<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO
SCHEDULE 14D-l
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
CURTICE-BURNS FOODS, INC.
_______________________________________________________________________
(Name of Subject Company)
PF ACQUISITION CORP.
PRO-FAC COOPERATIVE, INC.
_______________________________________________________________________
(Bidder)
CLASS A COMMON STOCK, PAR VALUE $.99 PER SHARE
CLASS B COMMON STOCK, PAR VALUE $.99 PER SHARE
_______________________________________________________________________
(Title of Classes of Securities)
231382102
231382201
_______________________________________________________________________
(CUSIP Number of Classes of Securities)
ROY A. MYERS
PF ACQUISITION CORP.
PRO-FAC COOPERATIVE, INC.
90 LINDEN PLACE
P.O. BOX 682
ROCHESTER, NEW YORK 14603
(716) 383-1850
_______________________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
COPIES TO:
SCOTT F. SMITH, ESQ.
HOWARD, DARBY & LEVIN
1330 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
TELEPHONE: (212) 841-100
_______________________________________________________________________
OCTOBER 4, 1994
(Date Tender Offer First Published,
Sent or Given to Security Holders)
_______________________________________________________________________
Page 1 of __ Pages
Exhibit Index begins on Page 4
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Pro-Fac Cooperative, Inc., a New York cooperative corporation ('Pro-Fac'),
and its wholly owned subsidiary, Curtice-Burns Foods, Inc., a New York
corporation (the 'Company) and successor-in-interest to PF Acquisition Corp., a
New York corporation (the 'Purchaser'), hereby amend and supplement their
combined Tender Offer Statement on Schedule 14D-1 and Statement on Schedule 13D,
originally filed on October 4, 1994, as amended by Amendment No. 1 filed on
October 24, 1994 (the 'Statement'), with respect to an offer by the Purchaser to
purchase all outstanding shares of Class A Common Stock and Class B Common
Stock, par value $.99 per share, of the Company, as set forth in this Amendment
No. 2. Capitalized terms not defined herein have the meanings assigned thereto
in the Statement.
This amendment constitutes the final amendment to the Schedule 14D-1
required by General Instruction D to Schedule 14D-1 and, pursuant to General
Instruction F to Schedule 14D-1, is deemed to satisfy the reporting requirements
of Section 13(d) of the Securities Exchange Act of 1934, as amended, for all
Shares acquired pursuant to the Offer as reported in this amendment.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The response to Item 4 (a) and (b) is hereby amended by the addition of the
following paragraph:
The information set forth in the press release issued by Pro-Fac dated
November 3, 1994 (the 'Press Release'), a copy of which is attached hereto as
Exhibit (a)(10), is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
The response to Item 6 (a) and (b) is hereby amended by the addition of the
following paragraph:
The information set forth in the Press Release is incorporated herein by
reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
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<S> <C>
(a)(10) Text of press release issued by Pro-Fac dated November 3, 1994.
(b)(3) Term Loan, Term Loan Facility and Seasonal Loan Agreement, dated as of November
3, 1994, among the Company, the Purchaser and Springfield Bank for Cooperatives.
(b)(4) Purchase Agreement, dated November 3, 1994, among Pro-Fac, the Purchaser and
each of the purchasers named on the signature pages thereof (the "Note Purchasers").
(b)(5) Registration Rights Agreement, dated as of November 3, 1994, among Pro-Fac, the
Purchaser, the Note Purchasers and each of the subsidiary guarantors listed on the
signature pages thereof (the "Subsidiary Guarantors").
(b)(6) Indenture, dated as of November 3, 1994, among Pro-Fac, the Purchaser and IBJ
Schroder Bank & Trust Company, as trustee, as amended by the First Supplemental
Indenture, dated as of November 3, 1994.
</TABLE>
2
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement
is true, complete and correct.
Dated: November 3, 1994
CURTICE-BURNS FOODS, INC.
(successor-in-interest to PF Acquisition Corp.)
By/s/ Roy A. Myers
-----------------------------------------------
Name: Roy A. Myers
Title: Chief Executive Officer
PRO-FAC COOPERATIVE, INC.
By/s/ Roy A. Myers
-----------------------------------------------
Name: Roy A. Myers
Title: General Manager
3
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STATEMENT OF DIFFERENCES
The section symbol shall be expressed as SS.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Name
<S> <C>
(a)(10) Text of press release issued by Pro-Fac dated November 3, 1994.
(b)(3) Term Loan, Term Loan Facility and Seasonal Loan Agreement, dated as of November
3, 1994, among the Company, the Purchaser and Springfield Bank for Cooperatives.
(b)(4) Purchase Agreement, dated November 3, 1994, among Pro-Fac, the Purchaser and
each of the Note Purchasers.
(b)(5) Registration Rights Agreement, dated as of November 3, 1994, among Pro-Fac, the
Purchaser, the Note Purchasers and the Subsidiary Guarantors.
(b)(6) Indenture, dated as of November 3, 1994, among Pro-Fac, the Purchaser and IBJ
Schroder Bank & Trust Company, as trustee, as amended by the First Supplemental
Indenture, dated as of November 3, 1994.
</TABLE>
4
<PAGE>
Exhibit (a)(10)
PRO-FAC COOPERATIVE COMPLETES ACQUISITION OF CURTICE BURNS FOODS; ROY A. MYERS
NAMED PRESIDENT AND CEO OF CURTICE BURNS
ROCHESTER, NEW YORK November 3, 1994...Pro-Fac Cooperative, Inc., an
agricultural marketing cooperative, today announced that it has completed its
acquisition of Curtice-Burns Foods, Inc. (AMEX:CBI), and that Curtice Burns has
become a wholly owned subsidiary of Pro-Fac. On November 2, 1994, Pro-Fac's
tender offer for Curtice Burns expired, with 6,229,442 shares of Class A and
2,046,997 shares of Class B Common Stock of Curtice Burns (or approximately 94%
and 99%, respectively, of the total number of outstanding shares of Class A and
Class B Common Stock of Curtice Burns) having been validly tendered and not
withdrawn. All such tendered shares were accepted for payment by PF Acquisition
Corp., a wholly owned subsidiary of Pro-Fac, and will be paid for promptly. On
November 3, 1994, PF Acquisition merged into Curtice Burns, making Curtice Burns
a wholly owned subsidiary of Pro-Fac.
Roy A. Myers, who has served as general manager of Pro-Fac since 1987, has
been named president and chief executive officer of Curtice Burns, replacing J.
William Petty, who has resigned. Pro-Fac and Curtice Burns will continue to
operate under two separate boards. The Pro-Fac Board of Directors will remain
unchanged, and a new Curtice Burns Board, consisting of seven directors, has
been appointed and is now in place.
Financing for the offer was obtained through approximately $235 million of
seasonal and term senior bank financing from Springfield Bank for Cooperatives,
and from the issuance of $160 million in senior subordinated debt securities
issued to qualified institutional buyers. The bonds will carry an annual
interest rate of 12 1/4%. In addition, Pro-Fac contributed approximately $133
million in capital to complete the transaction. Pro-Fac launched its tender
offer to acquire all of the shares of Class A and Class B Common Stock of
Curtice Burns at a price of $19 per share in cash on October 4, 1994.
'We are delighted that the merger is now completed,' Myers said, 'and that
Pro-Fac and Curtice Burns can continue moving forward together and growing this
fine business, just as they have done for the past three decades. On behalf of
Pro-Fac, I would like to thank
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everyone who has worked so hard over the past several months to help us
successfully reach this conclusion. It is a great pleasure to once again
completely focus our attention to business as usual at Curtice Burns and
Pro-Fac.'
Myers will be a director on the new Curtice Burns Board, along with the
following members: Robert V. Call, president of the Pro-Fac board and a Batavia,
New York vegetable, fruit and grain grower; Bruce R. Fox, director and treasurer
of Pro-Fac, and a fruit and vegetable grower in Shelby, Michigan; Steven D.
Koinzan, a Pro-Fac director and a popcorn, fieldcorn and soybean farmer in
Valentine, Nebraska; Cornelius D. Harrington, Jr., retired president of the Bank
of New England-West in Springfield, Massachusetts; William B. McKnight, Jr., a
management consultant and former executive with Nabisco Foods Group, of Far
Hills, New Jersey; and Frank M. Stotz, Rochester, New York, retired senior vice
president of finance, Bausch & Lomb Inc.
'Pro-Fac is deeply committed to the two-board structure,' commented Pro-Fac
president Call, 'in order to provide the clearly-defined responsibilities
necessary between the marketing and agricultural sides of the business. This new
Curtice Burns Board represents the best of both worlds - the strong management
expertise needed to run the business combined with an understanding of key
agricultural issues. We welcome the new directors and look forward to working
together in the coming years.'
Pro-Fac Cooperative was founded in 1961 and now has 707 members located
across the country. Its members produce a variety of commodities that are
processed and marketed by Curtice Burns Foods.
Curtice Burns Foods processes and markets 21 product lines of regional
branded, private label and foodservice products through six autonomously managed
divisions located throughout the United States and Western Canada. Net sales in
Fiscal 1994 were approximately $829 million.
<PAGE>
Exhibit (b)(3)
- --------------------------------------------------------------------------------
TERM LOAN, TERM LOAN FACILITY AND SEASONAL LOAN AGREEMENT
by and among
PF ACQUISITION CORP.,
CURTICE-BURNS FOODS, INC.
and
SPRINGFIELD BANK FOR COOPERATIVES
Dated as of November 3, 1994
- --------------------------------------------------------------------------------
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms............................................................. 1
Section 1.2 Accounting Terms.......................................................... 15
SECTION 2. AMOUNT AND TERMS OF THE LOANS
Section 2.1 Term Loan................................................................. 15
Section 2.2 Term Note................................................................. 15
Section 2.3 Amortization of Term Loan................................................. 16
Section 2.4 Term Loan Facility........................................................ 16
Section 2.5 Term Loan Facility Note................................................... 16
Section 2.6 Amortization of Term Loan Facility Loans.................................. 17
Section 2.7 Seasonal Loan Facility.................................................... 17
Section 2.8 Seasonal Loan Note........................................................ 17
Section 2.9 Repayment of Seasonal Loans............................................... 17
Section 2.10 Annual Repayment Period................................................... 18
Section 2.11 Notice and Manner of Borrowing............................................ 18
Section 2.12 Conversions and Renewals.................................................. 19
Section 2.13 Interest.................................................................. 20
Section 2.14 Fees...................................................................... 23
Section 2.15 Authorization for Notes................................................... 23
Section 2.16 Prepayments; Prepayment Fee............................................... 23
Section 2.17 Method of Payment......................................................... 24
Section 2.18 Use of Proceeds........................................................... 25
Section 2.19 Illegality................................................................ 25
Section 2.20 Impossibility............................................................. 26
Section 2.21 Increased Cost............................................................ 26
Section 2.22 [Intentionally Omitted]................................................... 27
Section 2.23 Funding Loss Indemnification.............................................. 27
Section 2.24 Guaranties................................................................ 28
Section 2.25 Security.................................................................. 28
SECTION 3. LETTERS OF CREDIT
Section 3.1 Letter of Credit Accommodations........................................... 30
Section 3.2 Conditions Precedent...................................................... 30
Section 3.3 Obligations............................................................... 31
Section 3.4 Reimbursement Obligations................................................. 31
Section 3.5 Indemnification........................................................... 32
Section 3.6 Fees and Commissions...................................................... 32
Section 3.7 L/C Limit................................................................. 32
Section 3.8 Exculpation and Release................................................... 33
Section 3.9 Compliance with Law; Borrower's Risk...................................... 33
</TABLE>
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<TABLE>
<S> <C> <C> <C>
SECTION 4. CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Loans and Letter of Credit
Accommodations as of Closing Date....................................... 34
Section 4.2 Conditions Precedent to All Loans and Letter of Credit
Accommodations.......................................................... 38
SECTION 5. REPRESENTATIONS AND WARRANTIES
Section 5.1 Incorporation, Good Standing, and Due Qualification....................... 39
Section 5.2 Corporate Power and Authority............................................. 39
Section 5.3 Legally Enforceable Agreement............................................. 39
Section 5.4 Labor Disputes and Acts of God............................................ 39
Section 5.5 Other Agreements.......................................................... 40
Section 5.6 Litigation................................................................ 40
Section 5.7 No Defaults on Outstanding Judgments or Orders............................ 40
Section 5.8 Ownership and Liens....................................................... 40
Section 5.9 Subsidiaries and Ownership of Stock....................................... 40
Section 5.10 ERISA..................................................................... 41
Section 5.11 Operation of Business..................................................... 41
Section 5.12 Taxes..................................................................... 41
Section 5.13 Debt...................................................................... 41
Section 5.14 Environment............................................................... 42
Section 5.15 Solvency.................................................................. 43
SECTION 6. AFFIRMATIVE COVENANTS
Section 6.1 Maintenance of Existence.................................................. 43
Section 6.2 Maintenance of Records.................................................... 43
Section 6.3 Maintenance of Properties................................................. 44
Section 6.4 Conduct of Business....................................................... 44
Section 6.5 Maintenance of Insurance.................................................. 44
Section 6.6 Compliance With Laws...................................................... 44
Section 6.7 Right of Inspection....................................................... 44
Section 6.8 Environment............................................................... 44
Section 6.9 Monthly Borrowing Base Certificates....................................... 45
Section 6.10 Title Reports, Title Insurance and Survey................................. 45
SECTION 7. NEGATIVE COVENANTS
Section 7.1 Liens..................................................................... 45
Section 7.2 Debt...................................................................... 48
Section 7.3 Mergers, Etc.............................................................. 49
Section 7.4 Leases.................................................................... 49
Section 7.5 Sale and Leaseback........................................................ 49
Section 7.6 [Intentionally Omitted]................................................... 50
Section 7.7 Sale of Assets............................................................ 50
Section 7.8 Investments............................................................... 50
</TABLE>
ii
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<TABLE>
<S> <C> <C> <C>
Section 7.9 Guaranties, Etc........................................................... 51
Section 7.10 Transactions With Affiliates.............................................. 51
Section 7.11 Fiscal Year............................................................... 51
SECTION 8. INVESTMENT BY BORROWER IN STOCK OF BANK
Section 8.1 Initial Investment in Class C Stock....................................... 51
Section 8.2 Quarterly Investment in Class C Stock..................................... 52
Section 8.3 Security for Bank Stock Purchase Obligations.............................. 52
Section 8.4 Pledge of Bank Stock and Patron's Equities................................ 52
SECTION 9. EVENTS OF DEFAULT
Section 9.1 Events of Default......................................................... 53
Section 9.2 Remedies.................................................................. 56
SECTION 10. MISCELLANEOUS
Section 10.1 Account Stated............................................................ 57
Section 10.2 Amendments, Etc........................................................... 57
Section 10.3 Notices................................................................... 57
Section 10.4 No Waiver................................................................. 58
Section 10.5 Successors and Assigns.................................................... 58
Section 10.6 Assignments and Participations............................................ 58
Section 10.7 Costs, Expenses, and Taxes................................................ 59
Section 10.8 Integration............................................................... 59
Section 10.9 Indemnity................................................................. 59
Section 10.10 Governing Law............................................................. 60
Section 10.11 Consent to Jurisdiction................................................... 60
Section 10.12 Waiver of Jury Trial...................................................... 60
Section 10.13 [Intentionally Omitted]................................................... 60
Section 10.14 Severability of Provisions................................................ 60
Section 10.15 Headings.................................................................. 60
Section 10.16 Counterparts.............................................................. 61
</TABLE>
iii
<PAGE>
SCHEDULES AND EXHIBITS
<TABLE>
<S> <C> <C>
Schedule 1.1 -- Subsidiary Guarantors
Schedule 2.25(a)(iv) -- List of Borrower's Real Property Collateral
Schedule 2.25(c)(ii) -- List of Subsidiaries Real Property Collateral
Schedule 3.1 -- List of Existing Letters of Credit
Schedule 3.2 -- Letter of Credit Fees and Commissions
Schedule 4.1(i) -- List of Uniform Commercial Code Filing Jurisdictions
Schedule 4.1(m) -- List of Borrower's and Subsidiaries' Jurisdictions of Incorporation and Qualification
as a Foreign Corporation
Schedule 4.1(q) -- Permitted Transactions
Schedule 5.5 -- Agreements with Material Adverse Effect
Schedule 5.6 -- Litigation
Schedule 5.9 -- List of Subsidiaries and Ownership of Capital Stock Thereof
Schedule 5.10 -- Exceptions to ERISA Minimum Plan Funding Compliance
Schedule 5.12 -- Outstanding Tax Returns and/or Unpaid Tax Liabilities
Schedule 5.13 -- List of Credit Agreements, Etc.
Schedule 5.14 -- Exceptions to Environmental Law Compliance
Schedule 7.2(b) -- Permitted Debt
Exhibit A -- Form of Term Note
Exhibit B -- Form of Term Loan Facility Note
Exhibit C -- Form of Seasonal Loan Note
Exhibit D -- Form of Parent Guaranty
Exhibit E -- Form of Subsidiaries Guaranty
</TABLE>
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<TABLE>
<S> <C> <C>
Exhibit F -- Form of Borrower Security Agreement
Exhibit G -- Form of Borrower Trademark Security Agreement
Exhibit H -- Form of Borrower Patent Security Agreement
Exhibit I -- Form of Parent Security Agreement
Exhibit J -- Form of Subsidiaries Security Agreement
Exhibit K -- Form of Opinion of Howard, Darby and Levin
Exhibit L -- Form of Opinion of Harris, Beach & Wilcox
Exhibit M -- Form of Borrowing Base Certificate
</TABLE>
ii
<PAGE>
TERM LOAN, TERM LOAN FACILITY AND SEASONAL LOAN AGREEMENT
TERM LOAN, TERM LOAN FACILITY AND SEASONAL LOAN AGREEMENT dated as of
November 3, 1994 between PF ACQUISITION CORP., a New York corporation ('PF'),
and CURTICE-BURNS FOODS, INC., a New York corporation, ('CURTICE-BURNS', and
together with PF, individually and collectively, jointly and severally, the
'BORROWER') and SPRINGFIELD BANK FOR COOPERATIVES, a corporation established
under the laws of the United States of America and continuing as a
federally-chartered instrumentality of the United States under the Farm Credit
Act of 1971, as amended (together with its permitted successors and assigns, the
'BANK').
- ----------------------------------------------------------
WITNESSETH:
WHEREAS, PF is a wholly-owned subsidiary of Pro-Fac Cooperative, Inc.
('PARENT'), a New York cooperative corporation and an eligible farmers'
cooperative association as defined by the Farm Credit Act of 1971, as amended;
WHEREAS, PF and Curtice-Burns have entered into the Merger Agreement (as
defined below):
WHEREAS, PF and Curtice-Burns have requested the Bank to provide financial
accommodations, including financial accommodations required to consummate the
transactions contemplated by the Merger Agreement, and the Bank has agreed to
provide such financial accommodations upon the terms and subject to the
conditions of this Agreement;
WHEREAS, Curtice-Burns will be the survivor of the merger of PF with and
into Curtice-Burns upon consummation of such merger;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have the same
meaning when used in the plural and vice versa):
'ACQUISITION FACILITY FEE' shall have the meaning assigned to such
term in Section 2.14.
'ADDITIONAL COSTS' shall have the meaning assigned to such term in
Section 2.21.
<PAGE>
'AFFILIATE' means any Person (A) which directly or indirectly controls, or
is controlled by, or is under common control with the Borrower or a Subsidiary;
(B) which directly or indirectly beneficially owns or holds five percent (5%) or
more of any class of voting stock of the Borrower or any Subsidiary; or (C) five
percent (5%) or more of the voting stock of which is directly or indirectly
beneficially owned or held by the Borrower or a Subsidiary; provided that the
Bank shall not be deemed an Affiliate of Parent or any of its Subsidiaries. The
term 'control' means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise.
'AGREEMENT' means this Term Loan, Term Loan Facility and Seasonal Loan
Agreement, as amended, supplemented, or modified from time to time.
'ANNUAL CASH SWEEP' means, for any Fiscal Year of the Parent, an amount
equal to eighty percent (80%) of the following amount calculated with respect to
the Parent on a consolidated basis: net income after taxes and interest before
patronage distribution, plus depreciation (excluding depreciation of Capital
Leases), amortization (including amortization of deferred finance charges), and
adjustments to reconcile net income to net cash provided by operating activities
made in accordance with GAAP, less scheduled principal installments payable and
paid during such Fiscal Year with respect to the Term Loan, capital expenditures
made during such Fiscal Year, Restricted Payments (as defined in the Parent
Guaranty) made to the holders of preferred and common stock of the Parent and
that are not in violation of paragraph 9.6 of the Parent Guaranty, cash
dividends paid to the holders of preferred stock of the Borrower, and cash
patronage payments made to the members of the Parent for such Fiscal Year.
'BANK STOCK' shall have the meaning assigned to such term in Section 8.1.
'BANKRUPTCY CODE' shall mean title 11 of the united states code as enacted
in 1978, as the same may have heretofore been or may hereafter be amended,
recodified, modified or supplemented, together with all rules, regulations and
interpretations thereunder or related thereto.
'BORROWER' shall have the meaning assigned to such term in the first
sentence of this Agreement.
'BORROWER MORTGAGES' shall have the meaning assigned to such term in
Section 2.25.
'BORROWER PATENT SECURITY AGREEMENT' shall have the meaning assigned to
such term in Section 2.25.
'BORROWER SECURITY AGREEMENT' shall have the meaning assigned to such term
in Section 2.25.
'BORROWER TRADEMARK SECURITY AGREEMENT' shall have the meaning assigned to
such term in Section 2.25.
'BORROWING BASE' shall mean, as of any date of determination, an amount
equal to:
2
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(i) sixty percent (60%) of the face amount of the Eligible Accounts
as of such date,
plus (ii) fifty percent (50%) of the amount of the Eligible
Inventory as of such date, valued at the lower of its cost (calculated
on a first-in-first-out basis) or market value.
'BORROWING BASE CERTIFICATE' shall have the meaning assigned to such
term in Section 6.9.
'BUSINESS DAY' means any day other than a Saturday, Sunday, or other
day on which commercial banks in New York City are authorized or required
to close under the laws of the State of New York and, if the applicable day
relates to a LIBOR Loan, LIBOR Interest Period, or notice with respect to a
LIBOR Loan, a day on which dealings in Dollar deposits are also carried on
in the London Interbank Market and banks are open for business in London.
'CAPITAL LEASES' means all leases which have been or should be
capitalized on the books of the lessee in accordance with GAAP.
'CHANGE OF CONTROL' means the occurrence of any of the following,
other than in connection with the Offer or the Merger: (a) the sale, lease
or transfer, in one or a series of related transactions, of all or
substantially all of the Parent's or the Borrower's assets to any Person or
group (as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended), (b) the consummation of any transaction the
result of which is that any Person or group (as such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) owns,
directly or indirectly, (i) more than fifty percent (50%) of the voting
power of the voting stock of the Parent or the Borrower or (ii) more than
thirty percent (30%) of the voting power of the voting stock of the
Borrower if the Parent owns, directly or indirectly, a lesser percentage
than such Person or group of the voting power of the voting stock of the
Borrower, (c) the first date on which any Person or group (as defined
above) shall have elected, or caused to be elected, a sufficient number of
its or their nominees to the Board of Directors of the Parent or the
Borrower such that the nominees so elected (regardless of when elected)
shall collectively constitute a majority of the Board of Directors of the
Parent or the Borrower, as the case may be or (d) for a period of
one-hundred-twenty (120) consecutive days, the number of Disinterested
Directors on the Board of Directors of the Borrower being less than the
greater of (A) two and (B) the number of the directors of the Borrower who
are Parent directors. 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 Parent or the Borrower shall be deemed to be a transfer
of such portion of the voting stock owned by such entity as corresponds to
the portion of the equity of such entity that has been so transferred.
'CLOSING DATE' means November 3, 1994 or such other date as may be
agreed upon by the parties hereto.
'CODE' means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations and published interpretations thereof.
3
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'COLLATERAL' means all property which is subject or is to be subject
to the Lien granted by any Obligor pursuant to the Security Documents.
'COMMITMENT' means the Bank's obligation to make Loans to the Borrower
pursuant to Section 2.1, 2.4 and 2.7 in the amounts referred to therein and
to provide the Letter of Credit Accommodations described in Section 3.1,
all upon and subject to the terms and provisions of this Agreement.
'COMMITMENT FEE' shall have the meaning assigned to such term in
Section 2.14.
'COMMONLY CONTROLLED ENTITY' means an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 414(b) or 414(c) of the Code.
'CURTICE-BURNS' shall have the meaning assigned to such term in the
first sentence of this Agreement.
'DEBT' means, with respect to any Person, without duplication, all
items which, in accordance with GAAP, should be included in determining
total liabilities as shown on the liability side of a balance sheet as of
the date on which such Debt is to be determined and includes, whether or
not so reflected, (a) indebtedness or liability for borrowed money; (b)
obligations evidenced by bonds, debentures, notes, or other similar
instruments; (c) obligations for the deferred purchase price of property or
services (including trade obligations arising in the ordinary course of
business, deferred compensation arrangements for employees and obligations
under the Marketing Agreement); (d) all indebtedness arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though 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); (e) obligations as
lessee under Capital Leases; (f) current liabilities in respect of unfunded
vested benefits under Plans covered by ERISA; (g) monetary obligations
under letters of credit; (h) monetary obligations under acceptance
facilities; (i) all guaranties, endorsements (other than for collection or
deposit in the ordinary course of business), and other contingent
obligations to assure a creditor against loss.
'DEFAULT' means any event or condition that would become an Event of
Default after notice, or passage of time, or both.
'DISCOUNT' shall have the meaning assigned to such term in Section
2.13(c).
'DISINTERESTED DIRECTORS' means directors of the Borrower who are not
affiliates of either the Borrower or the Parent.
'DOLLARS' and the sign '$' mean lawful money of the United States of
America.
'ELIGIBLE ACCOUNTS' means accounts owing to Borrower or any Subsidiary
now existing or hereafter arising, each of which accounts meets the
following specifications at the time it comes into existence and continues
to meet the same until it is collected in full:
4
<PAGE>
(a) Each of the accounts arose from bona fide completed
transactions and is due and payable in full within thirty (30) days, and
not more than ninety (90) days have elapsed since the date of the
invoice therefor;
(b) Each of the accounts arose from the sale of goods or from the
performance of services by Borrower or a Subsidiary and each of the
accounts is evidenced by such agreements, invoices, shipping documents,
or other instruments ordinarily used in the trade as shall be reasonably
satisfactory to the Bank to the extent no return, rejection or
repossession has occurred with respect to such goods or services;
(c) Each of the accounts is not subject to any Lien (other than
those granted to the Bank) or to any setoffs, counterclaims or disputes
existing with respect thereto and there are no other facts existing or
threatened which would impair or delay the collectibility of all or any
portion thereof;
(d) No information has come to the attention of the Borrower or the
Subsidiary that owns the account to indicate that the account is not a
valid and legally enforceable obligation of the account debtor or that
it is subject to credit, allowance, defense, offset, counterclaim or
adjustment by the account debtor, other than any discount allowed for
prompt payment;
(e) Each of the accounts arose in the ordinary course of business
of the Borrower or the Subsidiary that owns such account and no notice
of the bankruptcy, insolvency, failure, or suspension or termination of
business of the account debtor has been received by the Borrower or such
Subsidiary;
(f) The account debtor on each of the accounts is not an Affiliate
of the Borrower or the Subsidiary;
(g) Each of the accounts otherwise conforms, to the extent
applicable, to all representations, warranties and covenants of this
Agreement and the other Loan Documents;
(h) The amounts of the accounts reported to the Bank are absolutely
owing to the Borrower or a Subsidiary, as the case may be, and do not
arise from sales or consignment, guaranteed sale or other terms under
which payment by the account debtors may be conditional or contingent;
and
(i) Accounts owed by a single account debtor and/or its affiliates
do not represent more than fifteen percent (15%) of all otherwise
Eligible Accounts.
For purposes of this definition, all accounts now or hereafter owned
by Nalley's Canada Limited, other than accounts arising from sales to
account debtors located in the United States, shall in no event constitute
Eligible Accounts. Any accounts that are not Eligible Accounts shall
nevertheless be and remain at all times a part of the Collateral.
'ELIGIBLE INVENTORY' means that inventory consisting of finished goods
held for resale in the ordinary course of business of the Borrower or a
Subsidiary that, at any time when eligibility is to be determined, meets
all of the following requirements:
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(a) inventory that, to the extent applicable, complies in all
material respects with all representations, warranties, and covenants
and other applicable provisions of this Agreement and the other Loan
Documents;
(b) inventory that is subject to the first perfected security
interest of the Bank and no other liens or security interests, except
Permitted Liens;
(c) inventory that is merchantable and fit for sale;
(d) inventory that is not consigned to the Borrower or the
Subsidiaries;
(e) inventory that does not consist of packaging or shipping
materials, except to the extent that packaging is included in finished
goods;
(f) inventory that meets, in all material respects, all standards
imposed by any governmental agency or departmental division thereof
having regulatory authority over such inventory, its use or sale;
(g) inventory that does not consist of bill and hold goods and/or
defective goods;
(h) inventory located at premises in the continental United States
that are owned or leased by the Borrower or a Subsidiary;
(i) inventory that is not subject to a Lien arising under the 'FSA'
or 'PACA', as each of said terms is defined in the Borrower Security
Agreement.
For purposes of this definition, all inventory now or hereafter owned
by Nalley's Canada Limited located outside of the United States shall in no
event constitute Eligible Inventory. Any inventory that is not Eligible
Inventory shall nevertheless be and remain at all times part of the
Collateral.
'EXISTING LETTERS OF CREDIT' shall have the meaning assigned to such
term in Section 3.1.
'ERISA' means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published
interpretations thereof.
'EVENT OF DEFAULT' shall have the meaning assigned to such term in
Section 9.1.
'FINANCING STATEMENTS' shall have the meaning assigned to such term in
Section 4.1.
'FISCAL YEAR' means each fiscal year ending on the last Saturday of
June.
'FIXED RATE LOANS' means, collectively, Treasury-Based Loans and LIBOR
Loans.
'FIXED RATE PREPAYMENT' shall have the meaning assigned to such term
in Section 2.16.
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'FIXED RATE PROGRAM LOANS' shall have the meaning assigned to such term in
Section 2.13.
'FUNDING DATE' shall mean, with respect to any Term Loan Facility Loan or
any Seasonal Loan, the date of the funding thereof by the Bank, and in the case
of a Fixed Rate Loan that is continued or converted from one type of Fixed Rate
Loan to another type of Fixed Rate Loan, the first day of the Interest Period
with respect thereto.
'GAAP' means generally accepted accounting principles in the United States.
'GOOD FAITH' means honesty in fact in the conduct or transaction concerned,
without regard to whether standards which might be deemed commercially
reasonable have been observed.
'GUARANTIES' means collectively, the Parent Guaranty and the Subsidiaries
Guaranty.
'GUARANTORS' means, collectively, the Parent and the Subsidiary Guarantors.
'INSOLVENCY EVENT' shall have the meaning assigned to such term in Section
9.1.
'INTEREST PERIOD' means (1) with respect to any LIBOR Loan, the period
commencing on the date such Loan is made and ending, as the Borrower may select
pursuant to Section 2.11, on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, and (2) with respect to any
Treasury-Based Loan, the period commencing on the Funding Date for such Loan and
ending, as the Borrower may select pursuant to Section 2.12, on the numerically
corresponding day in the ninth calendar month thereafter or on any of the first
through tenth anniversaries, inclusive, of such Funding Date; provided that all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(a) Each such Interest Period that commences on the last Business
Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month;
(b) No Interest Period may extend beyond the Termination Date or,
in the case of Seasonal Loans, the date on which all Seasonal Loans must
be repaid in full pursuant to Section 2.9;
(c) No Interest Period may extend beyond a principal repayment date
for the Term Loan and the Term Loan Facility Loans, respectively,
unless, after giving effect thereto, the aggregate principal amount of
the LIBOR Loans and Treasury Based Rate Loans having Interest Periods
that end after such principal repayment date shall be equal to or less
than the principal amount to be outstanding under the Term Loan or the
Term Loan Facility, as the case may be, after such principal repayment
date; and
(d) If an Interest Period would end on a day that is not a Business
Day, such Interest Period shall end on the immediately preceding
Business Day.
'L/C LIMIT' shall have the meaning assigned to such term in Section
3.7.
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'LETTER OF CREDIT ACCOMMODATIONS' shall have the meaning assigned to
such term in Section 3.1.
'LETTER OF CREDIT FACILITY' shall have the meaning assigned to such
term in Section 3.1.
'LETTER OF CREDIT LIABILITY' means, at any time, the sum of (a) the
Reimbursement Obligations, plus (b) the aggregate undrawn face amount of
Letters of Credit then outstanding, plus (c) the aggregate amount of all
other commitments or obligations relating to the Letter of Credit
Accommodations made or incurred by the Bank for the account or benefit of
the Borrower.
'LIABILITIES' means, at any given time, all liabilities of Borrower
and its Affiliates on a combined basis which would be classified as
liabilities under GAAP.
'LIBOR LOANS' means any Loan, when and to the extent that the interest
rate therefor is determined by reference to the LIBOR Rate.
'LIBOR RATE' means an annual rate of interest determined by the Bank
as being that rate quoted by Bankers Trust Company at approximately 11:00
A.M. London time for the offering of United States Dollar deposits in the
London Interbank Market for the Interest Period selected by the Borrower,
as taken from the so-called 'Reuters Screen', in accordance with the usual
practice in such market, two (2) Business Days prior to the Funding Date
for a requested LIBOR Loan (including those requested in connection with
the conversion of a Variable Rate Loan to a LIBOR Loan in accordance with
Section 2.12 hereof), or for a LIBOR Loan which Borrower has elected to
continue as a LIBOR Loan beyond the expiration of the then current Interest
Period with respect thereto, for deposits of Dollars in amounts equal (as
nearly as may be estimated) to the amount of the LIBOR Loan which shall
then be loaned by the Bank to Borrower as of the time of such
determination.
'LIEN' means any mortgage, deed of trust, statutory trust, pledge,
security interest, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), or preference, priority, or other
security agreement or preferential arrangement, charge, or encumbrance of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and
the filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction to evidence any of the foregoing).
'LOANS' means, collectively, the Term Loan, the Term Loan Facility
Loans, and the Seasonal Loans.
'LOAN DOCUMENTS' means, collectively, this Agreement, the Notes, the
Guaranties, the Security Documents, and all related documents, instruments
and agreements executed and delivered in connection therewith, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
'MARKETING AGREEMENT' means the Marketing and Facilitation Agreement,
dated as of November 3, 1994, between the Parent and Curtice-Burns, as such
agreement may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
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'MEMBER EQUITY' means all net proceeds received by the Parent at any
time subsequent to the Closing Date from the sale and issuance by the
Parent to its members of equity securities and/or (solely for the purposes
of this definition) subordinated debentures (other than the Subordinated
Notes) permitted under the Parent Guaranty.
'MERGER' means the merger of PF with and into Curtice-Burns in
accordance with the Merger Agreement.
'MERGER AGREEMENT' means the Agreement and Plan of Merger dated as of
September 27, 1994, executed by and among Parent, PF and Curtice-Burns.
