that purpose, or
at such other office or agency as may be maintained for such purpose, in dollars
or other equivalent units of legal tender for payment of public or private debts
in the United States of America; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security is entitled to the benefits of Guarantees by each of the
Guarantors of the due and punctual payment and performance of the Guaranteed
Obligations made in favor of the Trustee for the benefit of the Holders.
Reference is hereby made to Article XVI of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of each of the Guarantors.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
officer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
71
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
Dated: XXXX-XXXXX STORES, INC.
By: _____________________________________
Title: __________________________________
Attest:
_____________________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Security is one of the 8 7/8% Senior Notes due 2008 referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By: _____________________________________
Authorized Signatory
72
[Reverse of the Note]
XXXX-XXXXX STORES, INC.
8 7/8% Senior Note due 2008
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Senior Notes due 2008 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $300,000,000, issued under and
subject to the terms of both an indenture, dated as of December 26, 2000 (herein
called the "Base Indenture") and a First Supplemental Indenture, dated as of
March 29, 2001 (herein called the "First Supplemental Indenture" and
collectively with the Base Indenture, the "Indenture") among the Company, the
Guarantors and Wilmington Trust Company, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which the Base Indenture, First Supplemental Indenture and all other indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities are subject to redemption at any time on or after April
1, 2005, at the option of the Company, in whole or in part, on not less than 30
nor more than 60 days' prior notice to the Holders by first-class mail, in
amounts of $1,000 or an integral multiple thereof, at the following redemption
prices (expressed as percentages of the principal amount), if redeemed during
the 12-month period beginning April 1 of the years indicated below:
REDEMPTION
YEAR PRICE
---- ----------
2005........................................... 104.438%
2006.......................................... 102.219%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant Regular Record Dates or Special Record
Dates to receive interest due on an Interest Payment Date).
In addition, at any time prior to April 1, 2004, the Company, at its
option, may use the net proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the aggregate principal amount of Securities
originally issued under the Indenture at a redemption price equal to 108.875% of
the aggregate principal amount of the Securities redeemed, plus accrued and
unpaid interest, if any, to the redemption date (subject to the rights of
holders of record on relevant record dates to receive interest due on an
interest payment date). At least 65% of the initial aggregate principal amount
of Securities must remain outstanding immediately after the occurrence of such
redemption. In order to effect this redemption, the Company must mail a
73
notice of redemption no later than 30 days after the closing of the related
Public Equity Offering and must complete such redemption within 60 days of the
closing of the Public Equity Offering.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities. Securities redeemed in part
must be redeemed only in integral multiples of $1,000. Redemption pursuant to
the provisions relating to a Public Equity Offering must be made on a pro rata
basis or on as nearly a pro rata basis as practicable (subject to the procedures
of DTC or any other depositary).
Upon the occurrence of a Change of Control Event, each Holder may
require the Company to purchase such Holder's Securities in whole or in part in
integral multiples of $1,000, at a purchase price in cash in an amount equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase, pursuant to a Change of Control Offer in accordance
with the procedures set forth in the Indenture.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale, which proceeds are not used to
repay any Indebtedness under the Credit Facility then outstanding or invested in
properties or other assets that replace the properties and assets that were the
subject of the Asset Sale or which will be used in the business of the Company
or its Restricted Subsidiaries existing on the date of the First Supplemental
Indenture or in businesses reasonably related or reasonably incidental thereto,
exceeds a specified amount the Company will be required to apply such proceeds
to the repayment of the Securities and certain Indebtedness ranking pari passu
in right of payment to the Securities which Securities and Indebtedness are
purchased at the option of the Holder as described in this Indenture.
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such Securities of
record as of the close of business on the Regular Record Date or Special Record
Date referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders or with the consent of
the Holders of 75% of the Securities) as therein provided, the amendment thereof
and the modification of the rights and
74
obligations of the Company and the Guarantors and the rights of the Holders
under the Indenture and the Securities and the Guarantees at any time by the
Company and the Trustee with the consent of the Holders of a specified
percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company and the Guarantors with certain provisions of the
Indenture and the Securities and the Guarantees and certain past Defaults under
the Indenture and the Securities and the Guarantees and their consequences. Any
such consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
The Securities are subject to defeasance or covenant defeasance in
accordance with the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, any
Guarantor or any other obligor on the Securities (in the event such Guarantor or
such other obligor is obligated to make payments in respect of the Securities),
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on, this Security at the times, place, and rate, and in the coin or
currency, herein prescribed, subject to the subordination provisions of the
Indenture.
This Security is a global Security and is exchangeable for a definitive
certificated Security only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as depository for the global Security and no
successor depositary is appointed by the Company within 90 days, (y) the
Company, in its sole discretion, executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (z)
there shall have occurred and be continuing an Event of Default with respect to
such Securities. Upon any such occurrence, if the beneficial owners of interests
in a global Security are entitled to exchange such interests for definitive
Securities, the Company shall deliver to the Trustee definitive securities and
the Trustee is then required to authenticate and make available for delivery, in
exchange for each portion of such surrendered global Security, a like aggregate
principal amount of definitive Securities.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, any Guarantor, the Trustee and any agent of the Company, any
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, any Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
75
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
76
SUBSIDIARY GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby absolutely, fully and unconditionally and irrevocably
guarantees, jointly and severally with each other Guarantor, to the Holder of
this Security the payment of principal of, and premium, if any, and interest on
this Security upon which these Subsidiary Guarantees are endorsed in the amounts
and at the time when due and payable, whether by declaration thereof, or
otherwise, and interest on the overdue principal and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture or the Securities, to the Holder of this
Security and the Trustee, all in accordance with and subject to the terms and
limitations of this Security and the Indenture. This Subsidiary Guarantee will
not become effective until the Trustee duly executes the certificate of
authentication on this Security. This Subsidiary Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof.
IN WITNESS WHEREOF, each of the Guarantors has caused this Subsidiary
Guarantee to be duly executed.
Dated:
ASTOR PRODUCTS, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
CRACKIN' GOOD, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
DEEP SOUTH PRODUCTS, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
77
XXXXX PACKERS, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
MONTEREY CANNING CO.
as Guarantor
By: ____________________________________
Title: _________________________________
XXXX-XXXXX CHARLOTTE, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
XXXX-XXXXX LOGISTICS, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
XXXX-XXXXX LOUISIANA, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
78
XXXX-XXXXX XXXXXXXXXX, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
XXXX-XXXXX PROCUREMENT, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
XXXX-XXXXX XXXXXXX, INC.
as Guarantor
By: ____________________________________
Title: _________________________________
Attest:
_____________________________________