'MORTGAGES' means, collectively, the Borrower Mortgages and the
Subsidiaries Mortgages.
'MULTIEMPLOYER PLAN' means a Plan described in Section 4001(a)(3) of
ERISA.
'NOTES' means, collectively, the Term Note, the Term Loan Facility
Note, and the Seasonal Note and when used in the singular means any one of
such Notes.
'OBLIGATIONS' means any and all obligations, liabilities and
indebtedness of the Borrower to the Bank of every kind and description now
existing and hereafter arising under this Agreement or any other Loan
Documents, however evidenced, whether direct or indirect, absolute or
contingent, joint or several, secured or unsecured, due or not due, primary
or secondary, liquidated or unliquidated, whether arising before, during or
after the initial or any renewal term hereof, or after the commencement of
any case with respect to the Borrower under the Bankruptcy Code or any
similar statute, including, without limitation, all principal, interest,
financing charges, fees, commissions and expenses payable to the Bank,
including, but not limited to, reasonable attorneys' fees and
disbursements, chargeable to Borrower and due from the Borrower under this
Agreement or any other Loan Documents.
'OBLIGORS' shall have the meaning assigned to such term in Section
4.1.
'OFFER' means the Offer to Purchase for Cash all outstanding Class A
and Class B Shares of Common Stock of Curtice-Burns Foods, Inc. at Nineteen
Dollars ($19) Net Per Share by PF Acquisition Corp., a wholly-owned
subsidiary of Pro-Fac Cooperative, Inc., dated October 4, 1994, as the same
may be amended, modified or supplemented.
'PBGC' means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
'PARENT' shall have the meaning assigned to such term in the first
sentence of the recitals of this Agreement.
'PARENT GUARANTY' shall have the meaning assigned to such term in
Section 2.24.
'PERMITTED LIENS' shall have the meaning assigned to such terms in
Section 7.1.
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'PERSON' means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, or other entity of whatever nature.
'PLAN' means any pension plan which is covered by Title IV of ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is an
'employer' as defined in Section 3(5) of ERISA.
'PRIME LOANS' means any Loans when and to the extent that the interest
rate therefor is determined by reference to the Prime Rate.
'PRIME RATE' means the highest 'prime rate' of interest quoted from
time to time by The Wall Street Journal as the base rate on corporate loans
at large United States money center commercial banks, provided, however,
that in the event that The Wall Street Journal ceases quoting a 'Prime
Rate' of the type described, Prime Rate shall mean the highest per annum
rate of interest quoted as the 'Bank Prime Loan' rate for 'This Week' in
Statistical Release H.15 (519) published from time to time by the Board of
Governors of the Federal Reserve System. The Prime Rate shall change
effective on the date of the publication of any change in the applicable
index by which such Prime Rate is determined.
'PRINCIPAL OFFICE' means the Bank's office at 67 Hunt Street, Agawam,
Massachusetts 01001.
'PROGRAM RATE' shall have the meaning assigned to such term in Section
2.13.
'PROHIBITED TRANSACTION' means any transaction set forth in Section
406 of ERISA or Section 4975 of the Code.
'REAL PROPERTY COLLATERAL' means all Collateral consisting of real
property and interests in real property upon which the Bank at any time
holds a Lien.
'REGULATORY CHANGE' shall have the meaning assigned to such term in
Section 2.21.
'REIMBURSEMENT OBLIGATIONS' shall have the meaning assigned to such
term in Section 3.4.
'REPORTABLE EVENT' means any of the events set forth in Section 4043
of ERISA.
'RETAINS' means patronage income allocated but not distributed to
members of the Parent and retained as such members' equity in the Parent.
'SEASONAL LOAN COMMITMENT' shall have the meaning assigned to such
term in Section 2.7.
'SEASONAL LOANS' shall have the meaning assigned to such term in
Section 2.7.
'SEASONAL NOTE' shall have the meaning assigned to such term in
Section 2.8.
'SECURITY DOCUMENTS' means, collectively, the Borrower Security
Agreement, the Parent Security Agreement, the Subsidiaries Security
Agreement, the Borrower Patent Security Agreement, the Borrower
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Trademark Security Agreement, the Borrower Mortgages and the Subsidiaries
Mortgages, and all related documents, instruments and agreements executed and
delivered in connection therewith pursuant to which any Lien is granted in favor
of the Bank or perfected, as the same may now exist or may hereafter be amended,
modified, supplemented, extended, restated or replaced.
'SUBORDINATED NOTES' means, collectively, the Subordinated Notes issued by
the Borrower pursuant to the Subordinated Notes Indenture and any senior
subordinated notes issued upon exchange thereof, substantially as described in
the Offering Memorandum dated October 24, 1994.
'SUBORDINATED NOTES INDENTURE' means the Indenture dated November 3, 1994
executed by and between the Borrower and the Trustee, pursuant to which the
Subordinated Notes have been issued and payment and performance thereof are
governed and any indenture entered into in replacement thereof in connection
with the exchange of the Subordinated Notes issued on or about November 3, 1994.
'SUBSIDIARY' means, as to the Borrower, a corporation of which shares of
stock having ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by the Borrower.
'SUBSIDIARY GUARANTORS' means, collectively, the Subsidiaries identified on
Schedule 1.1 annexed hereto.
'SUBSIDIARIES GUARANTY' shall have the meaning assigned to such term in
Section 2.24.
'SUBSIDIARIES MORTGAGES' shall have the meaning assigned to such term in
Section 2.25.
'SUBSIDIARIES SECURITY AGREEMENT' shall have the meaning assigned to such
term in Section 2.25.
'TERMINATION DATE' means, with respect to the Term Loan and the Term Loan
Facility, November 2, 2004.
'TERM LOAN' shall have the meaning assigned to such term in Section 2.1.
'TERM LOAN FACILITY' shall have the meaning assigned to such term in
Section 2.4.
'TERM LOAN FACILITY LOANS' shall have the meaning assigned to such term in
Section 2.4 and when used in the singular shall mean any one of such Loans.
'TERM NOTE' shall have the meaning assigned to such term in Section 2.2.
'TERM LOAN FACILITY NOTE' shall have the meaning assigned to such term in
Section 2.5.
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'TRANCHE' shall have the meaning assigned to such term in Section 2.13.
'TRANCHE MATURITY DATE' shall have the meaning assigned to such term in
Section 2.13.
'TREASURY-BASED LOANS' means any Loans when and to the extent that the
interest rate is determined by reference to the Treasury-Based Rate.
'TREASURY-BASED RATE' means an annual rate of interest equal to the
interest rate for United States Treasury Bills having a maturity equal to the
term of the Interest Period selected by the Borrower pursuant to Section 2.12
with respect to a particular Loan and as quoted by The Wall Street Journal,
provided, however that if The Wall Street Journal ceases quoting such a rate,
the Treasury-Based Rate with respect to such Interest Period shall mean the
interest rate for United States Treasury obligations having such maturity as
quoted for 'This Week' in Statistical Release H.15 (519) published from time to
time by the Board of Governors of the Federal Reserve System.
'TRUSTEE' means IBJ Schroder Bank & Trust Company and any successor thereto
appointed pursuant to the Subordinated Notes Indenture.
SECTION 1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with those applied
in the preparation of the financial statements referred to in paragraph 7.4 of
the Parent Guaranty, and all financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles.
SECTION 2. AMOUNT AND TERMS OF THE LOANS
SECTION 2.1 TERM LOAN. The Bank agrees, upon the terms and subject to the
conditions set forth in this Agreement, to make a term loan to the Borrower on
the Closing Date in the principal amount of Eighty Million Dollars ($80,000,000)
(the 'TERM LOAN').
SECTION 2.2 TERM NOTE. The Term Loan shall be evidenced by the promissory
note of the Borrower (the 'TERM NOTE') in substantially the form of EXHIBIT A
annexed hereto, with blanks appropriately filled in. The Term Loan shall be
repaid with interest in accordance with this Agreement and the Term Note.
SECTION 2.3 AMORTIZATION OF TERM LOAN. The principal amount of the Term
Loan shall be repaid in twenty (20) equal consecutive semi-annual installments,
commencing on the first Business Day of May, 1995 and thereafter on the first
Business Day of each November and May, until paid in full, of which the first
nineteen (19) installments shall each be in the amount of Four Million Dollars
($4,000,000), and the twentieth and final installment shall be in the amount of
the then outstanding principal balance of the Term Loan plus all accrued unpaid
interest thereon and other sums and charges due under this Agreement and the
Term Note.
SECTION 2.4 TERM LOAN FACILITY.
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(a) The Bank agrees, upon the terms and subject to the conditions set forth
in this Agreement, to make, in addition to the Term Loan, one or more term loans
to the Borrower (the 'TERM LOAN FACILITY'; the Loans made under the Term Loan
Facility are collectively referred to herein as the 'TERM LOAN FACILITY LOANS'),
from time to time during the period from the Closing Date up to but not
including November 3, 1999, in an aggregate principal amount of up to One
Hundred Twenty Million Dollars ($120,000,000). Each Term Loan Facility Loan that
shall not utilize the full amount of the Commitment therefor shall be in an
amount not less than One Million Dollars ($1,000,000). Each Term Loan Facility
Loan may be made as a Prime Loan, LIBOR Loan or Treasury-Based Loan.
(b) Notwithstanding anything to the contrary contained in Section 2.4(a),
the Borrower shall be permitted to borrow amounts previously repaid under the
Term Loan Facility at any time, and from time to time during the period from the
Closing Date up to but not including November 3, 1999, in an amount which,
together with all amounts previously repaid and re-borrowed pursuant to this
Section 2.4(b), shall not exceed, in the aggregate, the lesser of (i) Member
Equity and any federal income tax refund received by the Borrower or the Parent
with respect to income tax returns filed on or prior to October 31, 1993 for the
Fiscal Year ending in June, 1993 and any Fiscal Year prior thereto, in each case
theretofore applied to the repayment of the outstanding principal balance of the
Term Loan Facility and (ii) (A) Twenty Five Million Dollars ($25,000,000) if
such re-borrowing occurs on or before June 30, 1996 and (B) Twenty Million
Dollars ($20,000,000) if such re-borrowing occurs on or after July 1, 1996.
SECTION 2.5 TERM LOAN FACILITY NOTE. The Term Loan Facility Loans shall be
evidenced by a promissory note of the Borrower (the 'TERM LOAN FACILITY NOTE')
in substantially the form of EXHIBIT B attached hereto, with blanks
appropriately filled in. The Term Loan Facility Loans shall be repaid with
interest in accordance with this Agreement and the Term Loan Facility Note.
SECTION 2.6 AMORTIZATION OF TERM LOAN FACILITY LOANS. The principal amount
of the Term Loan Facility Loans shall be repaid (a) from the Closing Date
through September 1, 1999, in five (5) consecutive annual installments on
September 1 of each calendar year, in an amount equal to the Annual Cash Sweep
for the Borrower's immediately preceding Fiscal Year, and (b) from and after
November 3, 1999, in ten (10) equal consecutive semi-annual installments,
commencing on the first Business Day of May, 2000 and thereafter on the first
Business Day of each November and May, until paid in full. The amount of each of
the first nine (9) said principal installments due and payable from and after
November 3, 1999 shall be an amount equal to the quotient of (a) the outstanding
principal balance of the Term Loan Facility Loan outstanding as of November 3,
1999 divided by (b) ten (10), and the tenth and final installment shall be in
the amount of the outstanding principal balance of the Term Loan Facility Loans
plus all accrued unpaid interest and other sums and charges due under the Term
Loan Facility Note.
SECTION 2.7 SEASONAL LOAN FACILITY. The Bank agrees, upon the terms and
subject to the conditions set forth in this Agreement, to make seasonal loans
(the 'SEASONAL LOANS') to the Borrower from time to time during the period from
the Closing Date up to but not including the date that is fourteen (14) months
after the Closing Date in an aggregate principal amount not to exceed at any
time outstanding the lesser of (a) Eighty-Six Million Dollars ($86,000,000) and
(b) the Borrowing Base (the 'SEASONAL LOAN COMMITMENT'). Each Seasonal Loan that
shall not utilize the full amount of the Seasonal Loan Commitment in full and
that is requested to be made by the Borrower as a LIBOR Loan or Treasury-Based
Loan shall be
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in an amount not less than One Million Dollars ($1,000,000). Within the limits
of the Seasonal Loan Commitment, the Borrower may borrow, repay pursuant to
Section 2.16 and reborrow under this Section 2.7. Each Seasonal Loan may be made
as a Prime Loan, a LIBOR Loan, or a Treasury-Based Loan. The Bank may, at its
option, renew the Seasonal Loan Commitment for one or more successive one
(1)-year periods from and after the expiration of the initial term of the
Seasonal Loan Commitment.
SECTION 2.8 SEASONAL LOAN NOTE. The Seasonal Loans shall be evidenced by a
promissory note (the 'SEASONAL NOTE') in substantially the form of EXHIBIT C
annexed hereto, with blanks appropriately filled in. The Seasonal Note shall be
repaid with interest in accordance with this Agreement and the Seasonal Loan
Note.
SECTION 2.9 REPAYMENT OF SEASONAL LOANS. The principal amount of the
Seasonal Loans shall be repaid in full on or before the date that is 18 months
after the Closing Date, provided, however, that to the extent that the
outstanding principal amount thereof exceeds, at the end of any month, the
Borrowing Base at the end of such month, such excess(es) shall be immediately
due and payable upon demand by the Bank.
SECTION 2.10 ANNUAL REPAYMENT PERIOD. Notwithstanding the provisions of
Section 2.9, the Borrower shall be obligated to repay the Seasonal Loans in full
and to maintain the Seasonal Loans in such fully paid status for a period of any
fifteen (15) consecutive calendar days during each of its Fiscal Years, each of
which fifteen (15) day periods shall be selected by the Borrower.
SECTION 2.11 NOTICE AND MANNER OF BORROWING.
(a) The Borrower shall give the Bank written notice (effective upon
receipt) of its request for any Term Loan Facility Loans or Seasonal Loans under
this Agreement, on or before the requested Funding Date for each Prime Loan, and
at least three (3) Business Days before the requested Funding Date for each
Fixed Rate Loan, specifying (i) the requested Funding Date for such Loan; (ii)
the amount of such Loan; (iii) whether the Loan shall be a Prime Rate, LIBOR
Rate or Treasury-Based Loan; and (iv) in the case of a LIBOR Loan or
Treasury-Based Loan, the duration of the Interest Period selected by the
Borrower applicable thereto. Failure by the Borrower to make such election
described in clause (a)(iii) shall be deemed and shall constitute the Borrower's
election that the proposed Term Loan Facility Loan or Seasonal Loan, as
applicable, shall be a Prime Loan; and failure by the Borrower to make such
election described in clause (a)(iv) shall be deemed and shall constitute the
Borrower's election that the Interest Period with respect to the requested Loan
shall be (X) in the case of a LIBOR Loan, one (1) month, and (Y) in the case of
a Treasury-Based Loan, nine (9) months. In lieu of delivering the
above-described written notice of a requested Loan, the Borrower may give the
Bank a telephonic notice of any requested Loan by the time required under this
Section 2.11; provided, that such notice shall be confirmed in writing by
delivery to the Bank (1) immediately of a telecopy of a written notice of a
requested Loan which has been signed by an authorized officer of the Borrower
and (2) promptly (and in no event later than three (3) Business Days after the
Funding Date) of a written notice of a requested Loan containing the original
signature of an authorized officer of the Borrower.
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(b) The Borrower shall notify the Bank in writing of the names of the
officers authorized to request Loans on behalf of the Borrower, and shall
provide the Bank with a specimen signature of each such officer. The Bank shall
be entitled to rely conclusively on such officer's authority to request Loans on
behalf of the Borrower, until the Bank receives written notice to the contrary.
The Bank shall have no duty to verify the authenticity of the signature
appearing on any notice of a requested Loan or other writing delivered pursuant
to Section 2.11(a), and with respect to an oral request for Loans, the Bank
shall have no duty to verify the identity of any individual representing
herself/himself as one of the officers authorized to make such request on behalf
of the Borrower. Not later than 3:00 P.M. New York time on the Funding Date of
the proposed Loan and upon fulfillment of the applicable conditions set forth in
Section 4, the Bank will make such Loan available to the Borrower in immediately
available funds by crediting the amount thereof to such account as the Borrower
shall specify.
(c) All notices given under this Section 2.11 shall be irrevocable and
shall be given not later than 12:00 Noon New York time on the day which is not
less than the number of Business Days specified in Section 2.11(a) for such
notice. The Bank shall not incur any liability to the Borrower as a result of
acting upon any telephonic notice referred to in this Section 2.11, which notice
the Bank believes in Good Faith to have been given by a duly authorized officer
or other individual authorized to request Loans on behalf of the Borrower or for
otherwise acting in Good Faith under this Section 2.11 and, upon the funding of
the Term Loan or any Term Loan Facility Loan or Seasonal Loan by the Bank in
accordance with this Agreement pursuant to any such telephonic notice, the
Borrower shall be deemed to have borrowed the Term Loan, a Term Loan Facility
Loan or Seasonal Loan hereunder, as the case may be.
SECTION 2.12 CONVERSIONS AND RENEWALS. The Borrower may elect from time to
time to (a) convert all or a part of (i) a Prime Loan into a LIBOR Loan and/or a
Treasury-Based Loan, (ii) a LIBOR Loan into a Treasury-Based Loan and/or a Prime
Loan and (iii) a Treasury-Based Loan into a Prime Loan and/or a LIBOR Loan, and
(b) in the case of Fixed Rate Loans, to renew all or part of a Loan at the end
of the Interest Period with respect thereto, in each case, by giving the Bank
written notice thereof at least one (1) Business Day before the conversion of a
Fixed Rate Loan into a Prime Loan, at least three (3) Business Days before the
conversion into or renewal of a Treasury-Based Loan and at least three (3)
Business Days before the conversion into or renewal of a LIBOR Loan, specifying:
(1) the renewal or conversion date for such Loan; (2) the amount of such Loan to
be converted or renewed; (3) in the case of conversions, the type of Loan into
which the subject existing Loan (or designated portion thereof) shall be
converted; and (4) in the case of renewal of or a conversion into a LIBOR or a
Treasury-Based Loan, the duration of the Interest Period selected by the
Borrower applicable to such Loan (or designated portion thereof); provided that
(i) the minimum principal amount of each Fixed Rate Loan outstanding after
giving effect to a renewal or conversion of such Loan (or designated portion
thereof) shall be One Million Dollars ($1,000,000); and (ii) a LIBOR Loan and a
Treasury-Based Loan can be continued as such or converted into a Prime Loan only
on the last day of the Interest Period for such Loans. All notices given under
this Section 2.12 shall be irrevocable and shall be given not later than 12:00
Noon New York time on the day which is not less than the number of Business Days
specified above for the giving of such notice. If the Borrower shall fail to
give the Bank the notice as specified above for the renewal or conversion of a
LIBOR or Treasury-Based Loan prior to the end of the Interest Period with
respect thereto, such LIBOR Loan or Treasury-Based Loan shall automatically be
converted into a Prime Loan on the last day of the Interest Period for such
Loan. Notwithstanding anything herein to the contrary set forth in this Section
2.12, in the event of the occurrence and continuation of an
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Event of Default, (X) the conversion provided for herein shall not be permitted
and (Y) all Fixed Rate Loans shall automatically be converted to a Prime Loan on
the last day of the then current Interest Period with respect thereto.
SECTION 2.13 INTEREST. (a) Solely for purposes of this Section 2.13, the
Term Loan and the first Twenty-One Million Dollars ($21,000,000) of the Term
Loan Facility Loans made by the Bank to the Borrower shall be divided into the
tranches (each, a 'TRANCHE') set forth below, with Tranche No. 1, Tranche No. 2
and Four Million Dollars ($4,000,000) of Tranche No. 3 constituting in the
aggregate said first Twenty-One Million Dollars ($21,000,000) of the Term Loan
Facility Loans made by the Bank to the Borrower. The Borrower shall pay interest
to the Bank on the outstanding and unpaid principal amount of each Tranche
(collectively, the 'FIXED RATE PROGRAM LOANS'), from the Closing Date through
the respective Tranche Maturity Date ('TRANCHE MATURITY DATE') for each Tranche,
at the per annum rate for each respective Tranche (collectively, the 'PROGRAM
RATE'), all as set forth below:
<TABLE>
<CAPTION>
TRANCHE TRANCHE TRANCHE PROGRAM RATE
NUMBER MATURITY DATE AMOUNT ANNUAL PERCENT
- ------- ------------------------------------------------------------ ------------ --------------
<C> <S> <C> <C>
1 May 1, 1995................................................. $ 6,000,000 8.05
2 November 1, 1995............................................ 11,000,000 7.04
3 May 1, 1996................................................. 8,000,000 8.58
4 November 1, 1996............................................ 15,000,000 9.55
5 November 1, 1996............................................ 5,000,000 7.39
6 May 1, 1997................................................. 6,000,000 9.00
7 November 1, 1997............................................ 4,000,000 8.68
8 November 1, 1997............................................ 6,000,000 8.68
9 May 1, 1998................................................. 6,000,000 8.81
10 November 1, 1998............................................ 12,000,000 8.01
11 November 1, 1999............................................ 12,000,000 8.69
12 November 1, 2000............................................ 10,000,000 8.42
Total Amount of Tranches: $101,000,000
</TABLE>
No later than three (3) Business Days before the Tranche Maturity Date for a
Tranche, the Borrower shall deliver written notice to the Bank of its election
to convert the Fixed Rate Program Loans in such Tranche, in whole or in part, to
any of a Prime Loan, a LIBOR Loan, or a Treasury-Based Loan. Said notice shall
contain the information required by Section 2.12 with respect to conversion of
Loans from one interest rate option to another. If the Borrower shall fail to
deliver said notice to the Bank within said time, the Fixed Rate Program Loans
in such Tranche shall automatically be converted into a Prime Loan as of the
relevant Tranche Maturity Date.
(b) The Borrower shall pay interest to the Bank on the outstanding and
unpaid principal amount of the Loans made under this Agreement, other than with
respect to each Tranche of Fixed Rate Program Loans prior to the relevant
Tranche Maturity Date therefor:
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(i)for a Prime Loan, at a rate per annum equal to (A) with respect to
the Term Loan and the Term Loan Facility Loans, the Prime Rate plus
one-half percent (.50%), and (B) with respect to the Seasonal Loans, the
Prime Rate minus one-quarter percent (.25%);
(ii) for a LIBOR Loan, at a rate per annum equal to (A) with respect
to the Term Loan and Term Loan Facility Loans, the LIBOR Rate plus two and
six-tenths percent (2.6%); and (B) with respect to the Seasonal Loans, the
LIBOR Rate plus one and seventy-five hundredths percent (1.75%); and
(iii) for a Treasury-Based Loan, at a rate per annum equal to (A) with
respect to the Term Loan and the Term Loan Facility Loans, the
Treasury-Based Rate plus three percent (3%), and (B) with respect to the
Seasonal Loans, the Treasury-Based Rate plus two percent (2%);
(c) Notwithstanding anything to the contrary contained in Section 2.13(b):
(i) if, as and when the difference between (A) the Bank's cost of funds for the
Treasury-Based Loans outstanding at any time and (B) the Treasury-Based Rate
increases or decreases, then the effective interest rates provided for in
Section 2.13(b)(iii) shall be automatically changed by an amount equal to such
increase or decrease with respect to all Loans made by the Bank or converted or
renewed by the Borrower pursuant to Section 2.12, in each case on and after the
date of such increase or decrease; and (ii) if the Parent achieves a
consolidated long term debt to equity ratio, as reflected in a quarterly or
annual financial statement delivered to the Bank pursuant to Paragraph 8.8 of
the Parent Guaranty, of (A) 2.5:1 or (B) 2.15:1, then, solely with respect to
the Term Loan and the Term Loan Facility Loans, the rate of interest provided
for Prime Loans and the Fixed Rate Loans in Section 2.13(b) shall be reduced by
one-quarter percent (.25%) or one-half percent (.50%) (such interest rate
reductions are herein collectively referred to as the 'Discount'), respectively,
effective as of the date on which the Bank receives the financial statements
reflecting achievement of the ratios set forth in this clause (ii). The
applicable Discount shall remain in effect for as long as the Parent maintains
the aforesaid respective consolidated long term debt to equity ratio.
(d) Any change in the effective interest rate for a Prime Loan resulting
from a change in the Prime Rate shall be effective as of the opening of business
on the day on which such change in the Prime Rate becomes effective.
(e) Interest on each Loan and Reimbursement Obligation shall be calculated
on the basis of a year of 360 days for the actual number of days elapsed. In
calculating interest, the date each Loan is made and the date each Reimbursement
Obligation arises shall be included and the date each Loan and each
Reimbursement Obligation is repaid shall be excluded from such calculation.
(f) Interest on the Loans shall be paid in immediately available funds at
the Bank's Principal Office monthly, in arrears, on the first Business Day of
each calendar month.
(g) Any principal amount not paid when due (at maturity, by acceleration,
or otherwise) shall bear interest thereafter until paid in full, payable on
demand of the Bank, at a rate per annum equal to:
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(i) For the Fixed Rate Program Loans, at the Program Rate plus two
percent (2%);
(ii) For each Prime Loan, at a rate equal to the applicable effective
rate for Prime Loans set forth in Section 2.13(b)(i), subject to any
Discount then in effect, plus two percent (2%);
(iii) For each LIBOR Loan, at a rate equal to the applicable effective
rate for LIBOR Loans set forth in Section 2.13(b)(ii), subject to any
Discount then in effect, plus two percent (2%) from the time of default in
payment of principal until the end of the then current Interest Period
therefor, and thereafter at a rate equal to the applicable effective rate
for Prime Loans set forth in Section 2.13(b)(i) plus two percent (2%); and
(iv) For each Treasury-Based Loan, at a rate equal to the applicable
effective rate for Treasury-Based Loans set forth in Section 2.13(b)(iii),
subject to any Discount then in effect, plus two percent (2%) from the time
of default in payment of principal until the end of the then current
Interest Period therefor, and thereafter at a rate equal to the applicable
effective rate for Prime Loans set forth in Section 2.13(b)(i) plus two
percent (2%).
SECTION 2.14 FEES.
(a) The Borrower agrees to pay to the Bank a non-refundable Acquisition
Facility Fee (the 'ACQUISITION FACILITY FEE') in the amount of Two Million One
Hundred Forty-Five Thousand Dollars ($2,145,000). The Acquisition Facility Fee
shall be deemed earned and shall be payable in full on the Closing Date.
(b) In consideration of the Bank's Commitment to make Term Loan Facility
Loans on the terms and subject to the conditions set forth in this Agreement,
the Borrower agrees to pay to the Bank monthly, in arrears, on the first day of
each month during the period from the Closing Date through and including
September 1, 1999 a commitment fee ('COMMITMENT FEE'), equal to one-quarter
percent (1/4%) per annum of the difference, if any, between (i) the Term Loan
Facility Commitment of One Hundred Twenty Million Dollars ($120,000,000) and
(ii) the average aggregate outstanding daily principal balance of the Term Loan
Facility Loans for each month during said period. The Commitment Fee shall be in
addition to all interest and other sums and charges due and payable with respect
to the Term Loan Facility Loans.
SECTION 2.15 AUTHORIZATION FOR NOTES. The Bank is hereby authorized by the
Borrower to endorse on any schedule attached to any Note for a Loan the amount
and interest rate option in effect with respect to such Loan and each renewal,
conversion, and payment of principal amount received by the Bank on account of
such Loan, which endorsement shall, in the absence of manifest error, be
conclusive as to the outstanding balance of such Loan made by the Bank;
provided, however that the failure to make such notation with respect to any
Loan or renewal, conversion, or payment shall not limit or otherwise affect the
obligations of the Borrower under this Agreement or the Note evidencing such
Loan.
SECTION 2.16 PREPAYMENTS; PREPAYMENT FEE.
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(a) The Borrower may upon at least one (1) Business Days' notice to the
Bank in the case of Prime Loans, and at least three (3) Business Days' notice to
the Bank in the case of Fixed Rate Loans and Fixed Rate Program Loans, prepay
the Notes in whole or in part with accrued interest to the date of such
prepayment on the amount prepaid, provided that (i) each partial prepayment
shall be in a principal amount of not less than One Million Dollars
($1,000,000); (ii) prepayment of a LIBOR Loan or Treasury-Based Loan on any day
other than the last day of the Interest Period for such Loan, or prepayment of
the Fixed Rate Program Loans on any day other than the Tranche Maturity Date for
such Fixed Rate Program Loan, must also be accompanied by (A) any prepayment fee
that is due and payable under Section 2.16(c) and (B) any funding loss
indemnification payment that the Bank determines is due and payable under
Section 2.23 on account of such prepayment; and (iii) in the case of the Term
Note and the Term Loan Facility Note, prepayments shall be applied pro rata to
all of the then remaining unpaid principal installments of, the Term Note or, at
the Borrower's option, the Term Loan Facility Note;
(b) The Borrower shall prepay the Term Loan Facility Note, without notice,
in an amount equal to the Member Equity received by the Parent, as and when
received by the Parent, without premium or penalty, subject, however, to the
provisions of Section 2.23;
(c) Notwithstanding anything to the contrary contained in Section 2.12 or
2.13, the Borrower shall pay to the Bank a prepayment fee with respect to any
payment ('FIXED RATE PREPAYMENT') of a Fixed Rate Loan or a Fixed Rate Program
Loan made prior to the last day of the Interest Period or the Tranche Maturity
Date (as the case may be) for such Loan. Such prepayment fee shall be due and
payable together with such Fixed Rate Prepayment and shall be in an amount equal
to the amount, if any, by which (i) the discounted present value of the
remaining scheduled payments of principal plus interest that would have accrued
through the last day of such Interest Period or the Tranche Maturity Date (as
the case may be) exceeds (ii) the principal amount of the Fixed Rate Prepayment
plus accrued but unpaid interest thereon. For the purpose of this Section
2.16(c) the discount rate used in calculating such discounted present value
shall be the rate equal to, as of the date of determination, the Treasury-Based
Rate for an interest period which most nearly approximates the total number of
calendar months, and any part thereof, remaining between the date of such Fixed
Rate Prepayment and the last day of the Interest Period or the Tranche Maturity
Date (as the case may be) for the Loan being prepaid.
SECTION 2.17 METHOD OF PAYMENT.
(a) The Borrower shall make each payment under this Agreement and under the
Notes not later than 12:00 Noon New York time on the date when due in lawful
money of the United States to the Bank at its Principal Office in immediately
available funds.
(b) The Borrower hereby authorizes the Bank, if and to the extent payment
of any of the Obligations is not made when due, whether under this Agreement,
under any Note, or otherwise, to make, at its option, and subject to the terms
and provisions of this Agreement, a Seasonal Loan (which shall be a Prime Loan)
for the account of the Borrower in the amount of such past due payment, the
proceeds of which shall be used to satisfy such past due payment. Nothing
contained herein, however, shall in any manner affect, limit or impair the
liability of the Borrower for such past due payment, which liability shall
remain absolute until the past due payment is made in full.
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<PAGE>
(c) Whenever any payment to be made under this Agreement or under any Note
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of the payment of interest due on the
Loan evidenced thereby, except that, in the case of a Fixed Rate Loan or a Fixed
Rate Program Loan, if the result of such extension would be to extend such
payment beyond the then current Interest Period therefor or the relevant Tranche
Maturity Date, as the case may be, such payment shall be made on the Business
Day immediately preceding the day on which such payment is stated to be due.
SECTION 2.18 USE OF PROCEEDS. The proceeds of the Loans hereunder shall be
used by the Borrower to (a) assist in financing the acquisition by PF of the
shares of Class A and Class B Common Stock of Curtice-Burns outstanding on the
Closing Date in accordance with the Merger Agreement, (b) repay all Debt of
Parent to the Bank outstanding as of the Closing Date, (c) repay all Debt of
Curtice-Burns to its existing commercial bank lenders, and (d) provide long term
and seasonal loan financing to the Borrower. The Borrower will not, directly or
indirectly, use any part of such proceeds in a manner that gives rise to a
violation of Regulation U of the Board of Governors of the Federal Reserve
System or Regulation X of such Board of Governors.
SECTION 2.19 ILLEGALITY. Notwithstanding any other provision in this
Agreement, if the Bank determines that any applicable law, rule, or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law) of any
such authority, central bank, or comparable agency shall make it unlawful or
impossible for the Bank to: (a) maintain its Commitment, then upon notice to the
Borrower by the Bank, the Commitment of the Bank shall terminate; or (b)
maintain or fund its LIBOR Loans and/or Treasury-Based Loans, then upon notice
to the Borrower by the Bank, the outstanding principal amount of the LIBOR Loans
and/or Treasury-Based Loans (as the case may be), together with interest accrued
thereon, and all other amounts payable to the Bank under this Agreement and the
Note(s) evidencing such Loan(s) with respect thereto shall be repaid (i)
immediately upon demand of the Bank, if such change or compliance with such
request, in the judgment of the Bank, requires immediate repayments, or (ii) at
the expiration of the last Interest Period to expire before the effective date
of any such change or request; provided, however, that the Borrower shall have
the right to convert such Loans to Prime Loans on the date specified in clause
(i) or clause (ii), as the case may be.
SECTION 2.20 IMPOSSIBILITY. Notwithstanding anything to the contrary in
this Agreement, if the Bank determines in Good Faith that:
(a) Quotations of interest rates for the relevant deposits referred to
in the definition of LIBOR Rate or Treasury-Based Rate, as the case may be,
are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest on a LIBOR Loan
or Treasury-Based Loan as provided in this Agreement; or
(b) The relevant rates of interest referred to in the definition of
LIBOR Rate or Treasury-Based Rate, as the case may be, upon the basis of
which the rate of interest for any such type of
20
<PAGE>
Loan is to be determined, do not accurately cover the cost to the Bank
of making or maintaining such type of Loan;
then the Bank may, at its sole option, forthwith give notice thereof
to the Borrower, whereupon (i) the obligation of the Bank to make LIBOR
Loans or Treasury-Based Loans, as the case may be, shall be suspended until
the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist; and (ii) such LIBOR Loan or Treasury-Based
Loan, as the case may be, shall be converted into a Prime Loan on the last
day of the then current Interest Period applicable to such Loan.
SECTION 2.21 INCREASED COST. The Borrower shall pay to the Bank from time
to time such amounts as the Bank may reasonably determine to be necessary to
compensate the Bank for any costs incurred by the Bank which the Bank reasonably
determines are attributable to its making or maintaining any LIBOR Loans or
Treasury-Based Loans hereunder or its obligation to make any such Loans
hereunder, or any reduction in any amount receivable by the Bank under this
Agreement or the Notes in respect of any such Loans or such obligations (such
increases in costs and reductions in amounts receivable being herein called
'ADDITIONAL COSTS'), resulting from any change after the date of this Agreement
in U.S. federal, state, municipal, or foreign laws or regulations or the
adoption or making after such date of any interpretations, directives, or
requirements applying to a class of banks, including the Bank, of or under any
U.S. federal, state, municipal, or any foreign laws or regulations (whether or
not having the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof ('REGULATORY CHANGE')
which: (a) changes the basis of taxation of any amounts payable to the Bank
under this Agreement or the Notes in respect of any of such Loans (other than
taxes imposed on the overall net income of the Bank for any of such Loans) or
(b) imposes or modifies any reserve, special deposit, compulsory loan or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of the Bank (including any of such Loans or
any deposits referred to in the definition of LIBOR Rate or Treasury-Based
Rate); or (c) imposes any other condition affecting this Agreement or the Notes
(or any of such extensions of credit or liabilities). The Bank will notify the
Borrower of any event occurring after the date of this Agreement which will
entitle the Bank to compensation pursuant to this Section 2.21 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation.
Determinations by the Bank for purposes of this Section 2.21 of the effect
of any Regulatory Change on its costs of making or maintaining Fixed Rate Loans
or on amounts receivable by it in respect of Fixed Rate Loans, and of the
additional amounts required to compensate the Bank in respect of any Additional
Costs, shall be conclusive, provided that such determinations are made on a
reasonable basis.
SECTION 2.22 [INTENTIONALLY OMITTED].
SECTION 2.23 FUNDING LOSS INDEMNIFICATION. The Borrower shall pay to the
Bank, upon the request of the Bank, such amount or amounts as shall be
sufficient (in the Good Faith judgment of the Bank) to compensate it for any
loss, cost, or expense incurred as a result of:
(a) Any payment of a LIBOR or Treasury-Based Loan on a date other than
the last day of the Interest Period for such Loan including, but not
limited to, acceleration of the Loans by the Bank pursuant to Section 9.2,
but excluding any such payment pursuant to Section 2.19;
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(b) Any failure by the Borrower to borrow or convert, as the case may be, a
LIBOR or Treasury-Based Loan on the date for borrowing or conversion, as the
case may be, specified in the relevant notice under Section 2.11 or 2.12, as the
case may be; or
(c) Any payment of a Fixed Rate Program Loan prior to its Tranche Maturity
Date, but excluding any such payment pursuant to Section 2.19, provided that the
amount calculated as payable under this Section 2.23 shall not include any
amount due pursuant to Section 2.16.
SECTION 2.24 GUARANTIES. All Obligations of the Borrower to the Bank
arising under this Agreement and the other Loan Documents shall be
unconditionally guaranteed, (a) by Parent pursuant to a Guaranty, dated as of
the date hereof, substantially in the form annexed hereto as EXHIBIT D (which,
together with all supplements thereto and amendments thereof, is referred to
herein as the 'PARENT GUARANTY'), and (b) by the Subsidiary Guarantors pursuant
to a Guaranty, dated as of the date hereof, substantially in the form annexed
hereto as EXHIBIT E (which, together with all supplements thereto and amendments
thereof, is referred to herein as the 'SUBSIDIARIES GUARANTY'; and, together
with the Parent Guaranty, collectively, the 'GUARANTIES').
SECTION 2.25 SECURITY.
(a) The Obligations shall be secured by:
(i) a Security Agreement, dated as of the date hereof, between the
Borrower and the Bank substantially in the form annexed hereto as EXHIBIT F
(which, together with all supplements thereto and amendments thereof, is
referred to herein as the 'BORROWER SECURITY AGREEMENT'), granting to the
Bank a first priority security interest in the Collateral (as defined in
the Borrower Security Agreement), subject only to Permitted Liens;
(ii) a Collateral Assignment of Trademarks and Security Agreement
substantially in the form annexed hereto as Exhibit G (which, together with
all supplements thereto and amendments thereof, is referred to herein as
the 'BORROWER TRADEMARK SECURITY AGREEMENT'), granting to the Bank a first
priority security interest in the Trademark Collateral (as defined in the
Borrower Trademark Security Agreement), subject only to Permitted Liens;
(iii) a Patent Collateral Assignment and Security Agreement, dated as
of the date hereof, between the Borrower and the Bank substantially in the
form annexed hereto as EXHIBIT H (which, together with all supplements
thereto and amendments thereof, is referred to herein as the 'BORROWER
PATENT SECURITY AGREEMENT'), granting to the Bank a first priority security
interest in the Patent Collateral (as defined in the Borrower Patent
Security Agreement), subject only to Permitted Liens;
(iv) a mortgage, deed of trust, collateral assignment of leases and
rentals, leasehold mortgage and other similar instruments (collectively,
the 'MORTGAGES'), dated the date hereof, executed and delivered by the
Borrower in favor of the Bank, in form and substance satisfactory to the
Bank (all Mortgages delivered by the Borrower to the Bank, together with
all supplements thereto and amendments thereof, are collectively referred
to herein as the 'BORROWER MORTGAGES', granting to the Bank
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a first priority Lien on all Real Property Collateral now owned by the
Borrower described on SCHEDULE 2.25(A)(IV) hereto, subject only to
Permitted Liens;
(v) Borrower Mortgages, delivered to the Bank on all Real Property
Collateral other than the Real Property Collateral described on SCHEDULE
2.25(A)(IV) hereto, whether now owned or acquired by the Borrower
subsequent to the Closing Date, granting to the Bank a first priority Lien
on all such Real Property Collateral, subject only to Permitted Liens;
(b) The Parent Guaranty shall be secured by a Security Agreement, dated as
of the date hereof, between the Parent and the Bank, substantially in the form
annexed hereto as EXHIBIT I (which, together with all supplements thereto and
amendments thereof, is referred to herein as the 'PARENT SECURITY AGREEMENT'),
granting to the Bank a first priority security interest in the Collateral (as
defined in the Parent Security Agreement), subject only to Permitted Liens;
(c) The Subsidiaries Guaranty shall be secured by:
(i) a Security Agreement, dated as of the date hereof, between the
Subsidiaries and the Bank, substantially in the form annexed hereto as
EXHIBIT J (which, together with all supplements thereto and amendments
thereof, is referred to herein as the 'SUBSIDIARIES SECURITY AGREEMENT'),
granting to the Bank a first priority security interest in the Collateral
(as defined in the Subsidiaries Security Agreement), subject only to the
Permitted Liens;
(ii) a Mortgage, dated the date hereof, executed and delivered by the
respective Subsidiary Guarantor that owns the Real Property Collateral
described on SCHEDULE 2.25(C)(II) hereto to the Bank (which, together with
all supplements thereto and amendments thereof, are referred to
collectively herein as the 'SUBSIDIARIES MORTGAGES'), granting to the Bank
a first priority Lien on all such Real Property Collateral, subject only to
Permitted Liens; and
(iii) Subsidiaries Mortgages delivered to the Bank on all Real
Property Collateral acquired by any Subsidiary Guarantor subsequent to the
Closing Date, subject only to Permitted Liens.
SECTION 3. LETTERS OF CREDIT
SECTION 3.1 LETTER OF CREDIT ACCOMMODATIONS. The Bank shall, from time to
time, on the terms and subject to the conditions hereof, at the request of the
Borrower, provide one or more of the following financial accommodations to or
for the account of the Borrower during the period from the Closing Date up to
but not including the first anniversary of the Closing Date, with an expiration
date for each such financial accommodation not later than the Termination Date:
(a) issue, open or cause the issuance or opening of direct pay or standby
letters of credit or purchase or other guaranties for the purchase of goods and
services in the ordinary course of the Borrower's business or for any other
purpose approved by the Bank or (b) assist the Borrower in establishing or
opening letters of credit for such purposes by indemnifying the issuer thereof
or guaranteeing the payment or performance of the Borrower to such issuer in
connection
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therewith (the 'LETTER OF CREDIT FACILITY'; and all letters of credit and other
accommodations issued or provided for hereunder are herein collectively referred
to as the 'LETTER OF CREDIT ACCOMMODATIONS'). In addition, all letters of credit
issued prior to the Closing Date for the account of Parent and/or Curtice-Burns
set forth on SCHEDULE 3.1 annexed hereto (collectively, the 'EXISTING LETTERS OF
CREDIT') shall, for all purposes of this Agreement, be deemed and shall
constitute Letter of Credit Accommodations issued by the Bank for the account of
the Borrower, and the same shall in all respects be governed by this Agreement.
The Borrower agrees to execute on the Closing Date all such amendments and
related documents with respect to the Existing Letters of Credit as the Bank
shall reasonably request, providing for, among other things, the addition and/or
substitution of the Borrower as account party under any Existing Letters of
Credit. The Bank may, at its sole option, renew the Commitment for Letter of
Credit Accommodations set forth herein for one or more successive one (1)-year
periods from and after the first anniversary of the Closing Date.
SECTION 3.2 CONDITIONS PRECEDENT. The extension of Letter of Credit
Accommodations by the Bank shall be subject to the satisfaction of each of the
following conditions precedent:
(a) No letter of Credit Accommodations will be issued unless the sum
of (i) the amount of the Letter of Credit Accommodation requested, plus
fees and costs for issuance thereof, plus (ii) the aggregate amount of
Letter of Credit Accommodations and Reimbursement Obligations then
outstanding including, without limitation, the aggregate amount of the
outstanding Existing Letters of Credit, does not exceed the L/C Limit
immediately prior to the issuance of the requested Letter of Credit
Accommodation;
(b) if such Letter of Credit Accommodation is for the purpose of
purchasing goods, the Bank will have, immediately upon such purchase, a
valid and perfected first security interest in and lien upon goods being
acquired in connection therewith;
(c) the form and content of all Letter of Credit Accommodations shall
be reasonably satisfactory to the Bank or the issuer (if other than the
Bank), and all documents, instruments, notices and statements relating
thereto, if any, which the Bank or other issuer may request, shall be
promptly delivered to the Bank or such other issuer (as the case may be);
and
(d) the Borrower shall have fully complied with all terms and
provisions hereof and the terms and provisions of any agreements, in each
case relating to the requested Letter of Credit Accommodations, including
the payment of all fees, commissions and charges set forth therein and on
SCHEDULE 3.2 annexed hereto.
SECTION 3.3 OBLIGATIONS. All indebtedness, liabilities and obligations of
any sort whatsoever, however arising, whether present or future, fixed or
contingent, secured or unsecured, due or to become due, paid, arising or
incurred in connection with any Letter of Credit Accommodations shall constitute
a part of the Obligations, and shall include, without limitation, (a) all
amounts due or which may become due under any Letter of Credit Accommodations,
including without limitation, the Reimbursement Obligations, (b) all amounts
charged or chargeable to the Borrower or the Bank by any bank, other financial
institution or correspondent bank which opens, issues or pays such Letter of
Credit Accommodation; (c) the Bank's letter of credit fees and commissions set
forth on SCHEDULE 3.2 annexed hereto, costs and other charges of any issuer of
any
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Letter of Credit Accommodation; and (d) all duties, freight, taxes, costs,
insurance and all such other charges and expenses paid or incurred by the Bank
which may pertain directly or indirectly to any such Obligations or Letter of
Credit Accommodations or to any goods or documents relating thereto.
SECTION 3.4 REIMBURSEMENT OBLIGATIONS. The Borrower shall reimburse the
Bank for each drawing paid under any Letter of Credit Accommodations no later
than one (1) Business Day thereafter, which obligation shall be absolute and
unconditional under any and all circumstances, irrespective of any claim,
set-off, defense or other right that the Borrower may have at any time against
the Bank or any other Person (collectively, the 'REIMBURSEMENT OBLIGATIONS').
Any Reimbursement Obligations that are not paid when due shall accrue interest
at a rate equal to the default rate for Prime Loans set forth in Section
2.13(g)(ii), which interest shall be due and payable to the Bank without notice
or demand.
SECTION 3.5 INDEMNIFICATION. The Borrower agrees to and does hereby
indemnify the Bank with respect to any loss, cost, claims, demands, causes of
action, liability or expense which the Bank may suffer or incur arising from or
in connection with any transaction or occurrences relating to the Letter of
Credit Accommodations and any documents, drafts or acceptance thereunder or
relating thereto, including, but not limited to, any action taken by any issuer
other than the Bank or any correspondent with respect to any Letter of Credit
Accommodation (except for such loss, cost, liability or expense that arises from
the Bank's gross negligence or willful misconduct), which indemnification shall
remain in effect after the termination or non-renewal of the Letter of Credit
Facility or this Agreement, as applicable. The Borrower further agrees that any
payments made or other obligations incurred by the Bank in connection with
Letter of Credit Accommodations are part of the Obligations, and shall be
payable in accordance with the terms hereof. Any such payments made by the Bank,
including, without limitation, any of the same made after termination or
non-renewal of the Letter of Credit Facility or this Agreement or the other Loan
Documents with respect to Letter of Credit Accommodations provided to the
Borrower prior to such termination or non-renewal (exclusive of drafts paid
under any Letter of Credit Accommodation), shall accrue interest commencing on
the date such payment is made by the Bank, at the default rate for Prime Loans
set forth in Section 2.13(g)(ii).
SECTION 3.6 FEES AND COMMISSIONS. In addition to any charges, fees or
expenses charged by any bank or issuer in connection with the Letter of Credit
Accommodations, the Borrower agrees to pay to the Bank letter of credit fees and
commissions as set forth in Schedule 3.2 annexed hereto.
SECTION 3.7 L/C LIMIT. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, except in the Bank's sole
discretion, the sum of (a) the aggregate amount of all outstanding Letter of
Credit Accommodations plus (b) the aggregate amount of all outstanding
Reimbursement Obligations plus (c) all other commitments and obligations made or
incurred by the Bank pursuant hereto for the account or benefit of the Borrower
in connection with Letter of Credit Accommodations outstanding at any time shall
at no time exceed Ten Million Dollars ($10,000,000) (the 'L/C LIMIT').
SECTION 3.8 EXCULPATION AND RELEASE.
(a) The Bank shall not be responsible for (i) the validity or genuineness
of any documents delivered to the Bank or the issuer of any Letter of Credit
Accommodations, or of any endorsements thereon, even if such documents should in
fact prove to be in any or all respects invalid,
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fraudulent or forged; (ii) any default or breach of contract or other obligation
between the Borrower and the beneficiary of any Letter of Credit Accommodation
or other third parties in connection with any Letter of Credit Accommodations,
or (iii) lost profits or special or consequential damages.
(b) The Borrower agrees that any action taken by the Bank, if taken in Good
Faith, or any action taken by any other issuer of any Letter of Credit
Accommodation, shall be binding on the Borrower and shall not create any
resulting liability to the Bank. In furtherance thereof, the Bank shall have the
full right and authority to clear and resolve any questions of noncompliance of
documents delivered in connection with any Letter of Credit Accommodation; to
give any instructions as to acceptance or rejection of any documents or goods
purchased pursuant to a Letter of Credit Accommodation; and upon and during the
continuance of an Event of Default: to execute for the Borrower's account any
and all applications for steamship or airway guarantees, indemnities or delivery
orders; to grant any extensions of the maturity of, time of payment for, or time
of presentation of, any drafts, acceptances, or documents; and to agree to any
extensions of the maturity of, time of payment for, or time of presentation of,
any drafts, acceptances, or documents; and to agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications or Letter of Credit Accommodations. All of
the foregoing actions may be taken in the Bank's sole name, and any bank,
financial institution or correspondent which opens, issues or pays any Letter of
Credit Accommodation shall be entitled to comply with and honor any and all such
documents or instruments executed by or received solely from the Bank, all
without any notice to or any consent from the Borrower.
(c) The Borrower further agrees to and hereby so releases and holds the
Bank harmless for any acts, waivers, errors, delays or omissions, whether caused
by the Bank, or other issuer of any Letter of Credit Accommodations or any
correspondent or otherwise with respect to or relating to any Letter of Credit
Accommodations (except for any of the foregoing arising from the Bank's gross
negligence or willful misconduct).
SECTION 3.9 COMPLIANCE WITH LAW; BORROWER'S RISK. As between the Borrower
and the Bank, the Borrower assumes all risk, liability and responsibility for,
and agrees to pay and discharge, all present and future local, state, federal
and foreign taxes, duties or levies assessed in connection with any shipment of
goods made under any Letter of Credit Accommodations. Any embargo, restriction,
laws, customs or regulations of any country, state, city or other political
subdivision where any Collateral is or may be located, or wherein payments under
any Letter of Credit Accommodations are to be made, or wherein drafts may be
drawn, negotiated, accepted, or paid, shall, as between the Borrower and the
Bank, be solely the Borrower's risk, liability and responsibility.
SECTION 4. CONDITIONS PRECEDENT
SECTION 4.1 CONDITIONS PRECEDENT TO LOANS AND LETTER OF CREDIT
ACCOMMODATIONS AS OF CLOSING DATE. The Bank shall have no obligation to make or
provide any Loans or Letter of Credit Accommodations to the Borrower on the
Closing Date unless prior to or concurrently with the making of the Loans and/or
Letter of Credit Accommodations all of the following conditions have been
satisfied:
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(a) MERGER. The Merger shall have been fully and legally consummated
in accordance with the Merger Agreement contemporaneously with the
execution of this Agreement.
(b) NO INJUNCTION WITH RESPECT TO MERGER. No injunction or other order
issued by any court of competent jurisdiction or by any governmental or
regulatory body which prevents the consummation of the Merger as
contemplated by the Merger Agreement shall be in effect; and no proceeding
before any such court or governmental or regulatory body with any
reasonable likelihood of success shall have been commenced seeking to
enjoin the consummation of the Merger contemplated by the Merger Agreement.
(c) PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS. After giving effect
to the Merger, Parent shall have, as at the Closing Date, on a consolidated
basis and determined in accordance with GAAP:
(i) a long term debt-to-equity ratio of no greater than 3.1:1.0;
(ii) total net worth (including capital stock, earnings allocated
to members of Parent and earned surplus) of not less than fifteen
percent (15%) of total assets;
(iii) working capital of not less than One Hundred Million Dollars
($100,000,000); and
(iv) on the basis of cash flow projections reasonably acceptable to
the Bank, prepared on the basis of assumptions reasonably acceptable to
the Bank, a cash flow coverage ratio at the end of each Fiscal Year of
Parent (beginning with the Fiscal Year ending June, 1995) until the
Termination Date of (A) net income after taxes, plus depreciation, plus
amortization, plus deferred finance charges for such Fiscal Year to (B)
the current portion of long term debt, plus capital expenditures, plus
cash dividends to preferred stockholders, plus cash patronage payments
to members of Parent for such Fiscal Year, of not less than 1.0 to 1.0.
(d) SUBORDINATED DEBT. The Borrower and the Trustee shall have
executed the Subordinated Notes Indenture and the Borrower shall have
executed the Subordinated Notes, both in form and substance reasonably
satisfactory to the Bank, and the Borrower shall have received gross
proceeds from the issuance of the Subordinated Notes of not less than One
Hundred Sixty Million Dollars ($160,000,000).
(e) NO CHANGES TO THE RESTRUCTURING PROPOSAL. There shall have been no
changes to the Pro-Fac Cooperative, Inc. Restructuring Proposal, dated
August 25, 1994 and the supplement thereto, dated September 1, 1994,
describing the Borrower's proposed management structure, both previously
delivered to the Bank, other than changes thereto reasonably satisfactory
to the Bank;
(f) AGREEMENT AND NOTES. This Agreement and the Notes shall have been
duly executed and delivered by the Borrower.
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(g) GUARANTIES. The respective Guaranties to which each of the
Guarantors shall be a party, as required by Section 2.24 of this Agreement,
shall have been duly executed and delivered by each Guarantor.
(h) SECURITY DOCUMENTS. The Security Documents shall have been duly
executed and delivered by the Borrower, the Parent and the Subsidiary
Guarantors (collectively, the 'OBLIGORS'), as the case may be.
(i) FINANCING STATEMENTS. Financing statements naming each of the
Obligors, as appropriate, as debtor, and the Bank, as secured party (the
'FINANCING STATEMENTS'), shall have been executed and delivered to the
Bank, ready for filing in accordance with the Uniform Commercial Code in
those jurisdictions identified on Schedule 4.1(i) annexed hereto with the
appropriate filing offices of such jurisdictions, which Financing
Statements constitute all of the filings required to perfect the security
interests intended to be created by the Security Documents (which can be
perfected by filing financing statements).
(j) BORROWING BASE CERTIFICATE. The Bank shall have received a
Borrowing Base Certificate showing a Borrowing Base not less than the
initial Seasonal Loans requested to be made by the Bank as of the Closing
Date.
(k) NO ERISA LIABILITIES. There shall not be any material liabilities
under ERISA of Parent or Curtice-Burns in respect of any pension,
profit-sharing or other Plan now or heretofore maintained by Parent or
Curtice-Burns, except and to the extent disclosed in the most recent
audited financial statements of Parent and of Curtice-Burns or otherwise
disclosed and acceptable to the Bank.
(l) EVIDENCE OF CORPORATE ACTION; INCUMBENCY OF OFFICERS. The Bank
shall have received (i) certified copies of all corporate action taken by
PF and Curtice-Burns, including resolutions of their respective Boards of
Directors authorizing execution, delivery and performance of the Merger
Agreement, (ii) certified (as of the Closing Date) copies of all corporate
action taken by the Borrower, and each of the Guarantors, including
resolutions of their respective Boards of Directors and consent by their
respective stockholders (other than the stockholders of the Parent),
authorizing the execution, delivery, and performance of the Loan Documents
to which each is a party and (iii) a certificate (dated as of the Closing
Date) of each of the Secretary of the Borrower and each of the Guarantors,
certifying the names and true signatures of the officers of the Borrower
and each of the Guarantors, respectively, authorized to sign the Loan
Documents to which each is a party.
(m) GOOD STANDING. The Bank shall have received certificates of good
standing for each of the Borrower and each of the Guarantors issued by
their respective jurisdictions of incorporation and each jurisdiction in
which each of them, respectively, is qualified as a foreign corporation, as
set forth in Schedule 4.1(m) annexed hereto.
(n) REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. The Borrower shall have
delivered to the Bank an officer's certificate, dated the Closing Date,
stating that (i) the representations and warranties contained in this
Agreement are true and correct on and as of the Closing Date, and (ii) no
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Default or Event of Default has occurred and is continuing, or would result
after giving effect to any of the Loans and the Letter of Credit Accommodations.
(o) TITLE REPORTS, TITLE INSURANCE AND SURVEY. The Bank shall have
received: (i) an ALTA title report updated through a date reasonably acceptable
to the Bank with respect to all Real Property Collateral with respect to which
the Borrower and any Subsidiary shall deliver a Mortgage to the Bank pursuant to
Section 2.25.
(p) INSURANCE. The Borrower shall have obtained or caused to be obtained
the insurance and endorsements thereto required to be obtained under Section 6.5
and the Security Documents.
(q) NO MERGER OR CHANGE IN CONTROL. EXCEPT FOR (I) THE MERGER, (II) THE
TRANSFER BY PARENT TO PF ON OR PRIOR TO THE CLOSING DATE OF ALL, OR
SUBSTANTIALLY ALL, OF PARENT'S FIXED ASSETS, AND (III) THE TRANSACTIONS SET
FORTH ON SCHEDULE 4.1(q), none of the Borrower, Parent or any of the
Subsidiaries shall have consolidated or merged with, been wound up into or sold,
leased or otherwise disposed of its properties as an entirety or substantially
as an entirety to, any Person since June 23, 1994.
(r) OPINION OF COUNSEL FOR THE BORROWER AND GUARANTORS. The Bank and its
counsel shall have received from Howard, Darby & Levin and Harris Beach &
Wilcox, counsel for the Borrower, Parent and the Subsidiaries, an opinion dated
the Closing Date, in form and substance satisfactory to the Bank and its
counsel, to the effect specified in EXHIBIT K AND EXHIBIT L annexed hereto,
respectively, and covering such other matters incident to the transactions
contemplated hereby as the Bank and its counsel may reasonably request.
(s) FEES AND DISBURSEMENTS OF COUNSEL FOR THE BANK. Counsel for the Bank
shall have received payment of any statements rendered for its reasonable fees
and disbursements posted through the date of such statement (with the
understanding that supplemental statements for reasonable fees and disbursements
subsequently posted will be rendered thereafter) for services rendered and
disbursements made in connection with this Agreement and the transactions
contemplated hereby.
(t) PROCEEDINGS SATISFACTORY. All proceedings and actions taken on or prior
to the Closing Date in connection with the transactions contemplated by this
Agreement, the Guaranties, the Security Documents, the Subordinated Notes
Indenture and the Subordinated Notes and all instruments incident thereto, shall
be in form and substance reasonably satisfactory to the Bank and its counsel,
and the Bank and its counsel shall have received copies of all documents that
the Bank or its counsel may reasonably request in connection with such
proceedings, actions and transactions (including, without limitation, copies of
documents required to give legal effect to the Merger filed with the Secretary
of State of the State of New York, certifications and evidence of the
correctness of the representations and warranties contained herein and
certifications and evidence of the compliance with the terms and the fulfillment
of the conditions of the Merger Agreement, this Agreement, the Guaranties, the
Security Documents, the Subordinated Notes Indenture and the Subordinated Notes,
in form and substance reasonably satisfactory to the Bank and its counsel).
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SECTION 4.2 CONDITIONS PRECEDENT TO ALL LOANS AND LETTER OF CREDIT
ACCOMMODATIONS. The obligation of the Bank to make each Loan and any Letter of
Credit Accommodation (including the initial Loans and Letter of Credit
Accommodations) shall be subject to the further conditions precedent that on the
date of such Loan or Letter of Credit Accommodation, as the case may be:
(a) The following statements shall be true and, at the Bank's request,
the Bank shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date of such Loan or Letter of Credit
Accommodation, as the case may be, stating that:
(i)The representations and warranties contained in Section 5 of
this Agreement (other than Sections 5.5, 5.6, 5.9, 5.10, 5.13 and 5.14),
in paragraph 7 of the Parent Guaranty (other than paragraphs 7.6, 7.7,
7.10, 7.11, 7.14 and 7.15), in the Security Documents (other than
Sections 4(e) through (h), inclusive, of each of the Parent Security
Agreement, the Borrower Security Agreement and the Subsidiaries Security
Agreement), and in the Guaranties are correct in all material respects
on and as of the date of such Loan or Letter of Credit Accommodation, as
the case may be, as though made on and as of such date; and
(ii) No Default or Event of Default has occurred and is continuing
or would result from such Loan or Letter of Credit Accommodation, as the
case may be; and
(b) If requested by the Bank in connection with any Loan, the Bank
shall have received a Borrowing Base Certificate dated as of the Funding
Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank the following, each of
which shall survive the closing of the transactions contemplated hereby.
SECTION 5.1 INCORPORATION, GOOD STANDING, AND DUE QUALIFICATION. The
Borrower and each of its operating Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own
its assets and to transact the business in which it is now engaged or proposes
to be engaged in; and is duly qualified as a foreign corporation and in good
standing under the laws of each other jurisdiction in which such qualification
is required, except where the failure to be so qualified would not have a
material adverse effect on the Borrower and its operating subsidiaries, taken as
a whole.
SECTION 5.2 CORPORATE POWER AND AUTHORITY. The execution, delivery, and
performance by the Borrower and the Subsidiaries of the Loan Documents to which
each is a party have been duly authorized by all necessary corporate action and
do not and will not (a) require any consent or approval of the stockholders of
such corporation that has not been obtained; (b) contravene such corporation's
charter or bylaws; (c) violate any provision of any law, rule, regulation
(including, without limitation Regulations U and X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree,
determination, or award presently in effect having applicability to such
corporation; (d) result in a breach of
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or constitute a default under any material indenture, including, without
limitation, the Subordinated Notes Indenture, or material loan or credit
agreement or any other agreement, lease or instrument to which such corporation
is a party or by which it or its properties may be bound or affected; or (e)
result in, or require, the creation or imposition of any Lien upon or with
respect to any of the properties now owned or hereafter acquired by such
corporation, except as contemplated by the Loan Documents.
SECTION 5.3 LEGALLY ENFORCEABLE AGREEMENT. This Agreement is, and each of
the other Loan Documents when delivered under this Agreement will be, legal,
valid and binding obligations of Parent, the Borrower or the Subsidiaries, as
the case may be, enforceable against Parent, the Borrower or the Subsidiaries,
as the case may be, in accordance with their respective terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency, and other similar laws affecting creditors' rights generally.
SECTION 5.4 LABOR DISPUTES AND ACTS OF GOD. Neither the business nor the
properties of the Borrower or any Subsidiary are affected by any fire,
explosion, accident, strike, lockout, or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of a public enemy, or other casualty
(whether or not covered by insurance), materially and adversely affecting such
business or properties or the operation of the Borrower and it Subsidiaries,
taken as a whole, except as has been disclosed to the Bank.
SECTION 5.5 OTHER AGREEMENTS. Except as set forth in SCHEDULE 5.5, neither
the Borrower nor any Subsidiary is a party to any indenture, loan or credit
agreement or to any lease or other agreement or instrument or subject to any
charter or corporate restriction which is reasonably likely to have a material
adverse effect on the business, properties, assets, operations or conditions,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole,
or the ability of the Borrower or any Subsidiary to carry out its obligations
under the Loan Documents to which it is a party. Except as set forth in SCHEDULE
5.5, neither the Borrower nor any Subsidiary is in default in any material
respect of the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument material to its
business to which it is a party.
SECTION 5.6 LITIGATION. Except as disclosed in SCHEDULE 5.6, there is no
pending or, to the Borrower's knowledge, threatened action or proceeding against
or affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which is reasonably likely to, in any one
case or in the aggregate, materially adversely affect the financial condition,
operations, properties or business of the Borrower and its Subsidiaries, taken
as a whole, or the ability of the Borrower or any Subsidiary to perform its
obligations under the Loan Documents to which it is a party.
SECTION 5.7 NO DEFAULTS ON OUTSTANDING JUDGMENTS OR ORDERS. The Borrower
and its Subsidiaries have complied with their respective obligations under all
judgments in excess of Five Hundred Thousand Dollars ($500,000) and neither the
Borrower nor any Subsidiary is in default with respect to any material judgment,
writ, injunction, decree rule, or regulation of any court, arbitrator or
federal, state, municipal, or other governmental authority, commission, board,
bureau, agency or instrumentality domestic or foreign.
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SECTION 5.8 OWNERSHIP AND LIENS. The Borrower and each Subsidiary has title
to, or valid leasehold interests in, all of their properties and assets, real
and personal, and none of the properties and assets owned by the Borrower or any
Subsidiary and none of their leasehold interests is subject to any Lien, except
for Permitted Liens, and except for such interests, properties and assets as are
no longer used or useful in the conduct of its business or as have been disposed
of in the ordinary course of business.
SECTION 5.9 SUBSIDIARIES AND OWNERSHIP OF STOCK. Set forth in SCHEDULE 5.9
is a complete and accurate list of the Subsidiaries of the Borrower, showing
which Subsidiaries are operating, the jurisdiction of incorporation of each and
showing the ownership of the outstanding stock of each Subsidiary. All of the
outstanding capital stock of each such Subsidiary has been validly issued, is
fully paid and nonassessable and is owned by the Borrower free and clear of all
Liens, except for Permitted Liens.
SECTION 5.10 ERISA. The Borrower and each Subsidiary are in compliance in
all material respects with all applicable provisions of ERISA. Neither a
Reportable Event nor a Prohibited Transaction is continuing with respect to any
Plan; except as set forth in Schedule 5.10, no notice of intent to terminate a
Plan has been filed nor has any Plan been terminated since September 1, 1989; no
circumstances exist which constitute grounds entitling the PBGC to institute
proceedings to terminate or appoint a trustee to administer a Plan, nor has the
PBGC instituted any such proceedings; except as set forth in SCHEDULE 5.10,
neither the Borrower nor any Commonly Controlled Entity has completely or
partially withdrawn from a Multiemployer Plan since September 1, 1989; the
Borrower and each Commonly Controlled Entity have met their minimum funding
requirements under ERISA with respect to all of their Plans and, except as set
forth in Schedule 5.10, the present value of all vested benefits under each Plan
does not exceed the fair market value of all Plan assets allocable to such
benefits, as determined on the most recent valuation date of the Plan and in
accordance with the provisions of ERISA; and neither the Borrower nor any
Commonly Controlled Entity has incurred any liability to the PBGC under ERISA.
SECTION 5.11 OPERATION OF BUSINESS. The Borrower and its Subsidiaries
possess all licenses, permits, franchises, patents, copyrights, trademarks, and
trade names or rights thereto, to conduct their respective businesses
substantially as now conducted and as presently proposed to be conducted and the
Borrower and its Subsidiaries are not in violation of any valid rights of others
with respect to any of the foregoing, except where the failure to possess or any
such violation would not have a material adverse effect on the Borrower and its
Subsidiaries, taken as a whole.
SECTION 5.12 TAXES. Except as set forth in SCHEDULE 5.12, the Borrower and
each of its Subsidiaries have filed all tax returns (federal, state, and local)
required to be filed and have paid all taxes, assessments, and governmental
charges and levies thereon to be due including interest and penalties. The
federal income tax liabilities of the Borrower and its Subsidiaries have been
audited by the Internal Revenue Service and have been finally determined and
satisfied for all taxable years up to and including the taxable year 1988.
SECTION 5.13 DEBT. SCHEDULE 5.13 is a complete and correct list of all
credit agreements, indentures, purchase agreements, guaranties, Capital Leases,
and other agreements, and arrangements presently in effect providing for or
relating to extensions of credit for borrowed money (including agreements and
arrangements for the issuance of letters of credit or for acceptance financing)
in respect of which the
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Borrower or any Subsidiary is in any manner directly or contingently obligated
in an aggregate principal amount in excess of Two Hundred Fifty Thousand Dollars
$250,000; and the maximum principal or face amounts of the credit in question
outstanding, as of August 27, 1994, are correctly stated, and all Liens of any
nature given or agreed to be given as security therefor are correctly described
or indicated in such Schedule.
SECTION 5.14 ENVIRONMENT. Except as set forth in SCHEDULE 5.14, to the best
of the Borrower's knowledge, the Borrower and each Subsidiary have duly complied
with and their businesses, operations, assets, equipment, property, leaseholds
or other facilities are in compliance with the provisions of all federal, state
and local environmental, health and safety laws, codes and ordinances and all
rules and regulations promulgated thereunder. To the best of the Borrower's
knowledge, the Borrower and each Subsidiary have been issued all required
federal, state and local permits, licenses certificates and approvals relating
to (a) air emissions; (b) discharges to surface water or groundwater; (c) noise
emissions; (d) solid or liquid waste disposal; (e) the use, generation, storage,
transportation, or disposal of toxic or hazardous substances or wastes (intended
hereby and hereafter to include any and all such materials listed in any
federal, state, or local law, code or ordinance and all rules and regulations
promulgated thereunder as hazardous or potentially hazardous); or (f) other
environmental, health, or safety matters. A true, accurate, complete and current
list of all such permits, licenses, certificates and approvals has been
delivered to the Bank. Except as set forth in SCHEDULE 5.14, neither the
Borrower nor any Subsidiary has received notice of, nor knows of nor suspects
facts which might constitute any violations of, any federal, state, or local
environmental, health or safety laws, codes or ordinances, and any rules or
regulations promulgated thereunder with respect to its businesses, operations,
assets, equipment, property, leaseholds, or other facilities. Except as
described in SCHEDULE 5.14, to the best of the Borrower's knowledge, there has
been no emission, spill, release, or discharge into or upon (a) the air; (b)
soils, or any improvements located thereon; (c) surface water or groundwater; or
(d) the sewer, septic system or waste treatment, storage or disposal system
servicing the premises, in violation of any applicable law, of any toxic or
hazardous substances or wastes at or from the premises; and the premises of the
Borrower and its Subsidiaries are free of all such toxic or hazardous substances
or wastes. Except as set forth in SCHEDULE 5.14, to the best of the Borrower's
knowledge, there has been no complaint, order, directive, claim, citation, or
notice by any governmental authority or any person or entity with respect to (a)
air emissions; (b) spills releases, or discharges to soils or improvements
located thereon surface water, groundwater or the sewer, septic system or waste
treatment, storage or disposal systems servicing the premises; (c) noise
emissions; (d) solid or liquid waste disposal; (f) the use, generation, storage,
transportation, or disposal of toxic or hazardous substances or waste; or (g)
other environmental, health or safety matters affecting the Borrower or any of
their businesses, operations, assets, equipment, property, leaseholds, or other
facilities. To the best of the Borrower's knowledge, neither the Borrower nor
its Subsidiaries have any indebtedness, obligations, or liability, absolute or
contingent, matured or not matured, with respect to the storage, treatment,
cleanup or disposal of any solid wastes, hazardous wastes, or other toxic or
hazardous substances (including without limitation any such indebtedness,
obligation or liability with respect to any current regulation, law, or statute
regarding such storage, treatment, cleanup, or disposal) which is not shown on
SCHEDULE 5.14. Set forth in SCHEDULE 5.14 is a list of all real property owned
or leased by the Borrower and its Subsidiaries at any time since November 1,
1991 wherever located, and a brief description of the business conducted at such
location.
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SECTION 5.15 SOLVENCY. After giving effect to the Merger, the Borrower is
solvent, is able to pay its debts as they become due and has capital sufficient
to carry on its business as presently conducted and all businesses in which it
is about to engage, and owns property having a value both at fair valuation and
at present fair salable value greater than the amount required to pay Borrower's
Debts. The Borrower will not be rendered insolvent by the execution and delivery
of this Agreement or any of the other Loan Documents or by the transactions
contemplated hereunder or thereunder.
SECTION 6. AFFIRMATIVE COVENANTS
So long as any Obligations shall remain unpaid or the Bank shall have any
Commitment under this Agreement, the Borrower will:
SECTION 6.1 MAINTENANCE OF EXISTENCE. Preserve and maintain, and cause each
operating Subsidiary to preserve and maintain, its corporate existence and good
standing in the jurisdiction of its incorporation, and qualify and remain
qualified, and cause each operating Subsidiary to qualify and remain qualified,
as a foreign corporation in each jurisdiction in which such qualification is
required, except where the failure to be so qualified would not have a material
adverse effect on the Borrower and its operating Subsidiaries, taken as a whole,
and except as otherwise contemplated by Section 7.3.
SECTION 6.2 MAINTENANCE OF RECORDS. Keep, and cause each operating
Subsidiary to keep, adequate records and books of account, in which complete
entries will be made in accordance with GAAP (in all material respects)
consistently applied, reflecting all financial transactions of the Borrower and
its operating Subsidiaries.
SECTION 6.3 MAINTENANCE OF PROPERTIES. Maintain, keep, and preserve, and
cause each operating Subsidiary to maintain, keep, and preserve, all of its
properties (tangible and intangible) necessary or useful in the proper conduct
of its business in good working order and condition, ordinary wear and tear
excepted.
SECTION 6.4 CONDUCT OF BUSINESS. Continue, and cause each operating
Subsidiary to continue, to engage in a business of the same general type as
conducted by it on the date of this Agreement and to not permit any
non-operating Subsidiary to engage in a business other than one of the same
general type as conducted by the Borrower or any Subsidiary on the date of this
Agreement.
SECTION 6.5 MAINTENANCE OF INSURANCE. Maintain, and cause each Subsidiary
to maintain, insurance with financially sound and reputable insurance companies
or associations in such amounts and covering such risks as are usually carried
by companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
SECTION 6.6 COMPLIANCE WITH LAWS. Comply, and cause each Subsidiary to
comply, in all material respects with all applicable laws, rules, regulations,
and orders, such compliance to include, without limitation, paying before the
same become delinquent all taxes, assessments, and governmental charges
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imposed upon it or upon its property, except for such taxes, assessments and
other charges being contested in Good Faith by appropriate proceedings and for
which appropriate reserves are maintained.
SECTION 6.7 RIGHT OF INSPECTION. At any reasonable time and from time to
time, upon at least two (2) Business Days' notice prior to the occurrence of an
Event of Default and at any time and without prior notice upon and during the
continuance of an Event of Default, permit the Bank or any agent or
representative thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any Subsidiary, and to discuss the affairs, finances, and accounts of the
Borrower and any Subsidiary with any of their respective officers and directors
and the Borrower's independent accountants.
SECTION 6.8 ENVIRONMENT. (a) Except as set forth in SCHEDULE 5.14, be and
remain, and cause each Subsidiary to be and remain, in compliance in all
material respects with the provisions of all federal, state, and local
environmental, health and safety laws, codes and ordinances, and all rules and
regulations issued thereunder, provided that, with respect to the matters set
forth in SCHEDULE 5.14, diligently exercise its reasonable commercial efforts to
remedy, and cause each Subsidiary to diligently exercise its reasonable
commercial efforts to remedy, same; notify the Bank immediately of any notice of
a hazardous discharge or environmental complaint received from any governmental
agency or any other party; notify the Bank promptly after becoming aware of any
hazardous discharge from or affecting its premises; immediately contain and
remove the same, in compliance with all applicable laws; promptly pay any fine
or penalty assessed in connection therewith, except as such fine or penalty is
being contested in Good Faith by appropriate proceedings and for which
appropriate reserves are maintained; permit the Bank to, upon reasonable notice
prior to the occurrence of an Event of Default and at any time and without prior
notice upon and during the continuance of an Event of Default, inspect the
premises, to conduct tests thereon and to inspect all books, correspondence, and
records pertaining thereto;
(b) At the Bank's request, and at the Borrower's expense, provide a report
with respect to any Real Property Collateral designated by the Bank of a
qualified environmental engineer, reasonably satisfactory in scope, form and
content to the Bank.
SECTION 6.9 MONTHLY BORROWING BASE CERTIFICATES. At any time a Seasonal
Loan is outstanding, furnish to the Bank within twenty (20) days of the end of
each month a Borrowing Base Certificate ('Borrowing Base Certificate') in
substantially the form of EXHIBIT M.
SECTION 6.10 TITLE REPORTS, TITLE INSURANCE AND SURVEY. At the Bank's
request and at the Borrower's expense, promptly provide the Bank with: (i) an
ALTA Lender's mortgagee title insurance policy with respect to each Mortgage
delivered to the Bank pursuant to Section 2.25, in form and substance reasonably
satisfactory to the Bank and its counsel, each of which policies shall (A) be
issued by a title insurance company or companies reasonably acceptable to the
Bank (B) be in an aggregate amount reasonably acceptable to the Bank and (C)
insure the priority of each Mortgage, subject only to Permitted Liens, and (ii)
a current as-built survey, satisfactory to the Bank for any Real Property
Collateral designated by the Bank.
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SECTION 7. NEGATIVE COVENANTS
So long as any Obligations shall remain unpaid or the Bank shall have any
Commitment under this Agreement, the Borrower will not:
SECTION 7.1 LIENS. Create, incur, assume, or suffer to exist, or permit any
Subsidiary to create, incur, assume, or suffer to exist, any Lien, upon or with
respect to any of its properties now owned or hereafter acquired, except the
following (collectively, the 'PERMITTED LIENS'):
(a) Liens in favor of the Bank;
(b) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or, if due and payable, if they are being
contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(c) Liens imposed by law, such as mechanics', materialmen's,
landlord's, warehousemen's, and carrier's Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are
not past due for more than ninety (90) days or which are being contested in
good faith by appropriate proceedings and for which appropriate reserves
have been established;
(d) Liens under workers' compensation, unemployment insurance, Social
Security, or similar legislation, securing obligations that are not past
due and for which appropriate reserves have been established;
(e) Monetary deposits or pledges or bonds to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money),
leases (permitted under the terms of this Agreement), public or statutory
obligations, surety, stay, appeal, indemnity, performance or other similar
bonds, or other similar obligations arising in the ordinary course of
business;
(f) Judgment and other similar Liens other than those, or any portion
thereof, for which an insurance company has unconditionally agreed to
provide coverage, securing Debt in an amount not in excess of $250,000
arising in connection with court proceedings, provided the execution or
other enforcement of such Liens is effectively stayed and the claims
secured thereby are being actively contested in good faith and by
appropriate proceedings;
(g) Easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use, and enjoyment by the Borrower or any Subsidiary of the
property or assets encumbered thereby in the normal course of its business
or materially impair the value of the property subject thereto;
(h) Liens securing obligations of a Subsidiary to the Borrower, the
Parent or another Subsidiary;
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(i) Purchase-money Liens on any property hereafter acquired or the
assumption of any Lien on property existing at the time of such acquisition
(and not created in contemplation of such acquisition), or a Lien incurred
in connection with any conditional sale or other title retention agreement;
provided that:
(i) Any property subject to any of the foregoing is acquired by the
Borrower or any Subsidiary in the ordinary course of its respective
business and the Lien on any such property attaches to such asset
concurrently or within twenty (20) days after the acquisition thereof;
(ii) The obligation secured by any Lien so created, assumed or
existing shall not exceed the lesser of the cost or the fair market
value as of the time of acquisition of the property covered thereby to
the Borrower or Subsidiary acquiring the same;
(iii) Each such Lien shall attach only to the property so acquired
and fixed improvements thereon;
(iv) The Debt secured by all such Liens shall not exceed One
Hundred Thousand Dollars ($100,000) at any time outstanding in the
aggregate; and (v) The Debt secured by such Lien is permitted by the
provisions of Section 7.2, and the related expenditure is permitted
under Paragraph 10.6 of the Parent Guaranty;
(j) Liens permitted under any of the other Loan Documents;
(k) Subject to compliance by the Borrower and its Subsidiaries with
the covenants contained in the Borrower Security Agreement and the
Subsidiaries Security Agreement, respectively, (a) Liens on farm products
purchased by the Borrower or any Subsidiary and on accounts arising from
the sale thereof in favor of the sellers of such farm products, or any
secured lender to any such seller, and (b) statutory trusts created under
the Perishable Agricultural Commodities Act in favor of the Borrower's or
any Subsidiary's suppliers of food products derived from perishable
agricultural commodities; and
(l) Liens pursuant to Capital Leases permitted under Section 7.2(h).
SECTION 7.2 DEBT. Create incur, assume, or suffer to exist, or permit any
Subsidiary to create incur, assume, or suffer to exist any Debt, except:
(a) Debt of the Borrower under this Agreement, including, without
limitation, the assumption of the Obligations evidenced by the Existing
Letters of Credit and Debt of any Subsidiary Guarantor under a Subsidiary
Guaranty;
(b) Debt described in SCHEDULE 7.2(B), but no voluntary prepayment,
renewals, extensions, or refinancings thereof, except for renewals or
extensions of Capital Leases or as described on such Schedule.
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(c) The Debt evidenced by the Subordinated Notes (and guarantees
thereof by the Parent and the Subsidiaries) and other Debt of the Borrower
subordinated on terms reasonably satisfactory to the Bank to the Borrower's
obligations under this Agreement;
(d) Debt of the Borrower to any Subsidiary or of any Subsidiary to the
Borrower or another Subsidiary;
(e) Accounts payable to trade creditors for goods or services and
current operating liabilities (other than for borrowed money), of which an
aggregate amount not in excess of One Hundred Thousand Dollars ($100,000)
is more than ninety (90) days past due at any time, in each case incurred
in the ordinary course of business, as presently conducted, and paid within
the specified time, unless contested in good faith and by appropriate
proceedings;
(f) Debt of the Borrower or any Subsidiary secured by purchase-money
Liens permitted by Section 7.1(i);
(g) Debt arising under the Marketing Agreement;
(h) Debt of the Borrower or any Subsidiary in respect of any Capital
Lease in an aggregate principal amount not in excess of Four Million
Dollars ($4,000,000) at any time outstanding;
(i) Debt of the Borrower for the purpose of fixing or hedging interest
rate risk of other Debt permitted under this Agreement;
(j) Debt with respect to deferred compensation arrangements,
post-retirement benefits and other employee, unemployment or retiree
benefits, in each case incurred in the ordinary course of business and
consistent with past practice;
(k) Debt for taxes payable (but not past due, unless being contested
in Good Faith by appropriate proceedings and for which appropriate reserves
have been made) or deferred in accordance with the Code or other applicable
law;
(l) Debt arising under guaranties permitted under Section 7.9; and
(m) Debt (other than Debt permitted pursuant to clauses (a) through
(l) of this Section 7.2) in an aggregate amount not to exceed One Million
Dollars ($1,000,000) at any time outstanding.
SECTION 7.3 MERGERS, ETC. Except for the Merger, wind up, liquidate or
dissolve itself, reorganize, merge or consolidate with or into or convey, sell,
assign, transfer, lease, or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or acquire all or substantially all
of the assets or the business of any Person, or permit any Subsidiary to do so,
except subject to prior written notice to the Bank, (a) that any Subsidiary may
merge into or transfer assets to the Borrower, (b) that any Subsidiary may merge
into or
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consolidate with or transfer assets to any other Subsidiary, and (c) in
connection with any of the transactions described in Schedule 4.1(q).
SECTION 7.4 LEASES. Create, incur, assume, or suffer to exist, or permit
any Subsidiary to create, incur, assume, or suffer to exist, any obligation as
lessee for the rental or hire of any real or personal property, except: (a)
Capital Leases permitted by Section 7.2(h), (b) leases (other than Capital
Leases) which do not in the aggregate require the Borrower and its Subsidiaries
on a consolidated basis to make payments (including taxes, insurance,
maintenance, and similar expenses which the Borrower or any Subsidiary is
required to pay under the terms of any lease) in any Fiscal Year of the Borrower
in excess of Fifteen Million Dollars ($15,000,000); and (c) leases between the
Borrower and any Subsidiary or between any Subsidiaries.
SECTION 7.5 SALE AND LEASEBACK. Sell, transfer, or otherwise dispose of, or
permit any Subsidiary to sell, transfer or otherwise dispose of any real or
personal property to any Person and thereafter directly or indirectly lease back
the same or similar property.
SECTION 7.6 [INTENTIONALLY OMITTED].
SECTION 7.7 SALE OF ASSETS. Sell, lease, assign, transfer, or otherwise
dispose of or permit any Subsidiary to sell, lease, assign, transfer, or
otherwise dispose of, any of its now owned or hereafter acquired assets
(including, without limitation, shares of stock and indebtedness of
Subsidiaries, accounts receivable, and leasehold interests), except: (a)
inventory disposed of in the ordinary course of business; (b) the sale or other
disposition of assets no longer used or useful in the conduct of its business;
(c) that any Subsidiary may sell, lease, assign, or otherwise transfer its
assets to the Borrower or to another subsidiary located in the Continental
United States; (d) as contemplated by the transactions described in Schedule
4.1(q); (e) assets (including shares of stock disposed of that have a fair
market value not exceeding Five Hundred Thousand Dollars ($500,000) in the
aggregate for each Fiscal Year of the Borrower; and (f) assets (including shares
of stock) disposed of for net proceeds not in excess of Five Hundred Thousand
Dollars ($500,000) in the aggregate for such Fiscal Year. Net proceeds arising
from sales of assets permitted by subsection (d), (e) and (f) of this Section
7.7 shall be promptly delivered to the Bank, and together with any proceeds
delivered to the Bank pursuant to paragraph 9.7 of the Parent Guaranty, shall be
applied by the Bank as a prepayment of the Term Loan or the Term Loan Facility
Loan, as elected by the Borrower in the manner provided by Section 2.16.
SECTION 7.8 INVESTMENTS. Make, or permit any Subsidiary to make, any loan
or advance to any Person or purchase or otherwise acquire, or permit any
Subsidiary to purchase or otherwise acquire, any capital stock, assets,
obligations, or other securities of, make any capital contribution to, or
otherwise invest in or acquire any interest in any Person, or participate as a
partner or joint venturer with any other Person, except: (a) direct obligations
of the United States or any agency thereof with maturities of one year or less
from the date of acquisition; (b) commercial paper of a domestic issuer rated at
least 'A-1' by Standard & Poor's Corporation or 'P-1' by Moody's Investors
Service, Inc.; (c) time deposits and certificates of deposit with maturities of
one year or less from the date of acquisition issued by any United States
commercial bank having capital and surplus in excess of One Hundred Million
Dollars ($100,000,000) in an amount for each time deposit account and each such
certificate of deposit not in excess of the maximum FDIC insured amount
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with respect thereto; and (d) stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to the
Borrower or any Subsidiary; (e) pursuant to the Marketing Agreement, (f)
obligations or securities of the Borrower or any of the Borrower's Subsidiaries
held by the Borrower or any Subsidiary in another Subsidiary, (g) loans of up to
Ten Million Dollars ($10,000,000) in principal amount at any time outstanding
from the Borrower to the Parent for the Parent's working capital purposes, which
bear interest at a rate at least equal to the rate that would have been then
applicable to the Seasonal Loans made as Prime Loans on the date such loans from
the Borrower to the Parent were made and (h) investments permitted or required
under Section 8.
SECTION 7.9 GUARANTIES, ETC. Assume, guaranty, endorse, or otherwise be or
become directly or contingently responsible or liable, or permit any Subsidiary
to assume, guaranty, endorse, or otherwise be or become directly or contingently
responsible or liable (including, but not limited to, an agreement to purchase
any obligation, stock, assets, goods, or services, or to supply or advance any
funds, assets goods, or services, or an agreement to maintain or cause such
Person to maintain a minimum working capital or net worth, or otherwise to
assure the creditors of any Person against loss), for obligations of any Person,
except guaranties pursuant to the Loan Documents and by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business and guaranties of Debt permitted under Section 7.2.
SECTION 7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate, or permit any Subsidiary to
enter into any transaction, including, without limitation, the purchase, sale,
or exchange of property or the rendering of any service, with any Affiliate,
except (a) the Borrower and the Subsidiaries will not be prohibited from
declaring or paying any lawful dividend so long as, immediately after giving
effect thereto, no Default shall have occurred and be continuing, (b)
transactions and conduct entered into pursuant to the Marketing Agreement shall
not be prohibited, (c) transactions and conduct permitted by Section 9.6 of the
Parent Guaranty or otherwise by this Agreement shall not be prohibited and (d)
the Borrower and its Subsidiaries shall be entitled to enter into transactions
in the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon terms no less favorable to the
Borrower or such Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
SECTION 7.11 FISCAL YEAR. Change, or permit any Subsidiary to change, its
Fiscal Year.
SECTION 8. INVESTMENT BY BORROWER IN STOCK OF BANK
SECTION 8.1 INITIAL INVESTMENT IN CLASS C STOCK. The Borrower shall
purchase from the Bank on the Closing Date Class C Stock of the Bank (the 'BANK
STOCK') with an aggregate par value equal to the lesser of (a) One Thousand
Dollars ($1,000) and (b) two percent (2%) of the aggregate Loans made on the
Closing Date, provided, however, the Borrower shall have satisfied the foregoing
requirement if the Parent shall have transferred to the Borrower, on or before
the Closing Date, the Parent's entire existing investment in the Bank Stock.
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SECTION 8.2 QUARTERLY INVESTMENT IN CLASS C STOCK. In addition to the
initial purchase of Bank Stock required by Section 8.1, the Borrower shall
purchase additional Bank Stock from the Bank on a quarterly basis, on the first
day of each January, April, July and October at a purchase price equal to its
book value, but not exceeding the par value of One Hundred Dollars ($100.00) per
share, in such amount as is established in the Bank's capitalization by-laws and
capitalization plan, as in effect from time to time and, from and after the
merger of the Bank with and into CoBank, at such purchase price and in such
amounts as shall be established in CoBank's capitalization by-laws and
capitalization plan as in effect from time to time. The Bank shall issue
evidence of said stock purchase to the Borrower as of the end of each Fiscal
Year of the Bank in the amount of the payments made by the Borrower for Bank
Stock during the Fiscal Year.
SECTION 8.3 SECURITY FOR BANK STOCK PURCHASE OBLIGATIONS. The obligations
of the Borrower to purchase Bank Stock set forth in Sections 8.1 and 8.2 shall
be secured by the Collateral.
SECTION 8.4 PLEDGE OF BANK STOCK AND PATRON'S EQUITIES. All shares of Bank
Stock and equity interests now or hereafter acquired by the Borrower in and to
the allocated contingency reserves and allocated surplus of the Bank, now or
hereafter existing, shall be and hereby are pledged to the Bank as security for
payment of all Obligations of the Borrower to the Bank, including, without
limitation, the obligation to purchase Bank Stock set forth in Sections 8.1 and
8.2. If an Event of Default shall occur, in addition to and not in limitation of
the Bank's rights and remedies set forth in Section 9, the Bank may, at its
option, and in accordance with any applicable regulations of the Farm Credit
Administration, (a) retire and cancel all or any part of the Bank Stock owned by
the Borrower, whereupon the Bank shall credit against the then outstanding
obligations an amount equal to the fair market value of such cancelled Bank
Stock, but not exceeding par value thereof, and/or (b) cancel all or part of the
Borrower's equity interests and interests in the allocated contingency reserves
and allocated surplus of the Bank, the aggregate amount of which shall thereupon
be credited against the then outstanding Obligations.
SECTION 9. EVENTS OF DEFAULT
SECTION 9.1 EVENTS OF DEFAULT. The occurrence or existence of any one or
more of the following events or conditions shall constitute an 'Event of
Default':
(a) The Borrower fails to make any payment or prepayment of the
principal of, any of the Notes, as and when the same becomes due and
payable, whether at maturity, at a date fixed for prepayment, upon
acceleration or otherwise and such failure continues for thirty (30)
Business Days; or
(b) The Borrower fails to pay any Reimbursement Obligations as and
when the same become due and payable; or
(c) The Borrower fails to make any payment of interest under any of
the Notes or with respect to any Reimbursement Obligations as and when the
same becomes due and payable and such failure continues for thirty (30)
Business Days following the date on which such payment was due and payable
after the Bank gives notice thereof to the Borrower; or
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(d) The Borrower fails to pay any other amounts due and payable under
this Agreement as and when due and payable and such failure continues for
thirty (30) Business Days after the Bank gives notice thereof to the
Borrower; or
(e) Any representation or warranty made or deemed made by the Borrower
in this Agreement or by the Borrower or any Guarantor in any other Loan
Document or which is contained in any certificate, document, opinion, or
any financial statement furnished pursuant to the Parent Guaranty or any
other financial or other statement furnished at any time pursuant to any
Loan Document, shall prove to have been incorrect, incomplete, or
misleading in any material respect on or as of the date made or deemed
made, unless the facts underlying such representation or warranty are
susceptible or being changed and are in fact changed within thirty (30)
days after notice to the Borrower of such inaccuracy so that such
representation or warranty would, upon such change, be correct in all
material respects;
(f) The Borrower shall default in the due and punctual performance of
or compliance with any covenant, condition or agreement to be performed or
observed by it under Sections 7.1, 7.3, 7.5, or 7.7 or shall use the
proceeds of the Loans other than as required by Section 2.18; or
(g) The Borrower or any of its Subsidiaries shall fail to duly and
punctually perform or observe any term, covenant or agreement contained in
any Loan Document on its part to be performed or observed, other than those
described in Sections 9.1(a), (b), (c) (d), (e) and (f), and any such
failure shall continue unremedied for thirty (30) days after the Bank gives
notice thereof to the Borrower; or
(h) Parent shall fail to duly and punctually perform or observe any
term, covenant or agreement contained in Paragraphs 9.1, 9.3, 9.5, 9.6,
9.7, 10.1, 10.2, 10.3, 10.4, or 10.5 of the Parent Guaranty; or
(i) Parent shall fail to duly or punctually perform or observe any
term, covenant or agreement contained in the Parent Guaranty, other than
those described in Sections 9.1(e) and (h) hereof, and any such failure
shall continue unremedied for thirty (30) days after the Bank gives notice
thereof to the Parent;
(j) The Borrower or any Subsidiary shall (i) fail to pay any Debt for
borrowed money in excess of Five Hundred Thousand Dollars ($500,000) of the
Borrower or such Subsidiary (as the case may be) when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise), or (ii) fail to perform or observe any term, covenant,
agreement or condition on its part to be performed or observed under any
agreement or instrument relating to any such indebtedness when required to
be performed or observed, if the effect of such failure to perform or
observe is to accelerate, or to permit the acceleration of, the maturity of
such indebtedness, which such failure to perform or observe shall not have
been waived by the holder of such or any such indebtedness shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity
thereof; or
(k) Any of the Obligors (i) shall generally not pay, or shall be
unable to pay, or shall admit in writing its inability to pay its debts as
such debts become due; or (ii) makes an assignment for
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the benefit of creditors, makes or sends notice of a bulk transfer or calls a
general meeting of its creditors or principal creditors or petitions or applies
to any tribunal for the appointment of a custodian, receiver, or trustee for it
or a substantial part of its assets; or (iii) files any petition or application
for relief under the Bankruptcy Code or any other bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any
such petition or application filed against it in which an order for relief is
entered or an adjudication or appointment is made, and which remains undismissed
for a period of sixty (60) days or more; or (v) takes any corporate action
indicating its consent to, approval of, or acquiescence in any such petition,
application, proceeding, or order for relief or the appointment of a custodian,
receiver, or trustee for all or any substantial part of its properties; or (vi)
suffers any such custodianship, receivership, or trusteeship to continue
undischarged for a period of sixty (60) days or more (each of the Events of
Default set forth in this Section 9.1(k) being individually referred to herein
as an 'Insolvency Event'); or
(l) One or more final judgments, decrees, or orders for the payment of
money in excess of Five Hundred Thousand Dollars ($500,000) in the
aggregate (or its equivalent in another currency) shall be rendered against
any of the Obligors, and (i) is not adequately covered by insurance or an
indemnity, in each case satisfactory to the Bank, or (ii) such judgment,
decree or order continues unsatisfied and in effect for a period of sixty
(60) consecutive days without being vacated, discharged, satisfied, or
stayed or bonded pending appeal, or (iii) enforcement proceedings shall
have been commenced with respect to such judgment, decree or order; or
(m) Any of the Guaranties shall at any time after execution and
delivery thereof and for any reason cease to be in full force and effect
(except to the extent any Guaranty is assumed through a merger permitted
under Section 7.3) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the Guarantor party thereto or
any Guarantor shall deny it has any further liability or obligation under,
or revokes, terminates or shall fail to pay when due its obligations under
its Guaranties; or
(n) Any Security Document shall at any time after its execution and
delivery and for any reason cease (i) to create a valid and perfected first
priority Lien in and to the Collateral purported to be subject to such
Security Document (except for a Permitted Lien); or (ii) to be in full
force and effect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Obligor or any Obligor
party thereto shall deny it has any further liability or obligation under
such Security Document; or
(o) An event of default shall have occurred under and as defined in
any Security Document;
(p) Any of the following events shall occur or exist with respect to
the Borrower and any Commonly Controlled Entity under ERISA (except for the
events described on Schedule 5.10): any Reportable Event shall occur;
complete or partial withdrawal from any Multiemployer Plan shall take
place; any Prohibited Transaction shall occur; a notice of intent to
terminate a Plan shall be filed, or a Plan shall be terminated; or
circumstances shall exist which constitute grounds entitling the PBGC to
institute proceedings to terminate a Plan, or the PBGC shall institute such
proceedings; and in each case above, such event or
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condition, together with all other events or conditions, if any, could subject
the Borrower to any tax, penalty, or other liability which in the aggregate may
exceed Five Hundred Thousand Dollars ($500,000);
(q) The occurrence of a Change of Control; or
(r) The occurrence of any default or event of default under and as
defined in the Subordinated Notes Indenture and/or any of the Subordinated
Notes; or
(s) A final judgment is entered by a court of competent jurisdiction
invalidating the Merger and the same is not dismissed or vacated after a
period of thirty (30) days; or
(t) The Borrower ceases to be an eligible borrower under the Farm
Credit Act of 1971, as amended.
SECTION 9.2 REMEDIES. (a) Upon the commencement and during the pendency of
an involuntary case under the Bankruptcy Code of under any other applicable
bankruptcy, insolvency or similar now or hereafter in effect, the Bank shall
have no obligation to make Loans or Letter of Credit Accommodations, (b) upon
the occurrence of any Insolvency Event, all the Commitments shall automatically
terminate and the unpaid principal amount of all of the Obligations shall
automatically become due and payable together with interest accrued thereon and
together with all other amounts payable under any of the Loan Documents, without
presentment, demand, protest or notice, all of which are hereby expressly waived
by the Borrower, and (c) upon the occurrence and continuance of any other Event
of Default, the Bank may, by written notice to the Borrower, (i) cease making
Loans and providing Letter of Credit Accommodations and (ii) declare all of the
Obligations due and payable, whereupon (A) the Notes shall mature and become due
and payable, together with interest accrued thereon and together with all other
amounts payable under any of the Loan Documents, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, and (B) the Bank shall have all rights and remedies
provided in the Security Documents and other Loan Documents, and all the rights
of a secured party under the Uniform Commercial Code or other applicable law.
All rights and remedies of the Bank are cumulative and not exclusive and are
enforceable, at the Bank's option, alternatively, successively, or concurrently
on any one or more occasions and in any order the Bank may determine.
SECTION 10. MISCELLANEOUS
SECTION 10.1 ACCOUNT STATED. The Bank's books and records showing the
accounts between the Bank and the Borrower shall be admissible in evidence in
any action or proceeding as prima facie proof of the items therein set forth,
and the Bank's statements delivered to the Borrower, to the extent to which no
written objection is made within thirty (30) days after the date of receipt
thereof by the Borrower, shall constitute an account stated between the Bank and
the Borrower and be binding on the Borrower. The Bank may apply all payments,
proceeds of Collateral and all other amounts received from or for the account of
the Borrower or any Guarantor to the Obligations in such order and manner as the
Bank shall in its sole discretion determine, except as otherwise provided in
this Agreement or any other Loan Document.
44
<PAGE>
SECTION 10.2 AMENDMENTS, ETC. No amendment, modification, termination, or
waiver of any provision of any Loan Document to which the Borrower is a party,
nor consent to any departure by the Borrower from any Loan Document to which it
is a party, shall in any event be effective unless the same shall be in writing
and signed by the Bank, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 10.3 NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be in writing and shall be deemed to have been
duly given or made: if by hand, immediately upon delivery; if by telecopier,
immediately upon sending, provided it is sent on a Business Day, but if not,
then immediately upon the beginning of the first Business Day after being sent;
if by Federal Express, Express Mail or any other overnight delivery service, one
(1) day after dispatch; and if mailed by United States first class certified
mail, return receipt requested, five (5) days after mailing. All notices,
requests and demands are to be given or made to the respective parties at the
following addresses (or to such other addresses as either party may designate by
notice in accordance with the provisions of this Section 10.3):
If to the Borrower: Curtice-Burns Foods, Inc.
90 Linden Place
Rochester, New York 14625
Attention: Mr. William D. Rice
Senior Vice President and
Chief Financial Officer
Telecopier: (716) 383-1568
If to the Bank: Springfield Bank for Cooperatives
67 Hunt Street
Agawam, Massachusetts 01001
Attention: Mr. Roger Murray
Telecopier: (413) 789-0140
SECTION 10.4 NO WAIVER. No failure or delay on the part of the Bank in
exercising any right, power, or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power, or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power, or remedy hereunder. The rights and remedies provided herein
are cumulative and are not exclusive of any other rights, powers, privileges, or
remedies, now or hereafter existing, at law or in equity or otherwise.
SECTION 10.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower may not assign or transfer
(except to Curtice-Burns pursuant to the Merger) any of its rights under any
Loan Document to which the Borrower is a party without the prior written consent
of the Bank.
45
<PAGE>
SECTION 10.6 ASSIGNMENTS AND PARTICIPATIONS. The Bank shall not assign any
of its rights or delegate any of its obligations under this Agreement and the
other Loan Documents without the prior consent of the Borrower, which shall not
be unreasonably withheld. The Bank may, without the prior consent of the
Borrower, sell participations in all or any part of the Loans and Letter of
Credit Accommodations or any other interest herein to a bank or other entity.
Any such participant shall have, to the extent of such participation, the same
rights and benefits as it would have had if it were the Bank hereunder, except
as otherwise provided by the terms of such participation; provided, that in the
event of any such sale by the Bank of participating interests under the Loan
Documents, the Bank's obligations under this Agreement to the Borrower shall
remain unchanged, the Bank shall remain solely responsible for the performance
thereof, the Bank shall remain the holder of the Notes for all purposes under
this Agreement and the other Loan Documents, and the Borrower shall continue to
deal solely and directly with the Bank in connection with the Bank's rights and
obligations under this Agreement and the other Loan Documents; and provided
further that no such participant shall be entitled to receive any greater amount
pursuant to Section 2.19, 2.21 or 2.23 of this Agreement than the Bank would
have been entitled to receive in respect of the amount of the participation
transferred to such participant had no such transfer occurred. The Bank may
furnish any information concerning the Borrower or any Guarantor in the
possession of the Bank from time to time to assignees and participants
(including prospective assignees and participants). For purposes of this Section
10.6, the consummation of the merger of the Bank with and into CoBank shall not
constitute an assignment of the Bank's interest in the Loans and Letter of
Credit Accommodations.
SECTION 10.7 COSTS, EXPENSES, AND TAXES. The Borrower agrees to pay on
demand all costs and expenses incurred by the Bank in connection with the
preparation, execution, delivery, filing, and administration of the Loan
Documents, and of any amendment, modification, or supplement to the Loan
Documents, including, without limitation, title insurance premiums, filing and
recording fees and the reasonable fees and out-of-pocket expenses of counsel for
the Bank, incurred in connection with advising the Bank as to its rights and
responsibilities hereunder. The Borrower also agrees to pay all such costs and
expenses, including court costs, incurred in connection with enforcement of the
Loan Documents, or any amendment, modification, or supplement thereto, whether
by negotiation, legal proceedings, or otherwise. In addition, the Borrower shall
pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing, and recording of any
of the Loan Documents and the other documents to be delivered under any such
Loan Documents, and agrees to hold the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or failing
to pay such taxes and fees. This provision shall survive termination of this
Agreement.
SECTION 10.8 INTEGRATION. This Agreement and the Loan Documents contain the
entire agreement between the parties relating to the subject matter hereof and
supersede all oral statements and prior writings with respect thereto,
including, but not limited to, the Commitment Letter, dated September 2, 1994,
delivered by the Bank to Parent and accepted by Parent on or about September 15,
1994.
SECTION 10.9 INDEMNITY. The Borrower hereby agrees to defend, indemnify,
and hold the Bank and its officers, directors, employees, affiliates, agents and
controlling persons harmless from and against any and all losses, claims,
damages, liabilities, judgments, penalties, costs, and reasonable expenses joint
or several (including reasonable attorney fees and court costs now or hereafter
arising from the enforcement of this clause) to which any such Person may become
subject arising directly or indirectly from (a) this
46
<PAGE>
Agreement or the use of the proceeds of the Loans as provided in Sections 2.18,
or any related transaction, including, but not limited to, any claim,
litigation, investigation or proceeding relating to the Merger and the
assistance provided by the Bank under this Agreement in financing the Merger,
regardless of whether any of such indemnified parties is a party thereto, and to
reimburse each of such indemnified parties upon demand for any reasonable legal
or other expenses incurred in connection with investigating or defending any of
the foregoing, provided that such indemnified parties will not be indemnified
for any such losses, claims, damages, liabilities or expenses resulting from the
gross negligence or willful misconduct of the Bank and (b) the activities of the
Borrower and each of the Guarantors, their respective predecessors in interest,
or third parties with whom it has a contractual relationship, or arising
directly or indirectly from the violation of any environmental protection,
health, or safety law, whether such claims are asserted by any governmental
agency or any other Person. This indemnity shall survive termination of this
Agreement.
SECTION 10.10 GOVERNING LAW. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York, without
reference to the conflicts of laws principles of said State.
SECTION 10.11 CONSENT TO JURISDICTION. The Borrower hereby irrevocably
submits and consents to the non-exclusive jurisdiction of the State and Federal
Courts in the State of New York, in connection with any action or proceeding
arising out of or relating to this Agreement, the Notes or any of the other Loan
Documents, or any matter arising therefrom or relating thereto.
SECTION 10.12 WAIVER OF JURY TRIAL. THE BANK AND THE BORROWER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN
CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS TO WHICH THE
BORROWER IS A PARTY. NO OFFICER OF THE BANK HAS AUTHORITY TO WAIVE, CONDITION,
OR MODIFY THIS PROVISION.
SECTION 10.13 [INTENTIONALLY OMITTED].
SECTION 10.14 SEVERABILITY OF PROVISIONS. Any provision of any Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 10.15 HEADINGS. Article and Section headings in the Loan Documents
are included in such Loan Documents for the convenience of reference only and
shall not constitute a part of the applicable Loan Documents for any other
purpose.
SECTION 10.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by each of the Borrower and the Bank in separate counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
47
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
PF ACQUISITION CORP.
By: /s/ Roy A. Myers
____________________________________
Title: President
___________________________________
CURTICE-BURNS FOODS, INC.
By: /s/ William D. Rice
____________________________________
Title: Senior Vice President
___________________________________
SPRINGFIELD BANK FOR COOPERATIVES
By: /s/ C. Scott Herring
____________________________________
Title: Vice President
___________________________________
48
<PAGE>
PF ACQUISITION CORP.
$160,000,000
12 1/4% Senior Subordinated Notes
Due 2005
PURCHASE AGREEMENT
Dated November 3, 1994
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Page
ARTICLE 1. DEFINITIONS....................................... 2
ARTICLE 2. PURCHASE AND SALE OF THE NOTES.................... 8
Section 2.1 Issue of the Notes.......................... 8
Section 2.2 Sale and Purchase of the Notes;
the Closing.............................. 9
Section 2.3 Failure to Deliver.......................... 10
Section 2.4 Further Action.............................. 10
ARTICLE 3. CLOSING CONDITIONS................................ 11
Section 3.1 Conditions to Obligations of
the Purchasers........................... 11
Section 3.1.1 Opinions of Counsel......................... 11
Section 3.1.2 Representations and Warranties
True; No Event of Default................ 12
Section 3.1.3 Compliance with Agreements.................. 12
Section 3.1.4 Accountant's Letter......................... 12
Section 3.1.5 Officers' Certificates...................... 12
Section 3.1.6 Completion of Other
Transactions............................. 13
Section 3.1.7 Consents; Permits........................... 14
Section 3.1.8 Purchase Permitted by
Applicable Laws; Legal
Investment............................... 14
Section 3.1.9 Solvency Letter............................. 15
Section 3.1.10 Full Subscription........................... 15
Section 3.2 Conditions to Obligations of
the Company.............................. 15
Section 3.2.1 Sale of Notes............................... 15
Section 3.2.2 Purchasers' Representations and
Warranties True.......................... 15
Section 3.2.3 Offering by the Placement Agent............. 15
Section 3.2.4 Sale of Notes Not Enjoined.................. 16
Section 3.2.5 Financing; Acquisition...................... 16
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.................... 17
Section 4.1 Representations and Warranties
by the Company and Pro-Fac............... 17
Section 4.1.1 Organization, Standing and
Qualification; Requisite
Corporate Power.......................... 17
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 4.1.2 Subsidiaries................................ 18
Section 4.1.3 Capitalization.............................. 19
Section 4.1.4 No Violation................................ 19
Section 4.1.5 Due Execution, etc.......................... 20
Section 4.1.6 Governmental Consents....................... 21
Section 4.1.7 No Material Adverse Change.................. 21
Section 4.1.8 Full Disclosure............................. 21
Section 4.1.9 Financial Statements........................ 22
Section 4.1.10 Outstanding Indebtedness.................... 23
Section 4.1.11 Use of Proceeds............................. 23
Section 4.1.12 Pending Litigation.......................... 23
Section 4.1.13 Title to and Condition of
Properties............................... 23
Section 4.1.14 Environmental Protection.................... 23
Section 4.1.15 Taxes....................................... 24
Section 4.1.16 Compliance with Laws........................ 24
Section 4.1.17 Labor Relations............................. 25
Section 4.1.18 Private Offering............................ 25
Section 4.1.19 Bank Credit Agreement and
Merger Agreement
Representations and
Warranties............................... 26
Section 4.1.20 Intellectual Property....................... 27
Section 4.1.21 Brokers..................................... 27
Section 4.1.22 Investment Company Act...................... 28
Section 4.1.23 Solvency.................................... 28
Section 4.1.24 Insurance................................... 28
Section 4.2 Purchaser Representations and
Warranties............................... 28
ARTICLE 5. COMPLIANCE WITH THE SECURITIES ACT................ 32
Section 5.1 Compliance with the Securities
Act...................................... 32
Section 5.2 Certificates Evidencing the
Notes.................................... 33
Section 5.3 Information................................. 34
ARTICLE 6. SUBSTITUTION OF PURCHASERS........................ 34
Section 6.1 Substitution of Purchasers.................. 34
ARTICLE 7. MISCELLANEOUS..................................... 35
Section 7.1 Access to Information....................... 35
Section 7.2 Notices..................................... 36
Section 7.3 Expenses.................................... 36
Section 7.4 Home Office Payment......................... 37
Section 7.5 Termination................................. 38
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 7.6 Survival of Representations and
Warranties............................... 38
Section 7.7 Assignments................................. 38
Section 7.8 No Waiver; Modifications in
Writing.................................. 39
Section 7.9 Counterparts................................ 39
Section 7.10 Headings.................................... 39
Section 7.11 Consent to Jurisdiction and
Service of Process....................... 40
Section 7.12 Governing Law............................... 40
Section 7.13 Entire Agreement............................ 40
Section 7.14 Severability................................ 40
Section 7.15 Delivery.................................... 40
Section 7.16 Attorneys' Fees............................. 40
Section 7.17 Consent to Joint Representation............. 41
Section 7.18 Reliance Authorized......................... 41
Section 7.19 Indemnity................................... 41
EXHIBITS
Exhibit A Form of Indenture
Exhibit B Form of Managed Accounts Letter
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Opinion of Howard, Darby & Levin
Exhibit E Form of Opinion of Harris Beach & Wilcox
Exhibit F Form of Opinion of Cahill Gordon & Reindel
Exhibit G Form of Solvency Certificate
Exhibit H Form of Solvency Opinion
Exhibit I Form of Placement Agent Letter
SCHEDULES
Schedule 4.1.2. Subsidiaries of Curtice-Burns and Pro-Fac
</TABLE>
-iii-
c/o DILLON, READ & CO. INC.
535 Madison Avenue
New York, New York 10022
__________________
PURCHASE AGREEMENT
__________________
November 3, 1994
To Each of the Purchasers
Named on the Signature
Pages Hereof
Ladies and Gentlemen:
Pursuant to the terms of an Agreement and Plan of
Merger dated as of September 27, 1994 (the 'Merger Agreement')
among Pro-Fac Cooperative, Inc., a New York cooperative
corporation ('Pro-Fac'), PF Acquisition Corp., a New York
corporation and a wholly owned subsidiary of Pro-Fac (the
'Company'), and Curtice-Burns Foods, Inc., a New York
corporation ('Curtice-Burns'), the Company has made an offer to
purchase all of the issued and outstanding shares of Class A
Common Stock and Class B Common Stock, each $.99 par value per
share (collectively, the 'Common Stock'), of Curtice-Burns and,
upon acceptance for payment of the Common Stock pursuant to
such offer, proposes to merge with and into Curtice-Burns (the
'Merger') such that all of the issued and outstanding shares of
Common Stock not tendered and accepted for payment pursuant to
such offer will be converted into the right to receive the cash
consideration specified in the Merger Agreement (other than
shares of Common Stock owned by Pro-Fac or its subsidiaries or
Curtice-Burns or its subsidiaries (which shall be canceled) or
shares of Common Stock as to which stockholders of Curtice-
Burns have exercised appraisal rights provided in connection
with the Merger). The Merger will be financed in part through
the issuance by the Company of its 12 1/4% Senior Subordinated
Notes Due 2005 (the 'Notes'), in an aggregate principal amount
of $160,000,000, pursuant to a trust indenture dated as of
November 3, 1994 (the 'Indenture'), among the Company, Pro-Fac,
as Parent Guarantor, and IBJ Schroder Bank & Trust Company, as
trustee (the 'Trustee'). The Notes will be guaranteed by Pro-
Fac on an unsecured senior subordinated basis. In connection
<PAGE>
2
with and as a result of the Merger, Curtice-Burns, as the
surviving corporation, will assume all of the obligations of
the Company under the Notes, the Indenture and this Agreement.
In addition, certain Subsidiaries of Curtice-Burns specified in
Schedule 4.1.2 hereto (the 'Subsidiary Guarantors' and,
together with Pro-Fac, as Parent Guarantor, the 'Guarantors')
will guarantee the Notes on an unsecured senior subordinated
basis by execution of a supplemental indenture.
The Notes will be offered and sold to the Purchasers
identified in the signature pages hereof (each, a 'Purchaser')
pursuant to an exemption from the registration requirements
under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the 'Act'). The Company
has prepared a preliminary offering memorandum dated October 7,
1994 (the 'Preliminary Offering Memorandum') and has prepared a
final offering memorandum dated October 24, 1994 (the 'Offering
Memorandum'), relating to the Company and the Notes.
The Company, the Guarantors and each person a
signatory hereto hereby agrees as set forth below. Capitalized
terms used but not defined herein shall have the meaning given
such terms in Article 1 hereof.
ARTICLE 1. DEFINITIONS
As used in this Agreement, the following terms shall
have the meanings indicated below:
'Account' shall have the meaning specified in Section
2.2 of this Agreement.
'Accredited Investor' means an 'accredited investor',
as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
'Affiliate' means, with respect to any specified
Person, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person.
'Agreement' means this Purchase Agreement, as the
same may be supplemented, amended or modified in accordance
with the terms hereof.
'Bank' means Springfield Bank for Cooperatives, a
corporation established under the laws of the United States of
<PAGE>
3
America and continuing as a federally chartered instrumentality
of the United States under the Farm Credit Act of 1971, as
amended.
'Bank Credit Agreement' means the Term Loan, Term
Loan Facility and Seasonal Loan Agreement dated as of
November 3, 1994 by and among the Bank, Curtice-Burns and the
Company.
'Bank Financing Documents' means the Bank Credit
Agreement and each of the agreements, documents and instruments
required to be entered into by Curtice-Burns, the Company or
any Guarantor on or prior to the Closing Date in accordance
with the terms thereof.
'Book Entry Notes' shall have the meaning set forth
in Section 2.2.
'Business Day' means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York, State of New York are
authorized or obligated by law or executive orders to close.
'Capital Stock' means, with respect to any Person,
any and all shares, interests, participations, rights in or
other equivalents (however designated) of such Person's capital
stock, and any rights (other than debt securities convertible
into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
'Charter Documents' means, with respect to any
Person, the Certificate or Articles of Incorporation and
By-laws, as amended or restated to the date hereof or the
Closing Date, as applicable, of such Person.
'Closing' shall have the meaning specified in Section
2.2 of this Agreement.
'Closing Date' shall have the meaning specified in
Section 2.2 of this Agreement.
'Code' means the Internal Revenue Code of 1986, as
amended.
'Commission' means the United States Securities and
Exchange Commission, as from time to time constituted, and any
<PAGE>
4
body or bodies hereafter performing any of the duties performed
by the Commission.
'Contract Default' shall have the meaning specified
in Section 4.1.4 of this Agreement.
'control' means, with respect to any specified
Person, the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
'controlling' and 'controlled' have meanings correlative to the
foregoing.
'Default' and 'Event of Default' shall have the
meanings specified in Sections 1.1 and 6.1, respectively, of
the Indenture.
'Definitive Note' shall have the meaning specified in
Section 2.2 of this Agreement.
'Documents' means each of the Merger Documents, the
Note Documents and the Bank Financing Documents.
'DTC' shall mean The Depository Trust Company.
'Environmental Laws' means the common law and all
federal, state, local and foreign laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder, now or hereafter in effect,
relating to pollution or protection of public or employee
health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges,
releases or threatened releases of Hazardous Materials into the
environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface
strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling
of Hazardous Materials, and (iii) underground storage tanks,
and related piping, and emissions, discharges, releases or
threatened releases therefrom.
'ERISA' means the Employee Retirement Income Security
Act of 1974, as amended.
'Exchange Act' means the Securities Exchange Act of
1934, as amended.
<PAGE>
5
'Exchange Notes' means the notes the terms of which
are substantially identical to the Notes offered and sold
hereby, issued in exchange for the Notes pursuant to the
Exchange Offer.
'Exchange Offer' means the registration of Exchange
Notes by Curtice-Burns and the Guarantors under the Securities
Act pursuant to a registration statement under which Curtice-
Burns and each Guarantor offer each holder of Notes the
opportunity to exchange all outstanding Notes held by such
holder for Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of Notes held by such
holder, all in accordance with the terms and conditions of the
Registration Rights Agreement.
'Exchange Offer Registration Statement' means the
registration statement filed in connection with an Exchange
Offer by the Company.
'Financing' shall have the meaning specified in
Section 3.1.6(a) of this Agreement.
'GAAP' means generally accepted accounting
principles, set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession of the United
States of America, which are applicable as of the date of
determination.
'Global Note' shall have the meaning set forth in
Section 2.2.
'Guarantee' means each guarantee in respect of the
Notes pursuant to Article Eleven of the Indenture.
'Hazardous Material' means any pollutant,
contaminant, chemical, or industrial, toxic or hazardous
substance, constituent or waste, including, without limitation,
petroleum including crude oil or any fraction thereof, or any
petroleum product.
'Lien' means any mortgage, charge, pledge, lien
(statutory or other), privilege, security interest,
hypothecation, cessation and transfer, lease of real property,
<PAGE>
6
assignment for security, claim, deposit arrangement, or
preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable
or immovable, now owned or hereafter acquired. A Person shall
be deemed to own subject to a Lien any property which such
Person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.
'Material Adverse Effect' means a material adverse
effect on the business, condition (financial or otherwise),
results of operations or properties of the Pro-Fac Companies,
taken as a whole.
'Merger Documents' means the Merger Agreement, the
Stockholder Agreement and each of the agreements, documents and
instruments required to be entered into by any Pro-Fac Company
on or prior to the Closing Date in accordance with the terms
thereof.
'Note Documents' means this Agreement, the Notes, the
Indenture, the Guarantees of the Notes by Pro-Fac and the
Subsidiary Guarantors, and the Registration Rights Agreement,
collectively, together with any exhibits, schedules or other
attachments hereto or thereto, as they may be amended or
supplemented from time to time in accordance with the
respective terms thereof.
'Permitted Liens' shall have the meaning specified in
Section 1.1 of the Indenture.
'Person' means an individual, partnership,
corporation, trust or unincorporated organization or a
government or agency or political subdivision thereof.
'Placement Agent' shall have the meaning specified in
Section 2.2 of this Agreement.
'Pro-Fac Companies' means each of Pro-Fac, the
Company, Curtice-Burns and each of the Subsidiaries of Curtice-
Burns.
'Purchase Price' shall have the meaning specified in
Section 2.2 of this Agreement.
'Purchasers' means (i) each Person who accepts and
agrees to the terms hereof as indicated by such Person's
<PAGE>
7
signature on the execution pages of this Agreement or a
counterpart thereof, (ii) each Person, if any, on whose behalf
another Person executes this Agreement and whose funds are used
for the purchase of any Notes hereunder and, with respect to
whom, the Person so executing this Agreement executes and
delivers to the Company simultaneously with or prior to the
Closing Date a representation letter in the form of Exhibit B
hereto, and (iii) subject to Article 6 of this Agreement, each
Substitute Purchaser.
'Qualified Institutional Buyer' shall have the
meaning specified in Rule 144A under the Securities Act.
'Registration Rights Agreement' means the
Registration Rights Agreement dated as of the Closing Date
among the Company, Pro-Fac and the Purchasers substantially in
the form of Exhibit C hereto, as amended and supplemented from
time to time in accordance with the terms thereof.
'Securities Act' means the Securities Act of 1933, as
amended.
'Solvency' shall have a meaning correlative to the
meaning of the term 'Solvent.'
'Solvent' means, with respect to any Person, as of
any date, (i) the fair value of the aggregate assets of such
Person will exceed the total liabilities (including, without
limitation, subordinated, unmatured, unliquidated, disputed and
contingent liabilities) of such Person, (ii) the present fair
salable value of the aggregate assets of such Person will be
greater than probable liabilities of such Person on its debts
as they become absolute and matured, (iii) such Person will be
able to pay its debts and other liabilities (including
contingent liabilities and other commitments) as they mature,
(iv) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, (v) such
Person will not have an unreasonably small capital for the
businesses in which it is engaged, as now conducted by such
Person and as such businesses are proposed to be conducted and
(vi) with respect to the transactions contemplated by this
Agreement, the Merger Agreement and the other Documents, such
Person is not entering into such transactions with the
intention to hinder, delay or defraud creditors. In computing
the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount
that, in
<PAGE>
8
light of all the facts and circumstances existing at
such time, represents the maximum amount that can reasonably be
expected to become an actual or matured liability.
'Stockholder Agreement' means the Stockholder
Agreement dated as of September 27, 1994 by and among Pro-Fac,
the Company and Agway Holdings, Inc., a Delaware corporation.
'Subsidiary' means with respect to any Person, any
other Person of which a majority of the equity ownership or the
voting securities is at the time owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such
Person, or by such Person and one or more other Subsidiaries of
such Person.
'Substitute Purchaser' shall have the meaning
specified in Section 6.1 of this Agreement.
'Tax' or 'Taxes' means all taxes, including all
foreign and United States federal, state, county or local
income, excise, withholding, sales, franchise, property, gains,
transfer, employment or other taxes and all interest and
penalties related thereto.
'United States Person' shall have the meaning
specified under Rule 902(o) under the Securities Act.
ARTICLE 2. PURCHASE AND SALE OF THE NOTES
Section 2.1. Issue of the Notes. The Company has
authorized the issuance and sale to you and each other
Purchaser of $160,000,000 aggregate principal amount of its
12 1/4% Senior Subordinated Notes Due 2005, to be issued pursuant
to the Indenture. Each Note will be issued in the principal
amount of $1,000 or any integral multiple of $1,000 and shall
otherwise be in the form of the Note set forth as Exhibit A to
the Indenture. The Notes shall be guaranteed by the Parent
Guarantor and, upon the consummation of the Merger, by the
Subsidiary Guarantors, each on an unsecured senior subordinated
basis.
Each Purchaser will have the registration rights with
respect to the Notes that are set forth in the Registration
Rights Agreement, for so long as the Notes are Transfer
Restricted Securities (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the
Company will agree to file with the Commission under the
<PAGE>
9
circumstances set forth therein (i) a registration statement
under the Securities Act (the 'Exchange Offer Registration
Statement') relating to the New Notes (as defined in the
Registration Rights Agreement) to be offered in exchange for
the Notes (the 'Exchange Offer') and (ii) under certain
circumstances set forth therein, a shelf registration statement
pursuant to Rule 415 under the Securities Act relating to
resale by holders of the Notes.
Section 2.2. Sale and Purchase of the Notes; the
Closing. In reliance upon the representations and warranties
made herein and subject to the satisfaction or waiver of the
terms and conditions set forth herein, the Company hereby
agrees to issue and sell to each Purchaser, and each Purchaser
hereby agrees, severally and not jointly, to purchase from the
Company at the Closing on the Closing Date, the principal
amount of Notes set forth below such Purchaser's name on the
signature pages hereof, for a purchase price equal to 100% of
the principal amount of such Notes. The Purchasers may include
Dillon, Read & Co. Inc. (the 'Placement Agent') or persons who
may be deemed affiliated or associated with the Placement
Agent.
The sale and purchase of the Notes shall take place
at a closing (the 'Closing') at the offices of Howard, Darby &
Levin, 1330 Avenue of the Americas, New York, New York 10019,
no earlier than 10:00 a.m. on November 3, 1994 (the 'Closing
Date').
Payment of the purchase price (the 'Purchase Price')
for the Notes hereunder shall be made by each Purchaser by
10:00 a.m. (New York City time) on November 3, 1994 by federal
funds check or by wire transfer of immediately available funds
to one or more accounts (collectively, the 'Account')
designated by the Placement Agent in a notice to the Purchasers
prior to the Closing. If the Closing occurs, interest will
accrue on the Notes beginning on the Closing Date. If the
Closing does not occur, the Company shall pay to each Purchaser
an amount of interest on the Purchase Price deposited into the
Account by such Purchaser equal to the interest such Purchaser
would have received on the Notes from the Closing Date to but
not including the date such Purchase Price is returned to such
Purchaser.
If a Purchaser is an Accredited Investor who is not a
Qualified Institutional Buyer, then one or more Notes in
definitive form, registered in such names and permitted
<PAGE>
10
denominations as such Purchaser may request in writing not less
than two business days prior to the Closing Date, in an amount
corresponding to the amount of Notes sold to such Purchaser (a
'Definitive Note'), shall be delivered to such Purchaser by the
Company upon the deposit by such Purchaser of funds into the
Account in accordance with the preceding paragraph. For each
Purchaser who is a Qualified Institutional Buyer, one or more
Notes in global form (a 'Global Note') registered in the name
of Cede & Co., as nominee of The Depository Trust Company
('DTC'), which will act as depository, representing all Notes
purchased by such Purchasers, who are Qualified Institutional
Buyers, shall be delivered to DTC by the Company on the
business day immediately preceding the Closing Date (each such
beneficial interest in the Global Note being herein referred to
as a 'Book-Entry Note'). Each such Book-Entry Note shall be
delivered to such Purchaser upon the deposit by such Purchaser
of funds into the Account in accordance with the preceding
paragraph. At the Closing, the Placement Agent shall release
the Purchase Price from the Account to the Company. The forms
of the Definitive Notes and the Global Notes in definitive form
shall be made available to the Placement Agent for inspection
not later than 9:30 a.m. on the business day immediately
preceding the Closing Date.
Section 2.3. Failure to Deliver. If at the Closing
any of the conditions to the Closing specified in this
Agreement (other than the conditions specified in Section 3.2
hereof) shall not have been satisfied to the reasonable
satisfaction of any Purchaser or waived by such Purchaser, such
Purchaser shall, at its election and notwithstanding anything
to the contrary in this Agreement, be relieved of all further
obligations under this Agreement without thereby waiving any
other rights such Purchaser may have by reason of such nonful-
fillment or failure; provided, however, that if the Closing
shall not have occurred on or prior to 3:00 p.m. on the Closing
Date, then each Purchaser to which Notes have been delivered
pursuant to Section 2.2 shall return such Notes (through DTC,
if such Notes are Book-Entry Notes) to the Company and the
Purchase Price applicable to such Notes shall be released from
the Account to such Purchaser. Nothing in this Section 2.3
shall operate to relieve either of the Company or Pro-Fac from
any of its obligations hereunder.
Section 2.4. Further Action. During the period from
the date hereof to the Closing Date, (a) the Company and Pro-
Fac shall use their respective reasonable best efforts and take
all action reasonably necessary or appropriate to cause their
<PAGE>
11
respective representations and warranties contained in
Section 4.1 to be true and correct as of the Closing Date after
giving effect to the transactions contemplated by this
Agreement, the Merger Agreement and the other Documents, as if
made at and as of such time and (b) each Purchaser shall use
its reasonable best efforts and take all action reasonably
necessary or appropriate to cause the representations and
warranties of such Purchaser contained in Section 4.2 hereof to
be true and correct as of the Closing Date as if made at and as
of such time.
ARTICLE 3. CLOSING CONDITIONS
Section 3.1. Conditions to Obligations of the
Purchasers. The obligation of each Purchaser to purchase and
pay for the Notes to be purchased by it hereunder shall be
subject to the satisfaction or waiver by such Purchaser of each
of the following conditions on or before the Closing Date:
Section 3.1.1. Opinions of Counsel. The Placement
Agent and such Purchaser shall have received the following
opinions:
(a) favorable opinions, dated the Closing Date and
addressed to the Placement Agent and each Purchaser, from
Howard, Darby & Levin, special counsel to the Company and
Pro-Fac and, after the effectiveness of the Merger,
Curtice-Burns, substantially in the form of Exhibit D
hereto, and covering such other matters as may reasonably
be requested by the Purchasers;
(b) favorable opinions, dated the Closing Date and
addressed to the Placement Agent and each Purchaser, from
Harris Beach & Wilcox, counsel to the Company and Pro-Fac
and, after the effectiveness of the Merger, Curtice-Burns,
substantially in the form of Exhibit E hereto, and
covering such other matters as may reasonably be requested
by the Purchasers;
(c) favorable opinions, dated the Closing Date and
addressed to the Placement Agent and each Purchaser, from
Cahill Gordon & Reindel, special counsel to the
Purchasers, substantially in the form of Exhibit F hereto;
and
(d) such other opinions of counsel covering matters
incidental to the transactions contemplated by this
<PAGE>
12
Agreement and the Merger Agreement as you may reasonably
request.
Section 3.1.2. Representations and Warranties True;
No Event of Default. Each of the representations and
warranties made by each of the Company and Pro-Fac contained in
Section 4.1 hereof shall have been true and correct in all
material respects when made and shall be true and correct in
all material respects on and as of the Closing Date, as if made
on and as of such time, in each case, after giving effect to
the transactions contemplated by this Agreement, the Merger
Agreement and each of the other Documents, except to the extent
that any such representation or warranty was expressly made as
of any other date, in which case such representation or
warranty shall have been true and correct at and as of such
date. There shall exist on and as of the Closing Date, after
giving effect to the transactions contemplated by this
Agreement, the Merger Agreement and the other Documents, no
Default or Event of Default.
Section 3.1.3. Compliance with Agreements. Each of
the Company, Pro-Fac and Curtice-Burns shall have performed and
complied in all material respects with all agreements,
covenants and conditions contained herein, in the other
Documents and any other document contemplated hereby and
thereby that are required to be performed or complied with by
such Person on or before the Closing Date.
Section 3.1.4. Accountant's Letter. The Placement
Agent shall have received a 'cold comfort' letter addressed to
itself and the Company, dated the Closing Date, from Price
Waterhouse LLP, independent public accountants to the Company,
Pro-Fac and Curtice-Burns, in form and substance reasonably
satisfactory to the Placement Agent.
Section 3.1.5. Officers' Certificates. Each
Purchaser and the Placement Agent shall have received
(i) certificates, dated the Closing Date and signed by the
Chief Executive Officer or the President or, in the case of
Pro-Fac, the General Manager, and attested by the Secretary or
any Assistant Secretary of each of the Company and Pro-Fac,
certifying (a) that the conditions set forth in Sections 3.1.2,
3.1.3, 3.1.6 and 3.1.7 of this Agreement have been satisfied on
and as of such date and (b) as to such other matters as the
Placement Agent may reasonably request and (ii) a certificate,
dated the Closing Date and signed by the Vice President-Finance
of the Company, in the form attached hereto as Exhibit G,
<PAGE>
13
certifying as to the Solvency, prior to and immediately after
giving effect to the transactions contemplated by this
Agreement, the Merger Agreement and the other Documents, of
Curtice-Burns and each Guarantor, taken individually.
Section 3.1.6. Completion of Other Transactions.
(a) Each of the Bank and the Company shall have entered into
the Bank Credit Agreement providing for senior bank financing
(the 'Financing') substantially as described in the Offering
Memorandum in all material respects. Each of the Bank
Financing Documents shall have been duly authorized, executed
and delivered by the parties thereto (other than Curtice-Burns
and the Subsidiary Guarantors), shall not have been terminated
and shall be in full force and effect. No event shall have
occurred and be continuing, and no event shall have failed to
occur (other than the Merger and the execution of the Bank
Financing Documents by Curtice-Burns and the Subsidiary
Guarantors), the occurrence or continuance or failure to occur
of which would relieve the Bank of its obligation to advance
funds, or preclude it from advancing funds, to the Company
pursuant to the terms of the Bank Credit Agreement, and,
substantially concurrently with the Closing hereunder, the Bank
shall have advanced funds in amounts equal to approximately
$80,000,000 under the term loan portion of the Bank Credit
Agreement, $97,500,000 under the term loan facility portion of
the Bank Credit Agreement and such additional amounts as are
necessary under the seasonal facility portion of the Bank
Credit Agreement for the purpose of funding the Merger and
related transactions, including the refinancing of existing
indebtedness.
(b) Each of the Merger Documents shall have been
duly authorized, executed and (other than the Certificate of
Merger) delivered by the parties thereto, shall not have been
terminated, and shall be in full force and effect. None of the
parties to the Merger Documents shall be in material breach of
any of their respective material obligations thereunder. The
conditions precedent to the transactions contemplated by the
Merger Agreement (other than the receipt of funds) shall have
been duly satisfied or waived; provided, however, that no party
to the Merger Agreement shall have waived any such conditions
which waiver, singly or in the aggregate, is likely to have a
Material Adverse Effect. Substantially simultaneously with the
sale of the Notes hereunder to the Purchasers, the closing
contemplated by the Merger Agreement shall have been
consummated in accordance with the terms of the Merger
Agreement.
<PAGE>
14
(c) Each of the Note Documents shall have been duly
authorized, executed and delivered by the respective parties
thereto (other than any Note Documents to be executed by
Curtice-Burns or any Subsidiary Guarantor), shall not have been
terminated and shall be in full force and effect. The
Placement Agent shall have received on behalf of such Purchaser
a conformed copy of the Indenture and an original copy of this
Agreement and the Registration Rights Agreement. Pro-Fac shall
have duly authorized the issuance and sale of its Guarantee of
the Notes pursuant to this Agreement and the Indenture.
(d) The Notes to be issued and sold to the
Purchasers hereunder shall have been executed by the Company
and delivered to the Trustee pursuant to the Indenture and the
Trustee shall have authenticated such Notes in accordance with
the Indenture.
Section 3.1.7. Consents; Permits. Substantially
simultaneously with the Closing hereunder, all consents,
permits, agreements, approvals and other authorizations that
may be required from, and all such filings and declarations
that may be required with, any Person pursuant to any law,
statute, regulation, or rule (federal, provincial, state, local
and foreign) or pursuant to any order, decree or other
agreements to which any of the Company, Pro-Fac or Curtice-
Burns is a party or by which any of them are bound, in
connection with this Agreement, the Merger Agreement, each of
the other Documents and the transactions contemplated hereby
and thereby shall have been obtained or made, as the case may
be, except such consents, permits, agreements, approvals and
other authorizations which, if not obtained or made, are not
likely to have a Material Adverse Effect. All applicable
waiting periods (including under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976) shall have expired without
any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse
conditions on the Merger or any such transactions described in
the preceding sentence.
Section 3.1.8. Purchase Permitted by Applicable
Laws; Legal Investment. The purchase of and payment for the
Notes to be purchased by such Purchaser hereunder and the
consummation of the transactions contemplated by the Merger
Agreement and the Bank Credit Agreement (a) shall not be
prohibited by any applicable law, court order or injunction
(temporary or permanent), or governmental regulation, release,
interpretation or opinion (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System)
<PAGE>
15
whether domestic or foreign and (b) shall not, in such Purchaser's
reasonable judgment, subject such Purchaser to any penalty, tax,
liability or other material adverse effect (other than income
taxes payable on the interest paid on the Notes).
Section 3.1.9. Solvency Letter. The Placement Agent
shall have received a letter, dated the Closing Date, from
American Appraisal Associates with respect to the solvency of
the Pro-Fac Companies, substantially in the form of Exhibit H
hereto.
Section 3.1.10. Full Subscription. Each Purchaser
shall have accepted delivery of and made payment for Notes to
be purchased by it hereunder at the Closing Date pursuant to
this Agreement such that together with funds from the other
financing sources described in the Offering Memorandum, the
Company and Pro-Fac will have sufficient funds to consummate
the Merger and the other transactions contemplated by the
Merger Agreement.
Section 3.2. Conditions to Obligations of the
Company. The obligation of the Company to issue and sell the
Notes pursuant to this Agreement shall be subject to the
satisfaction or waiver of each of the following conditions on
or before the Closing Date:
Section 3.2.1. Sale of Notes. Each Purchaser shall
have delivered payment to the Company in respect of its
purchase of the Notes pursuant to this Agreement.
Section 3.2.2. Purchasers' Representations and
Warranties True. The representations and warranties of each of
the Purchasers contained in Section 4.2 of this Agreement shall
have been true and correct in all material respects when made
and shall be true and correct in all material respects on and
as of the Closing Date, after giving effect to the transactions
contemplated by the Note Documents, as if made on and as of
such time.
Section 3.2.3. Offering by the Placement Agent. The
Company and Pro-Fac shall have received a letter, dated the
Closing Date and addressed to them from the Placement Agent in
form and substance satisfactory to them, substantially in the
form of Exhibit I hereto. The Company and Pro-Fac shall have
also received such assurances as they may reasonably request
from the Placement Agent that the Notes have been offered and
<PAGE>
16
sold in accordance with all applicable state securities laws or
'blue sky' laws.
Section 3.2.4. Sale of Notes Not Enjoined. The sale
of the Notes by the Company hereunder and the consummation of
the transactions contemplated by the Documents shall not have
been enjoined (temporarily or permanently) at the time of the
Closing or be prohibited by any applicable law or governmental
regulation, release, interpretation or opinion (including
Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System) whether domestic or foreign.
Section 3.2.5. Financing; Acquisition. (a) Each of
the Bank and the Company shall have entered into the Bank
Credit Agreement providing for the Financing, which Bank Credit
Agreement shall be substantially as described in the Offering
Memorandum in all material respects. The Bank Financing
Documents shall have been duly authorized, executed and
delivered by the parties thereto (other than Curtice-Burns and
the Subsidiary Guarantors), shall not have been terminated and
shall be in full force and effect. No event shall have
occurred and be continuing, or shall have failed to occur
(other than the Merger and the execution of the Bank Financing
Documents by Curtice-Burns and the Subsidiary Guarantors), the
occurrence or continuance or failure to occur of, which would
relieve the Bank of its obligation to advance funds, or
preclude it from advancing funds, to the Company pursuant to
the terms of the Bank Credit Agreement, and, substantially
concurrently with the Closing hereunder, the Bank shall have
advanced funds in amounts equal to approximately $80,000,000
under a term loan portion of the Bank Credit Agreement,
$97,500,000 under the term loan facility portion of the Bank
Credit Agreement and such additional amounts as are necessary
under the seasonal facility portion of the Bank Credit
Agreement for the purpose of funding the Merger and related
transactions.
(b) Substantially simultaneously with the sale of
the Notes hereunder to the Purchasers, the closing contemplated
by each of the Merger Agreement and the Bank Credit Agreement
shall have been consummated in accordance with its terms in all
material respects. Substantially simultaneously with the
Closing hereunder, all consents, permits, agreements, approvals
and other authorizations that may be required from, and all
such filings and declarations that may be required with, any
Person pursuant to any law, statute, regulation, or rule
(federal, provincial, state, local and foreign) or pursuant to
any order, decree or other agreements to which any of the
Company, Pro-Fac
<PAGE>
17
or Curtice-Burns is a party or by which any of
them are bound, in connection with this Agreement, the Merger
Agreement, each of the other Documents and the transactions
contemplated hereby and thereby shall have been obtained or
made, as the case may be, except such consents, permits,
agreements, approvals and other authorizations which, if not
obtained or made, are not likely to have a Material Adverse
Effect. All applicable waiting periods (including under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976) shall
have expired without any action being taken or threatened by
any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the Merger or any such
transactions described in the preceding sentence.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties by the
Company and Pro-Fac. Each of the Company and Pro-Fac jointly
and severally hereby represents and warrants to each of the
Purchasers as follows:
Section 4.1.1. Organization, Standing and
Qualification; Requisite Corporate Power. The Company is a
newly formed entity with no operating history other than as
described in the Offering Memorandum and has not entered into
any transactions other than in connection with the Merger and
the Financing. Each of the Company, Curtice-Burns and each
Guarantor is (i) a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation; (ii) has all requisite corporate power and
authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted; and (iii) is duly qualified or licensed and, if
applicable, in good standing as a foreign corporation, and is
authorized to do business, in each jurisdiction in which the
ownership or leasing of any property or the character of its
operations makes such qualification, license or authorization
necessary, except for such jurisdictions where the failure to
be so qualified, licensed or authorized is not likely to have a
Material Adverse Effect. Each of the Company, Curtice-Burns
and each Guarantor has all requisite corporate power and
authority (i) to execute, deliver and perform its obligations
under each of the Documents to which it is a party, (ii) with
respect to the Company and Curtice-Burns, to issue or assume
the Notes, as the case may be, in the manner and for the
purpose contemplated by this Agreement, and (iii) with respect
to the Guarantors, to execute
<PAGE>
18
and deliver its Guarantee of the
Notes and to incur and perform its obligations thereunder.
Section 4.1.2. Subsidiaries. (a) The Company has
no Subsidiaries and all of the outstanding shares of Capital
Stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable (except to the
extent provided in Section 630 of the New York Business
Corporation Law).
(b) Curtice-Burns has only the Subsidiaries listed
on Schedule 4.1.2 and all of the outstanding shares of Capital
Stock of Curtice-Burns and each of its Subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable (except to the extent provided in Section 630 of
the New York Business Corporation Law).
(c) Prior to the Closing, (i) Pro-Fac has no
Subsidiaries other than the Company and Pro-Fac Holding Company
of Iowa, Inc. and (ii) all of the outstanding shares of Capital
Stock of Pro-Fac have been duly authorized and validly issued
and are fully paid and nonassessable (except to the extent
provided in Section 47 of the New York Cooperative Corporations
Law).
(d) Set forth in Schedule 4.1.2 is a true and
complete schedule setting forth (i) the name and jurisdiction
of incorporation of each Subsidiary of Pro-Fac and (ii) the
number of shares of Capital Stock and other equity securities
and the percentage of the issued and outstanding Capital Stock
and other equity securities of Curtice-Burns and the Subsidiary
Guarantors held by Pro-Fac, both directly and indirectly, each
as will exist immediately after the Closing, after giving
effect to the transactions contemplated by this Agreement, the
Merger Agreement and the other Documents. All of the
outstanding shares of Capital Stock of each of Curtice-Burns
and its Subsidiaries will have been duly authorized and validly
issued, will be fully paid and nonassessable (except to the
extent provided in Section 630 of the New York Business
Corporation Law) and such shares of Capital Stock of Pro-Fac's
Subsidiaries will be owned beneficially by Pro-Fac and, with
the exception of the Capital Stock of Curtice-Burns, of record
by Curtice-Burns, and such shares of Capital Stock of Curtice-
Burns will be owned of record by Pro-Fac, each free and clear
of any Lien, except Permitted Liens. None of the Subsidiaries
of Curtice-Burns has any material indebtedness not reflected in
the financial statements included in the Offering Memorandum.
After giving effect
<PAGE>
19
to the transactions contemplated by this
Agreement, the Merger Agreement and the other Documents, as of
and for the twelve months ended June 25, 1994, excluding the
Subsidiary Guarantors, the Subsidiaries of Curtice-Burns
represented less than 5% of the consolidated assets and less
than 5% of the consolidated income of Curtice-Burns.
Section 4.1.3. Capitalization. After giving effect
to the transactions contemplated by the Merger Agreement in
respect to stock of Curtice-Burns, there are: (i) no
outstanding subscriptions, warrants, options, calls or
commitments of any character relating to or entitling any
Person to purchase or otherwise acquire any stock of Curtice-
Burns or any of its Subsidiaries; (ii) no obligations or
securities convertible into or exchangeable for shares of any
Capital Stock of Curtice-Burns or any of its Subsidiaries, or
any commitments of any character relating to or entitling any
Person to purchase or otherwise acquire any such obligations or
securities; and (iii) no preemptive or similar rights to
subscribe for or to purchase any Capital Stock of Curtice-Burns
or any of its Subsidiaries. After giving effect to the
transactions contemplated by the Merger Agreement in respect of
existing agreements relating to stock of Curtice-Burns, except
as set forth herein and in the Registration Rights Agreement
and the Indenture, none of Curtice-Burns or any of its
Subsidiaries has entered into any agreement to register its
equity or debt securities under the Securities Act and, except
as set forth in the Offering Memorandum, there are no
understandings or agreements with respect to the voting of any
of the Capital Stock of Curtice-Burns or its Subsidiaries.
Section 4.1.4. No Violation. (a) None of the Pro-
Fac Companies is in (i) violation of its respective Charter
Documents or (ii) default or breach (with or without notice or
lapse of time or both), in the performance or observance of any
material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement,
deed of trust, note, lease or other agreement or instrument to
which it is a party or by which it may be bound or to which any
of its properties may be subject (any such default or breach
being hereafter referred to as a 'Contract Default'), except
for (x) such Contract Defaults which are not likely to have a
Material Adverse Effect and (y) such Contract Defaults as would
occur but for the repayment of the Indebtedness evidenced by
the agreement under which such Contract Default would occur out
of the proceeds of the financing for the Merger and related
transactions.
<PAGE>
20
(b) The execution and delivery by any of the the
Pro-Fac Companies of this Agreement or any of the other
Documents to which it is a party, the performance by each such
Person of its obligations hereunder and thereunder, the
consummation of the transactions contemplated hereby and
thereby, including, without limitation, the Guarantee of the
Notes by Pro-Fac and the Subsidiary Guarantors or the issuance,
sale and delivery of the Notes, do not and will not (i) violate
any provision of the Charter Documents of any such Person, or
(ii) violate or conflict with any statute, law, rule or
regulation or any judgment, decree or order of any court or
governmental authority, domestic or foreign, to which any such
Person or any of their respective properties may be subject,
(iii) constitute a Contract Default or (iv) result in or
require the imposition of, any Lien upon or with respect to any
of the properties now or hereafter owned by any such Person
(other than the Liens contemplated by the Bank Financing
Documents and Permitted Liens), except in the case of
clauses (ii), (iii) and (iv) above, for conflicts, Contract
Defaults or Liens, as the case may be, (x) that, individually
or in the aggregate, are not likely to have a Material Adverse
Effect or (y) which will have been cured (including by
repayment of the Indebtedness evidenced by the agreement under
which such Contract Default would occur out of the proceeds of
the financing for the Merger and related transactions) or
waived by consents obtained prior to the effectiveness of the
Merger.
Section 4.1.5. Due Execution, etc. This Agreement,
the Merger Agreement, the Guarantee of the Notes by Pro-Fac,
and each other Document has been duly authorized by all
necessary corporate action by each of the Pro-Fac Companies (to
the extent each is a party hereto and thereto), and assuming
due authorization and execution by the other parties hereto or
thereto, each Document constitutes the legal, valid and binding
obligation of each such Pro-Fac Company (to the extent each is
a party hereto and thereto) enforceable against each of them
(to the extent each is a party hereto and thereto) in
accordance with the respective terms hereof and thereof, except
(i) as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in
effect relating to or generally affecting creditors' rights and
general principles of equity, (ii) that the remedies of
specific performance and injunctive and other forms of
equitable relief are subject to certain equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought and (iii) as rights to indemnity and
contribution thereunder may be limited by applicable laws.
<PAGE>
21
Section 4.1.6. Governmental Consents. Based upon
and assuming the accuracy of the representations and warranties
of the Purchasers set forth herein and the representations of
the Placement Agent to be set forth in the letter delivered
pursuant to Section 3.2.3 hereof, no consent, order, approval
or authorization of, or filing, registration or qualification
with, any court, governmental, administrative or judicial
authority or regulatory body (domestic or foreign) (other than
any filings, consents, approvals, registrations or
qualifications (i) that have been previously obtained,
(ii) that are required under state securities or 'blue sky'
laws or, in the case of the Exchange Notes, the Securities Act
and the Trust Indenture Act of 1939 and (iii) the failure of
which to obtain is not likely to have a Material Adverse
Effect, a material adverse effect on the ability of any of the
Pro-Fac Companies to perform any of its material obligations
under any of the Documents to which it is a party or a material
adverse effect on the legality, validity or enforceability of
any of the Documents, and except, in the case of the Merger,
any filings required to comply with the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, and the regulations
thereunder and the filing of a certificate of merger with the
Secretary of State of the State of New York) is required on the
part of any Pro-Fac Company as a condition to the valid
(a) authorization, issuance, sale and delivery of the Notes,
(b) execution, delivery and performance of this Agreement, the
Merger Agreement or any of the other Documents by the Pro-Fac
Companies (to the extent each is a party thereto) or (c) the
consummation of the transactions contemplated hereby and
thereby.
Section 4.1.7. No Material Adverse Change. Other
than as described in the Offering Memorandum, since June 25,
1994 up to and including the Closing Date, there has not been
any material adverse change in the business, condition
(financial or otherwise), results of operations or properties
of any of the Pro-Fac Companies, taken as a whole.
Section 4.1.8. Full Disclosure. As of the date
thereof, the Offering Memorandum does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances
under which they were made, not misleading. There is no fact
known to Pro-Fac or the Company that Pro-Fac and the Company
have not disclosed to you in the Offering Memorandum or herein
that has, or that is likely to have, a Material Adverse Effect
or will materially adversely affect the ability of Pro-Fac and
<PAGE>
22
the Company to perform their obligations under this Agreement,
the Merger Agreement and the Bank Credit Agreement.
Section 4.1.9. Financial Statements. (a) The
Offering Memorandum includes (i) audited consolidated balance
sheets of Curtice-Burns as of the last day of its fiscal years
for 1993 and 1994 and related audited consolidated statements
of operations and retained earnings and cash flows for its
fiscal years 1992, 1993 and 1994 (collectively, the
'Curtice-Burns' Financial Statements'), audited by
Curtice-Burns' independent certified public accountants, whose
reports thereon are included therewith, and (ii) audited
balance sheets of Pro-Fac as of the last day of its fiscal
years for 1993 and 1994 and related audited statements of net
proceeds, cash flows and changes in shareholders' and members'
capitalization for its fiscal years 1992, 1993 and 1994
(collectively, the 'Pro-Fac Financial Statements' and, together
with the Curtice-Burns' Financial Statements, the 'Financial
Statements'), audited by Pro-Fac's independent certified public
accountants whose reports thereon are included therewith.
Except as otherwise stated in the notes thereto, the Financial
Statements have been prepared in accordance with GAAP applied
on a consistent basis and as of the dates and for the periods
indicated, the Curtice-Burns' Financial Statements present
fairly, in all material respects, the consolidated financial
position and results of operations and cash flows of
Curtice-Burns and the Pro-Fac Financial Statements present
fairly, in all material respects, the financial position and
results of operations and cash flows of Pro-Fac. Except as
reflected in the Financial Statements and the notes thereto,
neither Curtice-Burns nor Pro-Fac has any liabilities, absolute
or contingent, material to its business, condition (financial
or otherwise), results of operations or properties, other than
liabilities incurred since the last date of the Financial
Statements in connection with the ordinary conduct of its
business. The selected financial data (other than the pro
forma financial data) relating to Pro-Fac and Curtice-Burns,
respectively, included in the Offering Memorandum have been
compiled on a basis consistent with that of, or calculated
using the information in, the audited financial statements of
Pro-Fac and the audited consolidated financial statements of
Curtice-Burns as of the relevant dates and for the relevant
periods, as the case may be, and present fairly, in all
material respects, the information shown therein.
(b) The pro-forma financial statements and the
related notes thereto included in the Offering Memorandum have,
<PAGE>
23
except as specifically stated therein, been prepared in all
material respects in accordance with the applicable
requirements of GAAP and Rule 11-02 of Regulation S-X
promulgated under the Securities Act, include all adjustments
necessary to present fairly, in all material respects, the
pro-forma financial condition and results of operations at the
respective dates and for the respective periods indicated and
are based upon good faith estimates and assumptions believed by
the Company and Pro-Fac to be reasonable.
Section 4.1.10. Outstanding Indebtedness. Prior to
the Closing, the Company has and will have no material
outstanding indebtedness other than accrued fees and other
transaction costs incurred in connection with the Merger.
Section 4.1.11. Use of Proceeds. The net proceeds
from the sale of the Notes will be used solely for the purposes
set forth in the Offering Memorandum. None of the transactions
contemplated by this Agreement (including the use of the
proceeds from the sale of the Notes) will violate or result in
a violation of Section 7 of the Exchange Act or any regulation
issued pursuant thereto, including Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System.
Section 4.1.12. Pending Litigation. (a) Except as
described in the Offering Memorandum, there is no action, suit,
proceeding or investigation pending or, to the knowledge of
Pro-Fac and the Company, threatened against or, to the
knowledge of Pro-Fac and the Company, affecting any of the Pro-
Fac Companies or any of their respective properties or assets,
before any court or before any governmental, administrative or
regulatory authority or agency or arbitration board or tribunal
or similar body, which are, individually or in the aggregate,
likely to have a Material Adverse Effect.
(b) Except as described in the Offering Memorandum,
none of the Pro-Fac Companies is, on the date hereof, and after
giving effect to the transactions contemplated hereby, by the
Merger Agreement and by the other Documents, none of the Pro-
Fac Companies will be, subject to or in any way affected by,
any judgment, order, decree, rule or regulation of any court,
governmental authority or arbitration board or tribunal which
is likely to have a Material Adverse Effect.
Section 4.1.13. Title to and Condition of
Properties. Each of the Pro-Fac Companies (a) has good and
marketable title to all the properties and other assets (real or
<PAGE>
24
personal, tangible, intangible or mixed) owned by it, or
purported to be owned by it, free and clear of all Liens,
except for Permitted Liens, and (b) enjoys peaceful and
undisturbed possession under all leases to which it is a party
as lessee or sublessee, except for such leases that, in the
aggregate, are not material to the business, condition
(financial or otherwise), results of operations or properties
of the Pro-Fac Companies.
Section 4.1.14. Environmental Protection. Except as
described in the Offering Memorandum, there is no claim pending
or, to the knowledge of Pro-Fac or the Company, threatened or
contemplated under any Environmental Law against any Pro-Fac
Company which is likely to have a Material Adverse Effect; and
there are no past or present actions or conditions including,
without limitation, the release of any Hazardous Material that
are likely to form the basis of any such claim against any Pro-
Fac Company which are likely to have a Material Adverse Effect.
Section 4.1.15. Taxes. Each Pro-Fac Company has
filed all material Tax returns that are required to be filed by
it (which returns properly reflect, and do not understate, the
taxable income or the liability for Taxes of such Pro-Fac
Company) and have paid all Taxes due or claimed to be due,
except for such Taxes being diligently contested in good faith
and by appropriate proceedings and for which appropriate
reserves have been established on the balance sheet of Pro-Fac
or the consolidated balance sheet of Curtice-Burns included in
the Offering Memorandum in accordance with GAAP. No claims or
investigations for additional Taxes, interest or penalties are
now being asserted or, to the knowledge of Pro-Fac or the
Company, threatened against any Pro-Fac Company by any taxing
authority except for such claims for which appropriate reserves
have been established on the balance sheet of Pro-Fac or the
consolidated balance sheet of Curtice-Burns included in the
Offering Memorandum. None of the Pro-Fac Companies have, nor
will any of them have, any material liabilities for Taxes,
including interest and penalties thereon and related expenses,
except for ordinary and normal Taxes which are not yet due and
payable and such liabilities for which appropriate reserves on
the balance sheet of Pro-Fac or the consolidated balance sheet
of Curtice-Burns included in the Offering Memorandum have been
established.
Section 4.1.16. Compliance with Laws. None of the
Pro-Fac Companies is, or after giving effect to the
transactions contemplated by the Documents will be, in violation of
<PAGE>
25
any statute, law, ordinance, governmental rule or
regulation, or any judgment, order or decree (federal, state,
provincial, local or foreign) to which any of them is, or will
be, subject which is likely to have a Material Adverse Effect.
None of the Pro-Fac Companies has failed to obtain any
franchises, certificates, licenses, permits or other
governmental rights or authorizations, necessary to the
ownership or operation of their respective properties or the
conduct of their respective businesses (including matters
relating to environmental laws or regulations), after giving
effect to the transactions contemplated by the Documents,
except for such failures which are not likely to have a
Material Adverse Effect. All such franchises, certificates,
licenses, permits, rights and authorizations are in full force
and effect, and none of the Pro-Fac Companies is in violation
of any provision thereof in any material respect, except for
such violations are not likely to have a Material Adverse
Effect.
Section 4.1.17. Labor Relations. (a) No labor
strike, dispute, slowdown, stoppage, grievance, controversy or
other similar problem currently exists or is imminent with
respect to the employees of any of the Pro-Fac Companies that
is likely to have a Material Adverse Effect.
(b) None of the Pro-Fac Companies is engaged in any
unfair labor practice that is likely to have, singly or in the
aggregate, a Material Adverse Effect. There is (a) no unfair
labor practice complaint pending or, to the knowledge of the
management of Pro-Fac or the Company, threatened against any of
the Pro-Fac Companies before the National Labor Relations Board
and no grievance or arbitration proceeding arising out of or
under collective bargaining agreements so pending or
threatened, and (b) to the knowledge of the management of Pro-
Fac or the Company, no union organizing activity taking place,
that in each case, is likely to have, singly or in the
aggregate, a Material Adverse Effect.
Section 4.1.18. Private Offering. (a) Based upon
and assuming the accuracy of the representations and
warranties, of the Purchasers set forth herein and the
representations of the Placement Agent to be set forth in the
letter delivered pursuant to Section 3.2.3 hereof, (i) the
issuance and sale of the Notes hereunder (and the offering of
such Notes pursuant to the Offering Memorandum) is exempt from
the registration and prospectus delivery requirements under the
Securities Act and (ii) it is not necessary to qualify the
Indenture under the Trust Indenture Act of 1939, as amended.
<PAGE>
26
(b) None of the Pro-Fac Companies, nor, to the
knowledge of the Company and Pro-Fac, any Person authorized to
act on behalf of any of the Pro-Fac Companies (other than the
Placement Agent, as to whom no such representation or warranty
is made) has taken or will take any action which would require
registration of the offering and sale of the Notes pursuant to
this Agreement under the Securities Act or would violate
applicable state or 'blue sky' laws or any rules, regulations
or policies adopted thereunder. In the case of each offer or
sale of the Notes no form of general solicitation or general
advertising was used by any of the Pro-Fac Companies or any of
their respective officers, directors or employees including,
but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or
meeting whose attendees had been invited by any general
solicitation or general advertising. No securities of the same
class as the Notes have been issued and sold by the Company or
Pro-Fac within the six-month period immediately prior to the
date hereof. Each of the Company and Pro-Fac agrees that it
will not, and will not authorize anyone to, offer any similar
securities for issuance or sale to, or solicit any offer to
acquire any of the same from, or otherwise approach or
negotiate with respect thereto with any Person if the sale of
the Notes and any such securities would be integrated as a
single offering for the purposes of the Securities Act,
including Regulation D promulgated thereunder, except as may
otherwise be required pursuant to this Agreement, the
Registration Rights Agreement or the Indenture.
Section 4.1.19. Bank Credit Agreement and Merger
Agreement Representations and Warranties. (a) A true and
correct copy of the executed Merger Agreement, Bank Credit
Agreement and each of the other Documents have been delivered
to the Placement Agent and Cahill Gordon & Reindel, special
counsel to the Purchasers, at the Closing, each as amended
through the Closing Date. Each of the Merger Agreement, Bank
Credit Agreement and each of the other Documents described in
the Offering Memorandum conforms in all material respects to
the description thereof in the Offering Memorandum.
(b) The representations and warranties of each of
the parties to the Merger Agreement made therein are true and
correct in all material respects, except to the extent that any
such representation or warranty was expressly made as of a
specific date, in which case such representation or warranty
was true and correct in all material respects at such date.
<PAGE>
27
(c) The representations and warranties of each of
the Pro-Fac Companies set forth in the Bank Financing Documents
are true and correct in all material respects, except to the
extent that any such representation or warranty was expressly
made as of a specific date, in which case such representation
and warranty was true and correct in all material respects at
such date.
Section 4.1.20. Intellectual Property. Each Pro-Fac
Company owns, or has the right to use pursuant to valid and
effective agreements, (i) all patents, trademarks, trade names
and registered copyrights owned by the Pro-Fac Companies which
are material to their businesses taken as a whole
(collectively, the 'Proprietary Intellectual Property') and
(ii) all patents, trademarks, tradenames, copyrights,
technology and processes used by the Pro-Fac Companies in their
respective businesses which are material to their businesses
taken as a whole and are used pursuant to a license or other
right granted by a third party (collectively, the 'Licensed
Intellectual Property,' and together with the Proprietary
Intellectual Property, the 'Intellectual Property'). The
consummation of the Merger and the other transactions
contemplated hereby will not alter or impair any of the Pro-Fac
Companies' rights to use or interest in any of the Intellectual
Property, except where such alterations or impairments are not
likely to have a Material Adverse Effect. No claims are
pending or, to the knowledge of the Company or Pro-Fac,
threatened against the Pro-Fac Companies by any person with
respect to the use of any of the Intellectual Property or
challenging or questioning the validity or effectiveness of any
license or agreement relating to the same which are likely to
have a Material Adverse Effect. To the knowledge of the
Company or Pro-Fac, the current use by the Pro-Fac Companies of
the Intellectual Property does not infringe on the rights of
any person, except for such infringements which in the
aggregate are not likely to have a Material Adverse Effect. To
the knowledge of the Company or Pro-Fac, there are no pending
material claims or charges brought by any Pro-Fac Company
against any person with respect to the use of any of the
Intellectual Property or the enforcement of any of rights of
the Pro-Fac Companies relating to the Intellectual Property.
Section 4.1.21. Brokers. Other than as disclosed in
the Offering Memorandum, (a) none of the Pro-Fac Companies has
employed any broker, finder, commission agent or other Person
in connection with the offer and sale of the Notes and the
transactions contemplated by the Note Documents, and (b) none
<PAGE>
28
of the Pro-Fac Companies is under any obligation to pay any
broker's fee or commission in connection with such
transactions, other than certain fees payable to the Placement
Agent by the Company and Pro-Fac for investment banking
services rendered in connection with such transactions,
including the offer and sale of the Notes, which fees are the
sole obligation of the Company and Pro-Fac.
Section 4.1.22. Investment Company Act. None of the
Pro-Fac Companies is subject to regulation under the Investment
Company Act of 1940, as amended.
Section 4.1.23. Solvency. Each of the Pro-Fac
Companies, individually, is, and the Pro-Fac Companies taken as
a whole are, in each case both before and after giving effect
to the issuance of the Notes and the execution, delivery and
performance of this Agreement, the Merger Agreement and the
other Documents, Solvent.
Section 4.1.24. Insurance. Each of the Pro-Fac
Companies has insurance in such amounts and covering such risks
and liabilities as are in accordance with normal industry
practice.
Section 4.2. Purchaser Representations and
Warranties. Each Purchaser severally represents and warrants
to the Company and Pro-Fac as follows:
(a) Such Purchaser understands that the Notes are
being offered in a transaction not involving any public
offering in the United States within the meaning of the
Securities Act, that the Notes have not been registered
under the Securities Act and that (i) the Notes may be
offered, resold, pledged or otherwise transferred only
(A) to a Person who the seller reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A, in a transaction meeting the
requirements of Rule 144, outside the United States to a
foreign person in a transaction meeting the requirements
of Rule 904 under the Securities Act or in accordance with
another exemption from the registration requirements of
the Securities Act (and based upon an opinion of counsel,
reasonably acceptable to the Company, if the Company so
requests), (B) to the Company or (C) pursuant to an
effective registration statement, and, in each case, in
accordance with any applicable securities laws of any
State of the United States or any other applicable jurisdiction and
<PAGE>
29
(ii) the Purchaser will, and each subsequent holder is
required to, notify any subsequent purchaser from it of
the resale restrictions set forth in (i) above.
(b) Such Purchaser understands that the certificates
evidencing the Notes will, unless otherwise agreed by the
Company and the holder thereof, bear a legend
substantially to the following effect:
THE SECURITY (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE 'SECURITIES ACT'),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN
A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
THE COMPANY, IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY
<PAGE>
30
ANY PURCHASER FROM IT TO THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
(c) Such Purchaser is an Institutional Accredited
Investor (as defined in the Offering Memorandum) or an
entity in which all of the equity owners are Institutional
Accredited Investors (each within the meaning of
Regulation D under the Securities Act).
(d) (i) Any purchase of the Notes by such Purchaser
will be for its own account of for the account of one or
more other Institutional Accredited Investors or as
fiduciary for the account of one or more trusts, each of
which is an 'accredited investor' within the meaning of
Rule 501(a)(7) under the Securities Act and for each of
which it exercises sole investment discretion or (ii) such
purchaser is a 'bank,' within the meaning of Section 3
(a)(2) of the Securities Act, or a 'savings and loan
association' or other institution described in Section 3
(a)(5)(A) of the Securities Act that is acquiring the
Notes as fiduciary for the account of one or more
institutions for which it exercises sole investment
discretion.
(e) Such Purchaser is acquiring Notes having a
minimum purchase price of not less than $100,000 for its
own account or for any separate account for which it is
acting.
(f) Such Purchaser has such knowledge and experience
in financial and business matters that it is capable of
evaluating the merits and risks of purchasing Notes.
(g) Such Purchaser is not acquiring the Notes with a
view to any distribution thereof that would violate the
Securities Act or the securities laws of any State of the
United States or any other applicable jurisdiction or with
any present intention of offering or selling any of the
Notes in a transaction that would violate the Securities
Act or the securities laws of any State of the United
States or any other applicable jurisdiction; provided that
the disposition of its property and the property of any
accounts for which it is acting as fiduciary shall remain
at all times within its control.
(h) Such Purchaser has received a copy of the
Offering Memorandum and acknowledges that it has had
access to
<PAGE>
31
such financial and other information, and has
been afforded the opportunity to ask such questions of
representatives of Pro-Fac, the Company and Curtice-Burns
and receive answers thereto, as it deems necessary in
connection with its decision to purchase the Notes.
(i) Such Purchaser is not acquiring the Notes for or
on behalf of (within the meaning of ERISA), and will not
transfer the Notes to, any pension or welfare plan (as
defined in Section 3 of ERISA), except that such a
purchase for or on behalf of a pension or welfare plan
shall be permitted:
(i) to the extent such purchase is made by or
on behalf of a bank collective investment fund
maintained by the purchaser in which, at any time
while the Notes are held by the purchaser, no plan
(together with any other plans maintained by the same
employer or employee organization) has an interest in
excess of 10% of the total assets in such collective
investment fund and the conditions of Section III of
Prohibited Transaction Class Exemption 91-38 issued
by the Department of Labor are satisfied;
(ii) to the extent such purchase is made by or
on behalf of an insurance company pooled separate
account maintained by the purchaser in which, at any
time while the Notes are held by the purchaser, no
plan (together with any other plans maintained by the
same employer or employee organization) has an
interest in excess of 10% of the total of all assets
in such pooled separate account and the conditions of
Section III of Prohibited Transaction Class Exemption
90-1 issued by the Department of Labor are satisfied;
(iii) to the extent such purchase is made on
behalf of a plan by (A) an investment advisor
registered under the Investment Advisers Act of 1940
that had as of the last day of its most recent fiscal
year total assets under its management and control in
excess of $50.0 million and had stockholders' or
partners' equity in excess of $750,000, as shown in
its most recent balance sheet prepared in accordance
with generally accepted accounting principles, (B) a
bank as defined in Section 202(a)(2) of the
Investment Advisers Act of 1940 with equity capital
in excess of $1.0 million as of the last day of its most
<PAGE>
32
recent fiscal year, (C) an insurance company
which is qualified under the laws of more than one
state to manage, acquire or dispose of any assets of
a plan, which insurance company has as of the last
day of its most recent fiscal year, net worth in
excess of $1.0 million and which is subject to
supervision and examination by state authority having
supervision over insurance companies or (D) a savings
and loan association, the accounts of which are
insured by the Federal Savings and Loan Insurance
Corporation, that has made application for and been
granted trust powers to manage, acquire or dispose of
assets of a plan by a State or Federal authority
having supervision over savings and loan
associations, which savings and loan association has,
as of the last day of its most recent fiscal year,
equity capital or net worth in excess of $1.0 million
and, in any case, such investment adviser, bank,
insurance company or savings and loan is otherwise a
qualified professional asset manager, a such term is
used in Prohibited Transaction Class Exemption 84-14
issued by the Department of Labor, and the assets of
such plan when combined with the assets of other
plans established or maintained by the same employer
(or affiliate thereof) or employee organization and
managed by such investment adviser, bank, insurance
company or savings and loan, do not represent more
than 20% of the total client assets managed by such
investment advisor, bank, insurance company or
savings and loan, and the conditions of Section I of
such exemption are otherwise satisfied; or
(iv) to the extent such plan is a governmental
plan (as defined in Section 3 of ERISA) which is not
subject to the provisions of Title I of ERISA or
Section 4975 of the Code.
ARTICLE 5. COMPLIANCE WITH THE SECURITIES ACT
Section 5.1. Compliance with the Securities Act.
(a) None of the Notes may be sold, transferred or otherwise
disposed of (any such sale, transfer or other disposition, a
'sale'), except in compliance with this Section 5 and at all
times in compliance with the requirements of applicable state
and federal securities laws.
<PAGE>
33
(b) Each Purchaser acknowledges that the transfer
agent for the Notes will not register the transfer of such
Notes unless such transfer agent has received from the
prospective transferor (or a U.S. registered broker-dealer on
its behalf) a certificate in the form of Exhibit B to the
Indenture, in the case of transfers of the type described in
clause (A)(1)(c) of the legend set forth in Section 4.2(b) of
this Agreement, or in the case of transfers of the type
described in clause (A)(1)(d) of the legend set forth in
Section 4.2(b) of this Agreement, notification from the Company
to the effect that it has received the opinion of counsel
described in such legend.
Section 5.2. Certificates Evidencing the Notes.
(a) Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of
the Securities Act or applicable state securities or 'blue sky'
laws, the Notes (and all Notes or other securities issued in
exchange therefor or substitution thereof) shall bear the
legend set forth in Section 4.2(b) of this Agreement.
(b) In addition to any other legend required
pursuant to Section 5.2(a) above, a Global Note will bear the
following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
<PAGE>
34
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
(c) The certificates representing such Notes, and
each certificate issued in transfer thereof, shall also bear
any legend required under any applicable state securities or
'blue sky' laws.
(d) Each Purchaser consents to the Company making a
notation on its records or giving instructions to any transfer
agent of the Notes in order to implement the restrictions on
transfer mentioned in this Section 5.
Section 5.3. Information. (a) The Company hereby
agrees that it will provide the information as required
pursuant to Rule 144A(d)(4) under the Securities Act to each
Purchaser or any subsequent holder of Notes or, upon the
request of any Purchaser or the request of any such subsequent
holder, to any prospective purchaser designated by any such
Purchaser or such subsequent holder.
(b) Upon the request of the holder of a Note, the
Company will inform such holder if such Note (or any
predecessor Note) was held during the three year period
preceding such request by the Company, or, to the best
knowledge of the Company, a Person who was an affiliate of the
Company at the time of the sale of the Note by such person.
(c) The provisions of this Section 5.3 shall not
apply to any sale of a Note in a transaction that is registered
under the Securities Act pursuant to the terms of the
Registration Rights Agreement.
ARTICLE 6. SUBSTITUTION OF PURCHASERS
Section 6.1. Substitution of Purchasers. If (i) one
or more of the Purchasers does not purchase all or part of the
Notes (a 'Non-Purchaser') which such Non-Purchaser(s) has
agreed to purchase hereunder, and (ii) one or more other
Purchasers or one or more other Persons (a 'Substitute
Purchaser') is willing to assume the obligations of the
Non-Purchaser(s) under this Agreement, then the obligations of
the Non-Purchaser(s) to purchase Notes pursuant to this
Agreement may be assumed by the Substitute Purchaser(s), and
such Substitute
<PAGE>
35
Purchaser(s) shall be substituted for the Non-
Purchaser(s) under this Agreement, by such Substitute
Purchaser(s) executing and delivering a copy of this Agreement
and thereby becoming a party hereto. The inclusion of this
Section 6.1 in this Agreement, and the assumption by a
Substitute Purchaser of the obligations of a Non-Purchaser
pursuant to this Section 6.1, shall not constitute a waiver of
any rights that any Pro-Fac Company may have against such Non-
Purchaser if such Non-Purchaser has defaulted in its
obligations under this Agreement.
ARTICLE 7. MISCELLANEOUS
Section 7.1. Access to Information. (a) The
Company and Pro-Fac shall, from time to time, prior to the
Closing Date, provide to you upon request, or with respect to
Curtice-Burns or its Subsidiaries, use best efforts to provide
to you upon request, during normal business hours such other
information with respect to the offering of the Notes, the
operations, business, assets, properties or financial condition
of the Pro-Fac Companies as you may reasonably request.
(b) The Company and Pro-Fac shall provide to the
holder of a Note all of the information required to be
furnished by the Company and Pro-Fac pursuant to Section 4.7 of
the Indenture.
Section 7.2. Notices. Prior to the Closing, and
thereafter with respect to matters pertaining to this Agreement
only, all notices and other communications provided for or
permitted hereunder shall be made by hand delivery, first-class
mail (registered or certified, return receipt requested),
telecopier or commercial courier guaranteeing next day
delivery:
(a) if to the Purchasers at the address of each
Purchaser set forth on the counterpart signature pages
attached hereto, or at such other address as such
Purchaser may have furnished in writing to the Company,
with a copy to Cahill Gordon & Reindel, 80 Pine Street,
New York, New York 10005, Attention: John Schuster, Esq.
(telecopy number (212) 269-5420); and
(b) if to the Company or Pro-Fac, at 90 Linden
Place, P.O. Box 681, Rochester, New York 14603, Attention:
President (telecopy number (716) 383-1850) or at such
other address as the Company or Pro-Fac may have furnished
in writing to you, with copies to Howard, Darby & Levin,
<PAGE>
36
1330 Avenue of the Americas, New York, New York 10019,
Attention: Scott F. Smith, Esq. (telecopy number
(212) 841-1010); and Harris Beach & Wilcox, 130 East Main
Street, Rochester, New York 14604, Attention: Thomas M.
Hampson, Esq. (telecopy number (716) 232-6925).
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited
in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next business day after
timely delivery to the courier, if sent by commercial courier
guaranteeing next day delivery.
Section 7.3. Expenses. Whether or not the Notes are
sold hereunder, the Company and Pro-Fac agree, jointly and
severally, to pay all expenses relating to this Agreement and
the other Note Documents, including without limitation:
(a) the cost of printing and reproducing the Notes,
the other Note Documents, and any other documents
contemplated hereby or thereby;
(b) the cost, if any, of delivering to the home
office of each Purchaser or the office of the designee of
each Purchaser insured to the satisfaction of each
Purchaser, the Notes purchased by each such Purchaser at
the Closing;
(c) subject to Section 7.16, all reasonable out-of-
pocket expenses of the Purchasers relating to any
amendment, or modification of, or any waiver, or consent
or preservation of rights under, the Notes, the Note
Documents, or any other documents or instruments
regardless of whether such amendment, modification,
waiver, consent or preservation of rights becomes
effective;
(d) the reasonable fees and expenses of Cahill
Gordon & Reindel (some or all of which may be paid by the
Placement Agent pursuant to an agreement between the
Company, Pro-Fac and the Placement Agent);
(e) all taxes in connection with the issuance, sale
and delivery of the Notes to you and the execution and
delivery of the Note Documents and any other agreements
and instruments contemplated thereby and any modification
<PAGE>
37
of any of such Notes, Note Documents, or such other
agreements and instruments; and
(f) all other reasonable expenses, including
reasonable fees and expenses of counsel and accountants,
incurred by the Company and Pro-Fac in connection with the
transactions contemplated by the Note Documents.
The obligations of the Company and Pro-Fac under this
Section 7.3 shall survive termination of this Agreement and the
payment of all amounts due and payable under the Notes.
In addition, the Company and Pro-Fac, jointly and
severally, agree to pay any and all stamp, transfer and other
similar taxes payable as determined to be payable in connection
with the execution and delivery at the Closing Date of this
Agreement or the original issuance of the Notes, and to save
and hold each of the Purchasers harmless from and against any
and all liabilities with respect to or resulting from any delay
in paying, or omitting to pay, such taxes.
Section 7.4. Home Office Payment. Payment of
interest on all or any portion of the principal, premium, if
any, and interest of any Note which is not held by an initial
holder of the Notes shall be made by check to the holder
thereof.
The Company agrees, that, notwithstanding any
provision in the Indenture to the contrary, it shall initiate
deposit with the Paying Agent (as defined in the Indenture) by
10:00 a.m. (New York City time) on the date of payment as
provided in the Indenture any payments of principal, premium,
if any, and interest due on any certificated Notes. The Paying
Agent shall immediately after receipt of funds from the Company
initiate payment to each initial holder of the Notes by wire
transfer (or, upon the written request of the holder of any
certificated Note, by check) in immediately available funds on
the date of payment, to such account as may be specified by
separate written notice to the Company (or, if no such notice
is given, to the account specified by such holder on the
signature pages hereof), with a copy to the Trustee and the
Paying Agent, by such holder of a Note (providing sufficient
information with such wire transfer to identify the source and
application of the funds and requesting the bank to send a
credit advice thereof to such holder of a Note); provided, that
such notice shall be effective with respect to any interest
payment date under the Notes if, such notice shall be received
by the Trustee and the Paying Agent not later than five Business Days
<PAGE>
38
prior to such interest payment date. The Paying
Agent shall not be required to initiate a wire payment prior to
receipt of funds from the Company, and shall be entitled to
assume that the payment instructions for a holder of a Note
remain in effect until the Trustee and the Paying Agent receive
written notice of any change. The final payment of principal
on a Note may be made only upon presentment of such Note to the
Trustee.
Section 7.5. Termination. This Agreement may be
terminated (as to the party electing to so terminate it) at any
time prior to the Closing Date:
(a) by the Company or Pro-Fac if any of the
conditions specified in Section 3.2 hereof have not been
satisfied or waived by the Company and Pro-Fac pursuant to
the terms of this Agreement by 12:00 midnight, New York
City time, on November 4, 1994 or at such earlier date
that it becomes no longer reasonably possible that any
such condition can be satisfied; or
(b) by any Purchaser if any of the conditions
specified in Section 3.1 hereof have not been satisfied or
waived pursuant to the terms of this Agreement by 12:00
midnight, New York City time, on November 4, 1994 or at
such earlier date that it becomes no longer reasonably
possible that any such condition can be satisfied.
Section 7.6. Survival of Representations and
Warranties. All representations and warranties contained
herein will survive the execution and delivery of this
Agreement, regardless of (a) any investigation made by any
other party, (b) acceptance of any of the Notes any payment
therefor or (c) payment or prepayment of the Notes upon
redemption or otherwise.
Section 7.7. Assignments. This Agreement shall be
binding upon the Company, Pro-Fac and the Purchasers and each
of their respective successors and permitted assigns. The
rights of any Purchaser under this Agreement shall not be
assigned, and the duties of any Purchaser under this Agreement
shall not be delegated, without the written consent of the
Company (which consent shall not be unreasonably withheld)
except to a wholly-owned Subsidiary of such Purchaser;
provided, however, that such Purchaser shall remain obligated
to pay the Purchase Price in accordance with Section 2.2
hereof. Notwithstanding the foregoing, nothing contained in
this Section 7.7 shall prohibit transfers of Notes in
accordance with the terms
<PAGE>
39
of this Agreement, the Notes and the
Indenture, and the rights and interests of the Purchasers
hereunder may be assigned to and shall inure to the benefit of
any transferee of the Notes pursuant to Section 5 hereof until
the date which is the earlier of (i) the consummation of the
Registered Exchange Offer and (ii) the sale of the respective
Notes under a Registration Statement (as defined in the Regis-
tration Rights Agreement) with respect to the Notes.
Section 7.8. No Waiver; Modifications in Writing.
No failure or delay on the part of the Company, Pro-Fac or any
Purchaser in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein
are cumulative and are not exclusive of any remedies that may
be available to the Company, Pro-Fac or any Purchaser at law or
in equity or otherwise. No waiver of or consent to any
departure by the Company or Pro-Fac from any provision of this
Agreement shall be effective unless signed in writing by the
parties entitled to the benefit thereof; provided that notice
of any such waiver shall be given to each party hereto as set
forth above. Except as otherwise provided herein, no
amendment, modification or termination of any provision of this
Agreement shall be effective unless signed in writing by or on
behalf of each Purchaser. Any amendment, supplement or modifi-
cation of or to any provision of this Agreement, any waiver of
any provision of this Agreement, and any consent to any
departure by the Company or Pro-Fac from the terms of any
provision of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which made
or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Company or Pro-Fac in
any case shall entitle the Company or Pro-Fac to any other or
further notice or demand in similar or other circumstances.
Section 7.9. Counterparts. This Agreement may be
executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 7.10. Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
<PAGE>
40
Section 7.11. Consent to Jurisdiction and Service of
Process. Each of the Company and Pro-Fac hereby agrees that
any legal suit, action or proceeding brought by any of the
other parties to enforce any rights under or with respect to
the Notes, this Agreement or the transactions contemplated
hereby may be instituted in any state or federal court in The
City of New York, State of New York, waives to the fullest
extent permitted by law any objection which it may now or
hereafter have to the laying of venue of any such suit, action
or proceeding and irrevocably submit to the non-exclusive
jurisdiction of any such court in any such suit, action or
proceeding.
Section 7.12. GOVERNING LAW. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAW PRINCIPLES THEREOF).
Section 7.13. Entire Agreement. This Agreement,
together with the other Note Documents, is intended by the
parties hereto to constitute the final expression of their
agreement and to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings other than
those set forth or referred to herein and therein. This
Agreement, together with the other Note Documents, supersedes
all prior agreements and understandings between the parties
with respect to such subject matter.
Section 7.14. Severability. In the event that any
one or more of the provisions contained herein, or the
application thereof in any circumstances, is held to be
invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and unenforceability of any such
provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected.
Section 7.15. Delivery. Each Purchaser which is
acquiring Definitive Notes pursuant to Section 2.2 hereby
appoints the Placement Agent or the Trustee to accept delivery
of the Notes to be purchased by such Purchaser at the Closing
and execute a receipt for such Notes on its behalf.
Section 7.16. Attorneys' Fees. In any action or
proceeding brought to enforce any provision of this Agreement
or any other document or instrument contemplated hereby, or
<PAGE>
41
where any provision hereof is validly asserted as a defense,
the successful party shall be entitled to recover attorneys'
fees in addition to any other available remedy.
Section 7.17. Consent to Joint Representation. Each
Purchaser understands that (1) Cahill Gordon & Reindel has
acted as counsel to the Placement Agent in connection with the
offer and sale of the Notes and that Cahill Gordon & Reindel
has and continues to represent the Placement Agent on an on-
going basis in connection with other matters, (2) that Cahill
Gordon & Reindel has also acted as special counsel to the
Purchasers (except to the extent that any Purchasers have
retained separate counsel, in lieu of Cahill Gordon & Reindel),
and (3) the Placement Agent will be earning a fee for the
placement of the Notes. Each Purchaser acknowledges and agrees
that it has had adequate opportunity to consult counsel of its
choice with respect to the advisability of the representation
by Cahill Gordon & Reindel of the Placement Agent and of the
Purchasers. By its execution hereof each Purchaser confirms
its consent to such representation by Cahill Gordon & Reindel
of the Placement Agent and the Purchasers unless such Purchaser
has retained separate counsel, in lieu of Cahill Gordon &
Reindel, to represent it in connection with the purchase of the
Notes.
Section 7.18. Reliance Authorized. Cahill Gordon &
Reindel shall be entitled to rely, without limitation, on the
provisions related to it contained in Section 7.19 hereto.
Section 7.19. Indemnity. Pro-Fac and the Company
shall, jointly and severally, pay, indemnify, and hold each
Purchaser and each of their respective officers, directors,
agents and representatives (each, an 'Indemnified Person')
harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including reasonable fees
and expenses of counsel and reasonable allocated costs of
in-house counsel) of any kind or nature whatsoever with respect
to any investigation, litigation or proceeding related to any
action taken, or omitted to be taken, by Pro-Fac or the Company
in connection with the Merger or the financing thereof (whether
or not any Indemnified Person is a party to such investigation,
litigation or proceeding) (all the foregoing, collectively, the
'Indemnified Liabilities'); provided, however, that neither
Pro-Fac nor the Company shall have any obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of such
<PAGE>
42
Indemnified Person. The agreements in this section shall
terminate upon the consummation of an Exchange Offer or the
sale of any Notes pursuant to a Shelf Registration Statement
(as defined in the Registration Rights Agreement).
<PAGE>
43
If this Agreement is satisfactory, the Purchaser
should so indicate by signing six counterparts of this
Agreement in the space provided below, providing the
information indicated thereon, and delivering such counterparts
to the Company or Pro-Fac, whereupon this Agreement shall
become binding upon execution by the Company and Pro-Fac in
accordance with its terms.
Very truly yours,
PF ACQUISITION CORP.
By: /s/ Roy A. Myers
----------------
Title: President
PRO-FAC COOPERATIVE, INC.
By: /s/ Roy A. Myers
----------------
Title: General Manager
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
AMERICAN SKANDIA TRUST, a
Massachusetts business trust,
on behalf of its Federated High
Yield Portfolio
By: /s/ Gordon Boronow
Name: Gordon Boronow
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $250,000
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through the account
of its custodian, PNC Bank, N.A., maintained at The Depository
Trust Company. By accepting this signature page, the Company
and Pro-Fac will be deemed to acknowledge and agree that:
(1) American Skandia Trust ('AST') is a 'series company' as
defined in Rule 18f-2(a) promulgated under the Investment
Company Act of 1940, as amended, and the Purchaser is a
portfolio of assets specifically allocated to a series of
shares of AST as contemplated by such rule; (2) all persons
extending credit to, contracting with or having any claim
against the Purchaser (including any claims arising hereunder)
shall only look to the assets specifically allocated to the
Purchaser for payment under such credit, contract or claim and
not to any assets specifically allocated to another series of
shares of AST or to any other assets of AST; and (3) neither
the shareholders nor the directors of AST, nor any of AST's
officers, employees or agents, whether past, present or future,
shall be liable for such credit, contract or claim.
<PAGE>
2
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Amoco Global Fixed
Lazard Freres Asset Management,
__as discretionary investment manager
Name of Purchaser (Print)
By: /s/ Ira Handler
Name: Ira Handler
Title:
Address: Mail Code 13103A
200 East Randolf Drive
Chicago, IL 60680-0703
Telephone: _________________________
Telecopy: __________________________
Principal Amount of
Notes to be Purchased: $235,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Banque Nationale de Paris___________
Name of Purchaser (Print)
By: /s/ Charles M. Mixon
Name: Charles M. Mixon
Title: Vice President
Address: 499 Park Avenue
New York, N.Y.
Telephone: (212) 415-9777
Telecopy: ________________________
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Benefit Capital Mgmt. Corp. Seq # 2
Name of Purchaser (Print)
By: _______________________________
Name: James E. McCabe
Title: Vice Pres. Fixed Income
Address: 39 Old Ridgebury Rd.
Danbury, CT. 06817
Telephone: (203) 794-2693
Telecopy: (203) 794-2150
Principal Amount of
Notes to be Purchased: $3,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
CIGNA Investments, Inc.____________
Name of Purchaser (Print)
By: /s/ Alan C. Petersen__________
Name: Alan C. Petersen
Title: Managing Director
Address: 900 Cottage Grove Rd.
Bloomfield, CT. 06002
Telephone: (203) 726-7628
Telecopy: (203) 726-8137
Principal Amount of
Notes to be Purchased: $22,000,000
Tax ID Number: 06-0861092
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Corporate High Yield Fund, Inc.____
Name of Purchaser (Print)
By: /s/ Elizabeth Phillips________
Name: Elizabeth Phillips
Title: Vice President
Address: 800 Scudders Mill Rd.
Plainsboro, NJ 08536
Telephone: (609) 282-2905
Telecopy: (609) 282-2940
Principal Amount of
Notes to be Purchased: $2,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Corporate High Yield Fund II, Inc._
Name of Purchaser (Print)
By: /s/ Elizabeth Phillips________
Name: Elizabeth Phillips
Title: Vice President
Address: 800 Scudders Mill Rd.
Plainsboro, NJ 08536
Telephone: (609) 282-2905
Telecopy: (609) 282-2940
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
CRL Management Corp._______________
Name of Purchaser (Print)
By: /s/ C. R. Langston____________
Name: C. R. Langston
Title: President
Address: 154 W. 18th Street
Suite 6-D
New York, NY 10011
Telephone: (212) 571-2390
Telecopy: (212) 571-2423
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
AIM CAPITAL MANAGEMENT ON BEHALF OF
DELTA AIRLINE RETIREMENT TRUST_____
Name of Purchaser (Print)
By: /s/ John Pessarra_____________
Name: John Pessarra
Title:
Address: 11 Greenway Plaza
Ste. 1919
Houston, Texas 77046
Telephone: (713) 626-1919
Telecopy: ________________________
Principal Amount of
Notes to be Purchased: $1,260,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Detroit General Retirement System__
Name of Purchaser (Print)
By: /s/ Michael Lanier____________
Name: Michael Lanier
Title: Senior Vice President
Address: Wertheim Schroder Inv. Svcs.
787 7th Avenue, 5th Fl.
New York, N.Y. 10019
Telephone: (212) 492-6466
Telecopy: (212) 492-7037
Principal Amount of
Notes to be Purchased: $750,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
FEDERATED HIGH YIELD TRUST, a
Massachusetts business trust
By: Federated Management, a
Delaware business trust,
as attorney-in-fact
By: /s/ Mark E. Durbiano__________
Name: Mark E. Durbiano
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $1,650,000
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through the account
of its custodian, State Street Bank and Trust Company,
maintained at The Depository Trust Company. By accepting this
signature page, the Company and Pro-Fac will be deemed to
acknowledge and agree that, in accordance with the Declaration
of Trust pursuant to which the Purchaser has been organized as
a business trust under the laws of the Commonwealth of
Massachusetts, all persons extending credit to, contracting
with or having any claim against the Purchaser (including any
claims arising hereunder) shall only look to the assets of the
Purchaser for payment under such credit, contract or claim, and
neither the shareholders nor the trustees of the Purchaser, nor
any of the Purchaser's officers, employees or agents (including
the above-signed attorney-in-fact), whether past, present or
future, shall be liable therefor.
<PAGE>
13
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
FIXED INCOME SECURITIES, INC., a
Maryland corporation, on behalf
of its Strategic Income Fund
By: Federated Advisers, a
Delaware business trust,
as attorney-in-fact
By: Mark E. Durbiano_________________
Name: Mark E. Durbiano
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $100,000
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through the account
of its custodian, State Street Bank and Trust Company,
maintained at The Depository Trust Company. By accepting this
signature page, the Company and Pro-Fac will be deemed to
acknowledge and agree that: (1) Fixed Income Securities, Inc.
('FIS') is a 'series company' as defined in Rule 18f-2(a)
promulgated under the Investment Company Act of 1940, as
amended, and the Purchaser is a portfolio of assets
specifically allocated to a series of shares of FIS as
contemplated by such rule; (2) all persons extending credit to,
contracting with or having any claim against the Purchaser
(including any claims arising hereunder) shall only look to the
assets specifically allocated to the Purchaser for payment
under such credit, contract or claim and not to any assets
specifically allocated to another series
<PAGE>
2
of shares of FIS or to
any other assets of FIS; and (3) neither the shareholders nor
the directors of FIS, nor any of FIS's officers, employees or
agents (including the above-signed attorney-in-fact), whether
past, present or future, shall be liable for such credit,
contract or claim.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Fortis Advantage Portfolios, Inc.
High Yield Portfolio_____________
Name of Purchaser (Print)
By: /s/ David G. Carroll__________
Name: David G. Carroll
Title: Second Vice President
Address: 5500 Wayzata Blvd.
Suite 1150
Golden Valley, MN 55416
Telephone: (612) 544-1531
Telecopy: (612) 544-6363
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin AGE High Income___________
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy____
Name: Christopher J. Molumphy
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-2805
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $3,100,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin Multi-Income Trust_________
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy____
Name: Christopher J. Molumphy
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-2805
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $200,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin Strategic Income___________
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-2805
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $100,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin Tax-Advantaged High Yield__
Name of Purchaser (Print)
By: /s/ Betsy Hofman-Schwab________
Name: Betsy Hofman-Schwab
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-3097
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $300,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin Universal Trust____________
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-2805
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $600,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Franklin Valuemark Fund - High Yield
Name of Purchaser (Print)
By: /s/ Betsy Hofman-Schwab________
Name: Betsy Hofman-Schwab
Title: Portfolio Manager
Address: 777 Mariners Island Blvd.
San Mateo, CA 94404
Telephone: (415) 312-3097
Telecopy: (415) 312-2070
Principal Amount of
Notes to be Purchased: $700,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Harch & Company
High Yield Opportunity Fund
FBO Account 230-21244-21-280_________
Name of Purchaser (Print)
By: /s/ Michael E. Lewitt___________
Name: Michael E. Lewitt
Title: Executive Vice President
and General Counsel
Address: 621 NW 53rd St.
Boca Raton, FL
Telephone: (407) 995-4900
Telecopy: (407) 995-4949
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Harch & Company
for Lehman Offshore OSIP ___
Name of Purchaser (Print)
By: /s/ Michael E. Lewitt___________
Name: Michael E. Lewitt
Title: Executive Vice President
and General Counsel
Address: 621 NW 53rd St.
Boca Raton, FL
Telephone: (407) 995-4900
Telecopy: (407) 995-4949
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
HIGHLANDER INCOME FUND INC., a
Minnesota corporation
By: Federated Advisers, a
Delaware business trust,
as subadviser
By: /s/ Mark E. Durbiano____________
Name: Mark E. Durbiano
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $250,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
AIM CAPITAL MANAGEMENT ON BEHALF OF
HOUSTON POLICE OFFICERS PENSION SYSTEM
Name of Purchaser (Print)
By: /s/ John L. Pessarra_____________
Name: John L. Pessarra
Title:
Address: 11 Greenway Plaza
Ste. 1919
Houston, Texas 77046
Telephone: (713) 626-1919
Telecopy: __________________________
Principal Amount of
Notes to be Purchased: $240,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
IDS Extra Income Fund, Inc.___________
Name of Purchaser (Print)
By: /s/ Leslie L. Ogg_________________
Name: Leslie L. Ogg
Title: Vice President and
General Counsel
Address: c/o IDS Financial Corporation
3000 IDS Tower 10
Minneapolis, MN 55440
Telephone: Please contact Scott Schroepfer at
(612) 671-7653
Telecopy: (612) 671-5514
Principal Amount of
Notes to be Purchased: $4,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
ILLINOIS STATE BOARD OF INVESTMENT____
Name of Purchaser (Print)
By: /s/ Larry G. Darlington__________
Name: Larry G. Darlington
Title: Investment Officer
Address: 180 N. La Salle St.
Suite 2015
Chicago, IL 60601
Telephone: (312) 793-5718
Telecopy: (312) 793-2266
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
INVESTMENT SERIES FUNDS, INC., a
Maryland corporation, on behalf
of its Fortress Bond Fund
By: Federated Advisers, a
Delaware business trust,
as attorney-in-fact
By: /s/ Mark E. Durbiano____________
Name: Mark E. Durbiano
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $250,000
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through the account
of its custodian, State Street Bank and Trust Company,
maintained at The Depository Trust Company. By accepting this
signature page, the Company and Pro-Fac will be deemed to
acknowledge and agree that: (1) Investment Series Funds, Inc.
('ISF') is a 'series company' as defined in Rule 18f-2(a)
promulgated under the Investment Company Act of 1940, as
amended, and the Purchaser is a portfolio of assets
specifically allocated to a series of shares of ISF as
contemplated by such rule; (2) all persons extending credit to,
contracting with or having any claim against the Purchaser
(including any claims arising hereunder) shall only look to the
assets specifically allocated to the Purchaser for payment
under such credit, contract or claim and not to any assets
specifically allocated to another series
<PAGE>
of shares of ISF or to
any other assets of ISF; and (3) neither the shareholders nor
the directors of ISF, nor any of ISF's officers, employees or
agents (including the above-signed attorney-in-fact), whether
past, present or future, shall be liable for such credit,
contract or claim.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
John Hancock Strategic Income Fund____
Name of Purchaser (Print)
By: /s/ Frederick L. Cavanaugh_______
Name: Frederick L. Cavanaugh
Title: Portfolio Manager
Address: 101 Huntington Ave.
Boston, MA 02199
Telephone: (617) 375-1986
Telecopy: (617) 375-1531
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper High Yield Fund________________
Name of Purchaser (Print)
By: /s/ Michael A. McNamara__________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $3,200,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper Diversified Income Fund_______
Name of Purchaser (Print)
By: /s/ Michael A. McNamara_________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $250,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper Investors Fund High Yield Portfolio
Name of Purchaser (Print)
By: /s/ Michael A. McNamara______________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $230,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper High Income Trust_____________
Name of Purchaser (Print)
By: /s/ Michael A. McNamara_________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $210,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper Multi-Market Income Trust_____
Name of Purchaser (Print)
By: /s/ Michael A. McNamara_________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $70,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Kemper Strategic Income Fund_________
Name of Purchaser (Print)
By: /s/ Michael A. McNamara_________
Name: Michael A. McNamara
Title: Senior Vice President
Address: 120 South LaSalle Street
Chicago, IL 60603
Telephone: (312) 346-4127
Telecopy: (312) 499-8531
Principal Amount of
Notes to be Purchased: $40,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Keyport Life Insurance Co.___________
Name of Purchaser (Print)
By: /s/ Ann H. Benjamin_____________
Name: Ann H. Benjamin
Title: Senior Vice President
Address: Stein Roe & Farnham Inc.,
as Agent for Keyport Life Ins. Co.
One S. Wacker
Chicago, IL 60606
Telephone: (312) 368-8121
Telecopy: (312) 368-8100
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
LB Series Fund, Inc. (High Yield Portfolio)
Name of Purchaser (Print)
By: /s/ Thomas N. Haag____________________
Name: Thomas N. Haag
Title: Portfolio Manager
Address: 625 Fourth Avenue South
Minneapolis, MN 55415
Telephone: (612) 340-5722
Telecopy: (612) 340-5776
Principal Amount of
Notes to be Purchased: $2,750,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Lazard Strategic Yield PR
Lazard Freres Asset Managment,
__as discretionary investment manager
Name of Purchaser (Print)
By: /s/ Ira Handler_________________
Name: Ira Handler
Title:
Address: One Rockefeller Plaza
New York, NY 10020
Telephone: (212) 632-6000
Telecopy: (212) 632-6060
Principal Amount of
Notes to be Purchased: $315,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
LIBERTY HIGH INCOME BOND FUND,
INC., a Maryland corporation
By: Federated Advisers, a
Delaware business trust,
as attorney-in-fact
By: /s/ Mark E. Durbiano
Name: Mark E. Durbiano
Title: Vice President
Address: c/o Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attn: High Yield Bonds
Telephone: (412) 288-6476
Telecopy: (412) 288-6461
Principal Amount of
Notes to be Purchased: $1,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Lincoln National Investment Management
Company, its Attorney-in-Fact
By: /s/ Richard D. Shafer____________
Name: Richard D. Shafer
Title: Vice President
Address: 200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
Telephone: (219) 455-6151
Telecopy: (219) 455-1441
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Nominee Name: Linnett & Co.
The Advantage Strategic Income Fund__
Name of Purchaser (Print)
By: /s/ William H. Peck_____________
Name: William H. Peck
Title: Assistant Treasurer, The
Advantage Family of Funds
Address: Boston Security Counsellors
100 Federal Street, 29th Floor
Boston, MA 02110
Telephone: (617) 348-3107
Telecopy: (617) 348-3114
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Lutheran Brotherhood High Yield Fund
Name of Purchaser (Print)
By: /s/ Thomas N. Haag_____________
Name: Thomas N. Haag
Title: Portfolio Manager
Address: 625 Fourth Avenue South
Minneapolis, MN 55415
Telephone: (612) 340-5722
Telecopy: (612) 340-5776
Principal Amount of
Notes to be Purchased: $2,250,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Manusa Universal Life High Yield
(Acct Y212) (Nominee Name: Gullship)
Name of Purchaser (Print)
By: /s/ Terry Carr__________________
Name: Terry Carr
Title: Assistant Vice President
Address: 200 Bloor St. E, N.T.-6
Toronto, Ontario, Canada M4W 1E5
Telephone: (416) 926-5828
Telecopy: (416) 926-5432
Principal Amount of
Notes to be Purchased: $2,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Massachusetts Mutual Life Insurance Company
Name of Purchaser (Print)
By: /s/ Mary E. Wilson____________________
Name: Mary E. Wilson
Title: Vice President and
Managing Director
Address: 1295 State Street
Springfield, MA 01111
Telephone: (413) 744-6082
Telecopy: (413) 744-8798
Principal Amount of
Notes to be Purchased: $2,250,000
Section 4.2(i) of the Purchase Agreement is hereby
modified to provide, and Pro-Fac and the Company by their
acceptance hereof acknowledge, that a purchase for or on behalf
of a pension or welfare plan (as defined in Section 3 of ERISA)
shall also be permitted to the extent such purchase is made by
an insurance company with funds which constitute assets of its
general account in which, at all times while the Notes are held
by the purchaser, no such plan (together with any other plans
maintained by the same employer (or any affiliate thereof) or
employee organization) has an interest therein as
contractholder with respect to which the amount of reserves
(determined under Section 807(d) of the Internal Revenue Code)
exceed in the aggregate 10% of the total of all liabilities of
the general account.
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through its account
maintained at The Depository Trust Company.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Merrill Lunch Corporate Bond Fund, Inc.
High Income Portfolio___________________
Name of Purchaser (Print)
By: /s/ Vincent T. Lathbury____________
Name: Vincent T. Lathbury
Title: Vice President
Address: 800 Scudders Mill Rd.
Plainsboro, NJ 08536
Telephone: (609) 282-2084
Telecopy: (609) 282-2940
Principal Amount of
Notes to be Purchased: $21,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Northwestern Mutual Series Fund, Inc.
High Yield Bond Portfolio
Name of Purchaser (Print)
By: /s/ Steven P. Swanson
Name: Steven P. Swanson
Title: Vice President-Investments
Address: 720 East Wisconsin Avenue
Milwaukee, WI 53202
Telephone: (414) 299-7314
Telecopy: (414) 299-7124
Principal Amount of
Notes to be Purchased: $1,000,000
Section 4.2(i) of the Purchase Agreement is hereby
modified to provide, and Pro-Fac and the Company by their
acceptance hereof acknowledge, that a purchase for or on behalf
of a pension or welfare plan (as defined in Section 3 of ERISA)
shall also be permitted to the extent such purchase is made by
an insurance company with funds which constitute assets of its
general account in which, at all times while the Notes are held
by the purchaser, no such plan (together with any other plans
maintained by the same employer (or any affiliate thereof) or
employee organization) has an interest therein as
contractholder with respect to which the amount of reserves
(determined under Section 807(d) of the Internal Revenue Code)
exceed in the aggregate 10% of the total of all liabilities of
the general account.
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through its account
maintained at The Depository Trust Company.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
<PAGE>
provide the name of, and the foregoing information with respect
to, each such managed account.
PURCHASE AGREEMENT SIGNATURE PAGE
<PAGE>
Accepted and Agreed as of
the date first above written
The Northwestern Mutual Life Insurance Company
Name of Purchaser (Print)
By: /s/ Steven P. Swanson
Name: Steven P. Swanson
Title: Vice President
Address: 720 East Wisconsin Avenue
Milwaukee, WI 53202
Telephone: (414) 299-7314
Telecopy: (414) 299-7124
Principal Amount of
Notes to be Purchased: $14,000,000
Section 4.2(i) of the Purchase Agreement is hereby
modified to provide, and Pro-Fac and the Company by their
acceptance hereof acknowledge, that a purchase for or on behalf
of a pension or welfare plan (as defined in Section 3 of ERISA)
shall also be permitted to the extent such purchase is made by
an insurance company with funds which constitute assets of its
general account in which, at all times while the Notes are held
by the purchaser, no such plan (together with any other plans
maintained by the same employer (or any affiliate thereof) or
employee organization) has an interest therein as
contractholder with respect to which the amount of reserves
(determined under Section 807(d) of the Internal Revenue Code)
exceed in the aggregate 10% of the total of all liabilities of
the general account.
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through its account
maintained at The Depository Trust Company.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
<PAGE>
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
NYC Employees Retirement System
Name of Purchaser (Print)
By: /s/ Michael Lanier
Name: Michael Lanier
Title: Senior Vice President
Address: Wertheim Schroder Investment Svcs.
787 7th Avenue, 5th Floor
Telephone: (212) 492-6466
Telecopy: (212) 492-7037
Principal Amount of
Notes to be Purchased: $1,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
New York City Employees Retirement System
Name of Purchaser (Print)
Lazard Freres Asset Management,
as discretionary investment manager
By: /s/ Ira Handler
Name: Ira Handler
Title:
Address: Bureau of Asset Management
NYC Controller's Office
Room 736, 1 Centre Street
New York, New York 10007
Telephone:
Telecopy:
Principal Amount of
Notes to be Purchased: $450,000
Tax ID Number: 13-635-7165
The Purchaser represents that it is a Qualified
Institutional Buyer and wishes to hold Notes in book-entry form
and to receive payments in respect thereof through its account
maintained at The Depository Trust Company.
Each Purchaser executing this Purchase Agreement
Signature Page on behalf of one or more managed accounts should
provide the name of, and the foregoing information with respect
to, each such managed account.
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
NYC Police Department Pension Fund -
Sub Chapter 2
Name of Purchaser (Print)
By: /s/ Michael Lanier
Name: Michael Lanier
Title: Senior Vice President
Address: Wertheim Schroder Investment Svcs
787 7th Avenue, 5th Floor
New York, NY 10019
Telephone: (212) 492-6466
Telecopy: (212) 492-7037
Principal Amount of
Notes to be Purchased: $750,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Oppenheimer Champion High Yield Fund
Name of Purchaser (Print)
By: /s/ Ralph Stellmacher
Name: Ralph Stellmacher
Title: Vice President
Address: 3410 South Galena Street
Denver, CO 80231
Attn: Security Operations
Telephone: (303) 743-2978
Telecopy: (303) 743-2808
Principal Amount of
Notes to be Purchased: $0.5 million
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Oppenheimer High Yield Fund
Name of Purchaser (Print)
By: /s/ Ralph Stellmacher
Name: Ralph Stellmacher
Title: Vice President
Address: 3410 South Galena Street
Denver, CO 80231
Attn: Security Operations
Telephone: (303) 743-2978
Telecopy: (303) 743-2808
Principal Amount of
Notes to be Purchased: $4.5 million
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
ORIX USA Corporation
Name of Purchaser (Print)
By: /s/ Hiroyuki Miyauchi
Name: Hiroyuki Miyauchi
Title: Senior Vice President
Address: 780 Third Avenue - 48th Floor
New York, NY 10017
Telephone: (212) 418-8361
Telecopy: (212) 418-8308
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Pacific Mutual General Account
Name of Purchaser (Print)
By: /s/ Raymond Thee
Name: Raymond Thee
Title: Portfolio Manager
Address: 700 Newport Ctr Drive
Newport Beach, CA 92660
Telephone: (714) 640-3711
Telecopy: (714) 721-5258
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Pacific Select Fund The High Yield Bond Series
Name of Purchaser (Print)
By: /s/ Raymond Thee
Name: Raymond Thee
Title: Portfolio Manager
Address: 700 Newport Ctr Drive
Newport Beach, CA 77660
Telephone: (714) 640-3711
Telecopy: (714) 721-5258
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Phoenix Edge Bond Sep B
Name of Purchaser (Print)
By: /s/ Curtis Borrows
Name: Curtis Borrows
Title: Vice President
Address: 1 America Row
Hartford CT 06115
Telephone: 275-5282
Telecopy: 241-7210
Principal Amount of
Notes to be Purchased: $2,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Phoenix Series Fund
Name of Purchaser (Print)
By: /s/ Curtis Borrows
Name: Curtis Borrows
Title: Vice President
Address: 1 American Row
Hartford CT 06115
Telephone: 275-5282
Telecopy: 241-7210
Principal Amount of
Notes to be Purchased: $8,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Prospect Street High Income Portfolio Inc.
Name of Purchaser (Print)
By: /s/ Karen J. Thelen
Name: Karen J. Thelen
Title: Vice President
Address: Exchange Place
37th Floor
Telephone: (617) 742-3800
Telecopy: (617) 742-9455
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Providence Investment Management Group
Name of Purchaser (Print)
By: /s/ Fred Smith
Name: Fred Smith
Title: Partner
Address: 525 E 72 St., Ste. F 26
New York, NY 10021
Telephone: (212) 571-2353
Telecopy: (212) 571-2423
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
The Prudential Insurance Company of America,
as investment manager for the General Motors Retirement
Program for Salaried Employees High Yield Account
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
Name: Lars M. Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $1,500,000
<PAGE>
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
The U.S. HIGH YIELD FUND SICAV
By: The Prudential Insurance Company
of America as investment advisor
Name of Purchaser (Print)
By: /s/ Lars Berkman________________
Name: Lars Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $1,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
The Prudential Insurance Company of America,
as investment manager for the General Motors Hourly-Rate
Employees High Yield Account
Name of Purchaser (Print)
By: /s/ Lars M. Berkman_____________
Name: Lars M. Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $500,000
Inst'l ID: 25784
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
The High Yield Income Fund, Inc.
By: The Prudential Investment
Corporation, as investment advisor
Name of Purchaser (Print)
By: /s/ Lars Berkman__________________
Name: Lars Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
The Prudential Series Fund, Inc., High Yield Bond Portfolio
By: The Prudential Investment
Corporation, as investment advisor
Name of Purchaser (Print)
By: /s/ Lars Berkman_________________
Name: Lars Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $1,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Prudential High Yield Fund
By: The Prudential Investment Corporation,
as investment advisor
Name of Purchaser (Print)
By: /s/ Lars Berkman_________________
Name: Lars Berkman
Title: Vice President
Address: McCarter Highway & Market Street
Two Gateway Center, 7th Floor
Newark, New Jersey 07102-5096
Telephone: (201) 802-8507
Telecopy: (201) 802-9331
Principal Amount of
Notes to be Purchased: $12,500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Nomineee Name: Sestina & Co.
The Advantage High Yield Bond Fund
Name of Purchaser (Print)
By: /s/ William H. Peck_____________________ _
Name: William H. Peck
Title: Assistant Treasurer, The Advantage
Family of Funds
Address: Boston Security Counsellors
100 Federal Street 29th Floor
Boston, MA 02110
Telephone: (617) 348-3107
Telecopy: (617) 348-3114
Principal Amount of
Notes to be Purchased: $1,000,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Southern Farm Bureau Annuity Insurance
Company/Merrill Lynch Asset Management
Name of Purchaser (Print)
By: /s/ Vincent T. Lathbury__________
Name: Vincent T. Lathbury
Title: Vice President
Address: 800 Scudders Mill Rd.
Plainsboro, NJ 08536
Telephone: (609) 282-2084
Telecopy: (609) 282-2940
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Standard Security Life Insurance Company of New York
Name of Purchaser (Print)
By: /s/ David T. Ketig______________
Name: David T. Ketig
Title: Secretary
Address: 96 Cummings Pt. Rd.
Stamford, CT 06902
Telephone: (203) 358-8000
Telecopy: (203) 348-3103
Principal Amount of
Notes to be Purchased: $500,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
advisor to The City and County of San
Francisco Employees' Retirement System
Name of Purchaser (Print)
By: /s/ Sheldon Stone____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $1,510,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
advisor to Pacific Telesis Group__________
Name of Purchaser (Print)
By: /s/ Sheldon Stone____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $1,050,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
advisor to Howard Hughes Medical Institute
Name of Purchaser (Print)
By: /s/ Sheldon Stone____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $310,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management, Inc. as investment
advisor to TCW Galileo High Yield Bond Fund
Name of Purchaser (Print)
By: /s/ Sheldon Stone_____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $685,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
advisor to Chrysler Corporation
Name of Purchaser (Print)
By: /s/ Sheldon Stone____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $1,145,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
adviser to Morgan Stanley Group, Inc.
Name of Purchaser (Print)
By: /s/ Sheldon Stone____________________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $1,525,000.00
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TCW Asset Management Company as investment
adviser to USW Benefit Plans Investment Partnership
Name of Purchaser (Print)
By: /s/ Sheldon Stone_______________
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $275,000
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Trust Company of the West
as trustee of the
TCW High Yield Fund
Name of Purchaser (Print)
By: /s/ Sheldon Stone________________ __
Name: Sheldon Stone
Title: Managing Director
Address: 865 S. Figueroa St., Suite 1800
Los Angeles, CA 90017
Telephone: (213) 244-0000
Telecopy: (213) 244-0489
Principal Amount of
Notes to be Purchased: $4,500,000.00
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Value Line Aggressive Income Trust
Name of Purchaser (Print)
By: /s/ John W. Risner_____________
Name: John W. Risner
Title: Vice President
Address: 220 E. 42nd St., 6th Floor
New York, NY 10017
Telephone: (212) 907-1523
Telecopy: (212) 818-9781
Principal Amount of
Notes to be Purchased: $500,000.00
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
Van Kempen Merritt Corporation High Yield Fund
Name of Purchaser (Print)
By: /s/ Edward C. Wood_______________________
Name: Edward C. Wood
Title: Treasurer
Address: One Park View Plaza
Oakbrook Terrace, IL 60181
Telephone: (800) 225-2222
Telecopy:
Principal Amount of
Notes to be Purchased: $1,000,000.00
<PAGE>
PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
MASSMUTUAL/CARLSON CBO, N.V.
Name of Purchaser (Print)
By: /s/ Stephen M. Ash__________________
Name: MEESPIERSON TRUST (CURACAO) N.V.
Title: Managing Director
Address: c/o State Street Bank & Trust Company
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department
Telephone: (617) 786-3000
Telecopy: (617) 654-4703
Principal Amount of
Notes to be Purchased: $2,500,000
<PAGE>
Schedule 4.1.2
SUBSIDIARIES
I. Subsidiaries of Curtice-Burns
Curtice Burns Express, Inc. ('Express')1
Finger Lakes Packaging Company, Inc. ('Finger Lakes')1
Snyder's Potato Chips, Inc. ('Snyder's')
Quality Snacks, Inc. ('Quality')
La Restaurante of Altoona, Inc. ('La Restaurante')
Curtice Burns Meat Snacks, Inc. ('Meat Snacks')1
Quality Snax of Maryland, Inc. ('Snax')1
Kennedy Endeavors, Incorporated ('Kennedy')1
Husman Snack Foods Co., Inc. ('Husman')1
Seasonal Employers, Inc. ('Seasonal')1
Curtice Burns Export Corp. ('Export')
Nalley's Canada Limited ('Nalley's')1
Comstock Michigan Fruit Company of Canada, Ltd. ('CMF Ltd.')
Pro-Fac Holding Company of Iowa, Inc. ('Pro-Fac Iowa')1 2
_________________________
1 Subsidiary Guarantor
2 Subsidiary of Curtice-Burns after giving effect to the
transactions contemplated by this Agreement, the Merger
Agreement and the other Documents
<PAGE>
II. Subsidiaries of Pro-Fac (each as will exist immediately
after the Closing, after giving effect to the transac-
tions contemplated by this Agreement, the Merger Agree-
ment and other Documents)
<TABLE>
<CAPTION>
# of shares of
% of issued and Capital Stock
outstanding and other equity
Capital Stock securities of
and other equity Curtice-Burns and
securities held each Subsidiary
by Pro-Fac Guarantor held by
Jurisdiction of (directly and Pro-Fac (directly
Name Incorporation indirectly and indirectly)
- ---- -------------- ---------------- -------------------
<S> <C> <C> <C>
Curtice-Burns NY 100 10,000 (common
Foods, Inc. stock)
Pro-Fac Iowa NY 100 200 (common
stock)
Express NY 100 10 (common
stock)
Finger Lakes NY 100 200 (common
stock)
Snyder's PA 100 N.A.
Quality PA 100 N.A.
La Restaurante PA 100 N.A.
Meat Snacks DE 100 100 (common
stock)
Snax MA 100 50 (common
stock)
Kennedy WA 100 10,000 (common
stock)
Husman OH 100 200 (common
stock)
<PAGE>
Seasonal NY 100 500 (common
stock)
Export Virgin Islands 100 N.A.
Nalley's Canada 100 25,100 (ordinary
shares)
CMF Ltd. Canada 100 N.A.
</TABLE>
<PAGE>
________________________________________________________________________________
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of November 3, 1994
by and among
PF ACQUISITION CORP.
PRO-FAC COOPERATIVE, INC.
EACH OF THE SUBSIDIARY
GUARANTORS NAMED ON THE
SIGNATURE PAGES HEREOF
and
EACH OF THE PURCHASERS
NAMED ON THE SIGNATURE
PAGES HEREOF
________________________________________________________________________________
- --------------------------------------------------------------------------------
<PAGE>
This Registration Rights Agreement (this 'Agreement')
is made and entered into as of November 3, 1994 by and among PF
ACQUISITION CORP., a New York corporation (the 'Company'),
PRO-FAC COOPERATIVE, INC., a New York cooperative corporation
(the 'Parent Guarantor'), each of the Subsidiary Guarantors (as
hereinafter defined) identified on the signature pages hereof
(together with the Parent Guarantor, the 'Guarantors') and each
of the purchasers identified on the signature pages hereof
(each a 'Purchaser' and, together, the 'Purchasers'). The
execution and delivery of this Agreement is a condition to the
obligations of the Purchasers to purchase the Company's 12-1/4%
Senior Subordinated Notes due 2005 under the Purchase Agreement
dated as of November 3, 1994 (the 'Purchase Agreement') by and
among the Company, the Parent Guarantor and the Purchasers.
The Company, the Guarantors and the Purchasers hereby
agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Action: As defined in Section 8(c) of this
Agreement.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date that the Old Notes are
purchased by the Purchasers pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed 'Consummated' for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the Act of
the Exchange Offer Registration Statement relating to the New
Notes to be issued in the Exchange Offer, (ii) the maintenance
of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) of this
Agreement, and (iii) if any Old Notes are tendered by their
Holders pursuant to the Exchange Offer, the delivery by the
Company to the Registrar under the Indenture of New Notes in
<PAGE>
2
the same aggregate principal amount as the aggregate principal
amount of Old Notes that were so tendered.
Damages Payment Date: With respect to the Notes,
each Interest Payment Date.
Exchange Act: The Securities Exchange Act of 1934,
as amended.
Exchange Offer: The registration by the Company and
the Guarantors under the Act of the New Notes pursuant to a
Registration Statement pursuant to which the Company and the
Guarantors offer the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such
outstanding Old Notes that are Transfer Restricted Securities
held by such Holders for New Notes in an aggregate principal
amount equal to the aggregate principal amount of the Old Notes
that are Transfer Restricted Securities tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer,
including the related Prospectus.
Holders: As defined in Section 2(b) of this
Agreement.
Indenture: The Indenture, dated as of November 3,
1994, between the Company, the Parent Guarantor and IBJ
Schroder Bank & Trust Company, as trustee (the 'Trustee'),
pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with
its terms.
Interest Payment Date: As defined in the Old Notes.
Merger: The merger of the Company with and into
Curtice-Burns Foods, Inc., as contemplated by the Purchase
Agreement.
NASD: National Association of Securities Dealers,
Inc.
New Notes: The Company's 12-1/4% Senior Subordinated
Notes due 2005 to be issued pursuant to the Indenture in
connection with the Exchange Offer, together with the related
guarantee of the Guarantors.
<PAGE>
3
Notes: The Old Notes and the New Notes.
Old Notes: The Company's 12-1/4% Senior Subordinated
Notes due 2005 to be issued pursuant to the Indenture on the
Closing Date, together with the related guarantee of the
Guarantors.
Person: An individual, partnership, corporation,
trust or unincorporated organization, or a government or agency
or political subdivision thereof.
Prospectus: The prospectus included in a
Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment
Date relating to the Old Notes, each Person who is a Holder of
Old Notes on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 of
this Agreement.
Registration Statement: Any registration statement
of the Company and the Guarantors relating to (a) an offering
of New Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Shelf Filing Deadline: As defined in Section 4(a) of
this Agreement.
Shelf Registration Statement: As defined in Section
4(a) of this Agreement.
Subsidiary: With respect to any Person, any other
Person of which a majority of the equity ownership or the
voting securities is at the time owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such
Person or a combination thereof.
<PAGE>
4
Subsidiary Guarantor: Each Subsidiary of the Company
which, pursuant to the Indenture, is required to become a
guarantor of the obligations of the Company under the Notes and
the Indenture.
TIA: The Trust Indenture Act of 1939 as in effect on
the date of the Indenture.
Transfer Restricted Securities: Each Note, until the
earliest to occur of (a) the date on which such Note is
exchanged in the Exchange Offer and entitled to be resold to
the public by the Holder of such Note without complying with
the prospectus delivery requirements of the Act, (b) the date
on which such Note has been effectively registered under the
Act and disposed of in accordance with a Shelf Registration
Statement and (c) the date on which such Note is distributed to
the public pursuant to a transaction satisfying the conditions
for an exemption from registration in accordance with Rule 144
under the Act or by a Broker-Dealer pursuant to the 'Plan of
Distribution' contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained
therein).
Underwritten Registration or Underwritten Offering:
A registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities: The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b) Holders of Transfer Restricted Securities: A
Person is deemed to be a holder of Transfer Restricted
Securities (each, a 'Holder') whenever such Person owns
Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be
permissible under applicable federal law or Commission policy
(after the procedures set forth in Section 6(a) below have been
complied with), the Company and the Guarantors shall (i) cause
to be filed with the Commission as soon as practicable on or
prior to 45 days after the Closing Date, a Registration
Statement under the Act relating to the New Notes and the
Exchange Offer,
<PAGE>
5
and (ii) use their best efforts to cause such
Registration Statement to become effective as soon as
practicable on or prior to 90 days after the Closing Date. In
connection with the foregoing, the Company and the Guarantors
shall (A) file all pre-effective amendments to such
Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if
applicable, file a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act,
(C) cause all necessary filings in connection with the
registration and qualification of the New Notes to be made
under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer (provided,
however, that the Company and the Guarantors shall not be
obligated to qualify as a foreign corporation in any
jurisdiction in which they are not so qualified or to take any
action which would subject them to general service of process
or taxation in any jurisdiction where it is not so subject),
and (D) upon the effectiveness of such Registration Statement,
commence the Exchange Offer and use their best efforts to issue
on or prior to 45 days after the date on which such
Registration Statement is declared effective by the Commission
New Notes in exchange for all Old Notes tendered prior to such
issuance in the Exchange Offer. The Exchange Offer shall be on
the appropriate form permitting registration of the New Notes
to be offered in exchange for the Transfer Restricted
Securities and to permit resales of New Notes held by Broker-
Dealers as contemplated by Section 3(c) below. If, after such
Exchange Offer Registration Statement initially is declared
effective by the Commission, the Exchange Offer or the issuance
of New Notes under the Exchange Offer or the resale of New
Notes received by Broker-Dealers in the Exchange Offer as
contemplated by Section 3(c) below is interfered with by any
stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such
Registration Statement shall be deemed not to have become
effective for purposes of this Agreement during the period that
such stop order, injunction or other similar order or
requirement shall remain in effect.
(b) The Company and the Guarantors shall cause the
Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a
period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such
period be less than 20 business days nor longer than 90 days.
The Company and the Guarantors shall cause the Exchange Offer
to comply with all applicable federal and state securities
laws. The
<PAGE>
6
Company and the Guarantors shall only offer to
exchange New Notes for Old Notes in the Exchange Offer, and
only the New Notes shall be registered under the Exchange Offer
Registration Statement. The Company and the Guarantors shall
use their best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date, but not less than
20 business days, after the Exchange Offer Registration
Statement has become effective, but in no event later than 45
business days after such effective date.
(c) The Company and the Guarantors shall indicate in
a 'Plan of Distribution' section contained in the Prospectus
included in the Exchange Offer Registration Statement that any
Broker-Dealer that holds Old Notes that are Transfer Restricted
Securities and that were acquired for its own account as a
result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly
from the Company) may exchange such Old Notes pursuant to the
Exchange Offer; provided, however, that such Broker-Dealer may
be deemed to be an 'underwriter' within the meaning of the Act
and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any resales of the
New Notes received by such Broker-Dealer in the Exchange Offer.
Such 'Plan of Distribution' section shall allow the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Act, including participating Broker-
Dealers, and shall also contain all other information with
respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto,
but such 'Plan of Distribution' shall not name any such Broker-
Dealer or disclose the amount of Old Notes held by any such
Broker-Dealer except to the extent required by the Commission
as a result of a change in policy after the date of this
Agreement.
The Company and the Guarantors shall use their best
efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Old Notes acquired
by Broker-Dealers for their own accounts as a result of market-
making activities or other trading activities, and to ensure
that it conforms with the requirements of this Agreement, the
Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of 180 days from
the date on which the Exchange Offer Registration Statement is
declared effective. The Company shall provide sufficient
<PAGE>
7
copies of the latest version of such Prospectus to Broker-
Dealers promptly upon request at any time during such 180-day
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law
(after the procedures set forth in Section 6(a) below have been
complied with) or (ii) any Holder of Transfer Restricted
Securities shall notify the Company within 20 business days
before the Consummation of the Exchange Offer that such Holder
(A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the
New Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) is a Broker-
Dealer and holds Old Notes acquired directly from the Company,
any Guarantor or one of their affiliates, then the Company and
the Guarantors shall (x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the 'Shelf Registration Statement'), on or prior
to the earliest to occur of (1) the 45th day after the date on
which the Company determines that it is not required to file
the Exchange Offer Registration Statement, or (2) the 45th day
after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by
clause (ii) above (such earliest date being the 'Shelf Filing
Deadline'), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant
to Section 4(b) of this Agreement, and (y) use their best
efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 45th day
after the Shelf Filing Deadline. The Company and the
Guarantors shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c)
of this Agreement to the extent necessary to ensure that it is
available for resales of Old Notes by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section
4(a), and to ensure that it conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations
<PAGE>
8
of the Commission as announced from time to time, for a
continuous period of three years following the date on which
such Shelf Registration Statement becomes effective under the
Act or such shorter period that will terminate when all the Old
Notes covered by the Shelf Registration Statement have been
sold pursuant to such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 business days
after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary
Prospectus included in such Shelf Registration Statement. No
Holder of Transfer Restricted Securities shall be entitled to
liquidated damages pursuant to Section 5 of this Agreement
unless and until such Holder shall have provided all such
reasonably requested information. Each Holder as to which any
Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all material information
required to be disclosed in order to make the information
previously furnished to the Company by such Holder not
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to
the date specified for such filing in this Agreement, (ii) any
of such Registration Statements has not been declared effective
by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has
not been Consummated within 45 business days after the date on
which the Exchange Offer Registration Statement is declared
effective by the Commission or (iv) any Registration Statement
required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or usable in connection
with resales of Transfer Restricted Securities during the
periods required by this Agreement (each such event referred to
in clauses (i) through (iv), a 'Registration Default'), the
Company and the Guarantors hereby jointly and severally agree
to pay liquidated damages to each Holder of Transfer Restricted
Securities affected by the Registration Default with respect to
the first 90-day period immediately following the occurrence of
such Registration Default, in an amount equal to $.05 per week
<PAGE>
9
per $1,000 principal amount of Old Notes constituting Transfer
Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The
amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Old
Notes constituting Transfer Restricted Securities with respect
to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated
damages of $.30 per week per $1,000 in principal amount of Old
Notes constituting Transfer Restricted Securities.
Notwithstanding the foregoing, the Company and the Guarantors
shall not be required to pay liquidated damages to each Holder
of Transfer Restricted Securities if the Registration Default
arises from the failure of the Company and the Guarantors to
file, or cause to become effective, a Shelf Registration
Statement within the time period required by Section 4 of this
Agreement and such Registration Default is by reason of the
failure of the Holders to provide the information required
pursuant to Section 4(b) of this Agreement, or provide the
information reasonably requested by the Company or the
Guarantors, the NASD or any other regulatory agency having
jurisdiction over any of the Holders. All accrued liquidated
damages shall be paid by the Company and/or the Guarantors on
each Damages Payment Date by wire transfer of immediately
available funds or by federal funds check. Following the cure
of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated
damages with respect to such Transfer Restricted Securities
will cease.
All obligations of the Company and the Guarantors set
forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in
full, except that liquidated damages with respect to such
Transfer Restricted Securities shall cease to accrue.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company and the
Guarantors shall comply with all of the provisions of Section
6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the
following provisions:
<PAGE>
10
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange
Offer is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Old
Notes. The Company and the Guarantors hereby agree to
pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission
policy. The Company and the Guarantors hereby agree,
however, to (A) participate in telephonic conferences with
the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth
the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted
and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in
the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is
not an affiliate of the Company or any Guarantor, (B) it
is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any person to
participate in, a distribution of the New Notes to be
issued in the Exchange Offer and (C) it is acquiring the
New Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's and
the Guarantors' preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any Broker-
Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this
Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (including any no-
action letter obtained pursuant to clause (i) above), and
<PAGE>
11
(2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary
resale transaction should be covered by an effective
registration statement containing the selling security
holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of New
Notes obtained by such Holder in exchange for Old Notes
acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors
shall provide a supplemental letter to the Commission
(A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position
of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and
Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and
(B) including a representation that neither the Company
nor any Guarantor has entered into any arrangement or
understanding with any Person to distribute the New Notes
to be received in the Exchange Offer and that, to the best
of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the New
Notes in its ordinary course of business and has no
arrangement or understanding with any Person to
participate in the distribution of the New Notes received
in the Exchange Offer.
(b) Shelf Registration Statement. In the event that
a Shelf Registration Statement is required by this Agreement,
the Company and the Guarantors shall comply with all the
provisions of Section 6(c) of this Agreement and shall use
their best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
of such Transfer Restricted Securities and, in connection
therewith, the Company and the Guarantors will as expeditiously
as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
of such Transfer Restricted Securities.
<PAGE>
12
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus, to the extent that the
same are required to be available to permit resales of Old
Notes by Broker-Dealers), the Company and the Guarantors shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or
any regulation thereunder, financial statements of the
Guarantors) for the period specified in Section 3 or 4 of
this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the
Guarantors shall promptly notify the Holders to suspend
use of the Prospectus, and the Holders shall suspend use
of the Prospectus, and such Holders shall not communicate
non-public information to any third party, in violation of
the securities laws, until the Company and the Guarantors
have made an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either
clause (A) or (B), the Company and the Guarantors shall
use their best efforts to cause such amendment to be
declared effective and such Registration Statement and the
related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to such
Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period
set forth in Section 3 or 4 of this Agreement, or such
shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the
Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and
the Company, the Guarantors, the Purchaser, and the
Holders shall comply with the provisions of the Act with
respect to the disposition of
<PAGE>
13
all Transfer Restricted
Securities covered by such Registration Statement during
the applicable period in accordance with the intended
method or methods of distribution by the sellers of such
securities set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons,
confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for
additional information relating to such Registration
Statement or Prospectus, (C) of the issuance by the
Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event
that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or
supplement to such Registration Statement or Prospectus,
or any document incorporated by reference in such
Registration Statement or Prospectus untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make
the statements in such Registration Statement or
Prospectus not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities
commission or other regulatory authority shall issue an
order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company and the
Guarantors shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish to each of the selling Holders and each
of the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included in such Registration Statement or
Prospectus or any amendments or supplements to any such
<PAGE>
14
Registration Statement or Prospectus, which documents will
be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five
business days, and the Company and the Guarantors will not
file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement
or Prospectus (including all such documents incorporated
by reference) to which any selling Holder of Transfer
Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably
object within five business days after the receipt of such
Registration Statement or Prospectus. A selling Holder or
underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement,
Prospectus, amendment or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission;
(v) promptly prior to the filing of any document
that is to be incorporated by reference into a
Registration Statement or Prospectus, (a) provide copies
of such document to the selling Holders and to the
underwriter(s), if any, (b) make the Company's and the
Guarantors' representatives available for discussion of
such document and other customary due diligence matters,
and (c) include such information in such document prior to
the filing of such document as such selling Holders or
underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for
inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the under-
writer(s) all financial and other records, pertinent
corporate documents and properties of the Company and the
Guarantors and cause the Company's and the Guarantors'
officers, directors and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment, if necessary, such
information as such selling Holders and underwriter(s), if
any,
<PAGE>
15
may reasonably request to have included therein,
including, without limitation, information relating to the
'Plan of Distribution' of the Transfer Restricted
Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid for
Transfer Restricted Securities and any other terms of the
offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy
of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including, upon
the request of such Person, all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Person may
reasonably request; the Company and the Guarantors hereby
consent to the use of the Prospectus and any amendment or
supplement to the Prospectus by each of the selling
Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) enter into such reasonable agreements (including
an underwriting agreement), and make such reasonable
representations and warranties, and take all such other
reasonable actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all as may be
reasonably requested by any Holder of Transfer Restricted
Securities or any underwriter in connection with any sale
or resale of Transfer Restricted Securities pursuant to
any Registration Statement contemplated by this Agreement;
and whether or not an underwriting agreement is entered
into
<PAGE>
16
and whether or not the registration is an
Underwritten Registration, the Company and the Guarantors
shall:
(A) furnish to each selling Holder and each
underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily
made by issuers to underwriters in primary
underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration
Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a
principal financial or accounting officer of
each of the Company and the Guarantors,
confirming, as of the date thereof, the matters
set forth in Sections 3.1.2 and 3.1.3 of the
Purchase Agreement and such other matters as are
customary in underwritten offerings;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for
the Company and the Guarantors, covering the
matters set forth in Section 3.1.1(a) and (b) of
the Purchase Agreement and such other matters as
such parties may reasonably request, and in any
event including a statement to the effect that
such counsel has participated in discussions
with representatives of the Company and the
Guarantors, representatives of the independent
public accountants for the Company and the
Guarantors, the Holders' representatives and the
Holders' counsel in connection with the
preparation of such Registration Statement and
the related Prospectus and have advised as to
the requirements of the Act and the rules and
regulations thereunder; and that such counsel
confirms that, on the basis of the foregoing,
nothing which came to such counsel's attention
caused such counsel to believe that the
applicable Registration Statement, at the time
such Registration Statement or any post-
effective
<PAGE>
17
amendment thereto became effective,
and, in the case of the Exchange Offer
Registration Statement, as of the date of
Consummation, contained an untrue statement of a
material fact or omitted to state a material
fact required to be stated in such Registration
Statement or necessary to make the statements in
such Registration Statement not misleading, or
that the Prospectus contained in such
Registration Statement as of its date and, in
the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue
statement of a material fact or omitted to state
a material fact necessary in order to make the
statements in the Prospectus, in light of the
circumstances under which they were made, not
misleading, although such counsel does not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in such Registration Statement and
Prospectus other than the descriptions of the
Notes, the Guarantees and the Indenture.
Without limiting the foregoing, such counsel may
state further that the statements made by such
counsel as aforesaid do not extend to the
financial statements, notes and schedules and
other financial and statistical data or to any
information provided by any Holders or
underwriters, included in any Registration
Statement contemplated by this Agreement or the
related Prospectus, as to which such counsel
need express no opinion or belief; and
(3) a customary comfort letter, dated as
of the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, from
the Company's and the Guarantors' independent
accountants, in the customary form and covering
matters of the type customarily covered in
comfort letters to underwriters in connection
with primary underwritten offerings, and
affirming the matters set forth in the comfort
letters delivered pursuant to Section 3.1.4 of
the Purchase Agreement;
<PAGE>
18
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section
8 of this Agreement with respect to all parties to be
indemnified pursuant to Section 8 (or such other
provisions and procedures acceptable to the Company,
the Guarantors, Holders of a majority in aggregate
principal amount of Transfer Restricted Securities
covered by such Registration Statement and the
managing underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and
certificates as may be reasonably requested by each
selling Holder and each underwriter, if any, to
evidence compliance with clause (A) above and with
any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company and/or the Guarantors pursuant to
this clause (x), if any.
(xi) prior to any public offering of Transfer
Restricted Securities, cooperate with and cause the
Guarantors to cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders
and underwriter(s) may reasonably request and do any and
all other reasonable acts or things necessary or advisable
to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that neither
the Company nor the Guarantors shall be required to
register or qualify as a foreign corporation where it is
not now so qualified or to take any action that would
subject it to the service of process in suits or to
taxation, other than as to matters and transactions
relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) shall issue, upon the request of any Holder of
Old Notes covered by the Shelf Registration Statement, if
any, New Notes having an aggregate principal amount equal
to the aggregate principal amount of Old Notes surrendered
to the Company by such Holder in exchange therefor or
being sold by such Holder; such New Notes to be registered
in the name of such Holder or, if being sold by such
<PAGE>
19
Holder in the name of the purchaser(s) of such New Notes,
as the case may be; in return, the Old Notes held by such
Holder shall be surrendered to the Company for
cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and
registered in such names as the Holders or the
underwriter(s), if any, may request at least two business
days prior to any sale of Transfer Restricted Securities
made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer
Restricted Securities covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary
to enable the seller or sellers of such Transfer
Restricted Securities or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause
(xi) above;
(xv) if any fact or event contemplated by Section
6(c)(iii)(D) of this Agreement shall exist or have
occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any
document incorporated in such Registration Statement or
Prospectus by reference or file any other required
document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the
Registration Statement and Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under
the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with the Depositary Trust Company;
(xvii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
<PAGE>
20
'qualified independent underwriter') that is required to
be retained in accordance with the rules and regulations
of the NASD, and use its reasonable best efforts to cause
such Registration Statement to become effective and
approved by such governmental agencies or authorities as
may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of
such Transfer Restricted Securities subject to the proviso
contained in clause (xi) above;
(xviii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission in
regard to any Registration Statement, and make generally
available to its security holders, as soon as practicable,
a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-
month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold
to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's
first fiscal quarter commencing after the effective date
of the Registration Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Old Notes to effect such changes to the
Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and
execute, and use their best efforts to cause the Trustee
to execute, all documents that may be required to effect
such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to
be so qualified in a timely manner.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) of this Agreement, such Holder will
forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement
until such Holder's receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 6(c)(xv) of this
Agreement, or until it is advised in writing (the 'Advice') by
the Company that the use of the Prospectus may be resumed, and
has received
<PAGE>
copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 of this Agreement, as applicable, shall
be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) of this Agreement to and including the
date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) of this
Agreement or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement
will be borne by the Company and/or the Guarantors regardless
of whether a Registration Statement becomes effective,
including, without limitation: (i) all registration and filing
fees and expenses (including filings made with the NASD (and,
if applicable, the fees and expenses of any 'qualified
independent underwriter' and its counsel that may be required
by the rules and regulations of the NASD, provided that such
fees and expenses shall not include any underwriting discounts
or commissions charged in connection with such sales));
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the
New Notes to be issued in the Exchange Offer and printing of
Prospectuses); (iv) all fees and disbursements of counsel for
the Company, the Guarantors and, subject to Section 7(b) below,
the Holders of Transfer Restricted Securities; and (v) all fees
and disbursements of independent certified public accountants
of the Company and the Guarantors (including the expenses of
any special audit and comfort letters required by or incident
to such performance).
Each of the Company and the Guarantors will, in any
event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses
of any
<PAGE>
annual audit and the fees and expenses of any Person,
including special experts, retained by it.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the
Exchange Offer Registration Statement and the Shelf
Registration Statement), the Company will reimburse the Holders
of Transfer Restricted Securities being tendered in the
Exchange Offer and/or resold pursuant to the 'Plan of
Distribution' contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Cahill
Gordon & Reindel or such other counsel as may be chosen by the
Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors jointly and
severally agree to indemnify and hold harmless each Holder,
each person, if any, who controls any Holder within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act,
the agents, employees, officers and directors and the agents,
employees, officers and directors of any such controlling
person (collectively, the 'Holder indemnified parties') from
and against any and all losses, liabilities, claims, damages
and reasonable expenses whatsoever (including but not limited
to reasonable attorneys' fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation) to which they or any of
them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or
Prospectus, or in any supplement thereto or amendment thereof,
or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company and the
Guarantors will not be liable in any such case to the extent,
but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such
untrue statement or alleged
<PAGE>
untrue statement or omission or alleged omission made therein
in reliance and in conformity with written information furnished
to the Company or the Guarantors by or on behalf of the Holders
expressly for use therein; provided, further, that the Company and
the Guarantors shall not be liable to any Holder indemnified party
under the indemnity agreement in this subsection with respect to
any preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such Holder indemnified party results
from an untrue statement of a material fact contained in, or
the omission of a material fact from, such preliminary
Prospectus, which untrue statement or omission was corrected in
the final Prospectus, if the Company or the Guarantors shall
sustain the burden of proving that such Holder indemnified
party sold Old Notes to the person alleging such loss, claim,
damage or liability without sending or giving, at or prior to
the written confirmation of such sale, a copy of the Prospectus
or of the Prospectus as then amended or supplemented if the
Company and the Guarantors had previously furnished copies
thereof to such Holder indemnified party. This indemnity
agreement will be in addition to any liability that the Company
or any of the Guarantors may otherwise have, including, but not
limited to, under this Agreement.
(b) Each Holder agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Guarantors,
each person, if any, who controls the Company or the Guarantors
within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act, and each of their agents, employees, officers
and directors and the agents, employees, officers and directors
of such controlling person from and against any losses,
liabilities, claims, damages and reasonable expenses whatsoever
(including but not limited to reasonable attorneys' fees and
any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever and any and
all reasonable amounts paid in settlement of any claim or
litigation) to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in
each case to the
<PAGE>
extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is
based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of such Holder expressly for use therein. This
indemnity will be in addition to any liability which the
Holders may otherwise have, including, but not limited to,
under this Agreement.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, suit or proceeding (collectively, an 'Action'),
such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is
to be sought in writing of the commencement of such Action (but
the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may
have under this Section 8 except to the extent that it has been
prejudiced in any material respect by such failure or from any
liability which it may otherwise have). In case any such
Action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement of such
Action, the indemnifying party will be entitled to participate
in such Action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense of such Action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such Action,
but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the
defense of such Action, (ii) the indemnifying parties shall not
have employed counsel to take charge of the defense of such
Action within a reasonable time after notice of commencement of
the Action, or (iii) such indemnified party or parties shall
have reasonably concluded that one counsel could not properly
and effectively represent both the indemnifying parties and the
indemnified parties, in any of which events such fees and
expenses of counsel shall be borne by the indemnifying parties.
In no event shall the indemnifying party be liable for the fees
and expenses of more than one counsel (together with
appropriate local counsel) at any time for all indemnified
parties in connection with any one
<PAGE>
Action or separate but substantially similar or related Actions in
the same jurisdiction arising out of the same general allegations or
circumstances. Anything in this Section to the contrary
notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or Action effected without its
written consent; provided, however, that such consent was not
unreasonably withheld.
(d) In order to provide for contribution in
circumstances in which the indemnification provided for in
paragraphs (a) and (b) of this Section 8 is for any reason held
to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this
Section 8, the Company, the Guarantors and the Holders shall
contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such
indemnification provision (including any reasonable
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any Action or any
claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the
indemnifying party, any contribution received by the
indemnifying party, from persons other than the indemnified
party who may also be liable for contribution, including
persons who control the indemnified party within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) to
which the Company, the Guarantors and the Holders may be
subject, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors,
on the one hand, and the Holders, on the other hand, from the
offering of the Old Notes or, if such allocation is not
permitted by applicable law or indemnification is not available
as a result of the indemnifying party not having received
notice as provided in paragraph (c) of this Section 8, in such
proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the
Company and the Guarantors, on the one hand, and the Holders,
on the other hand, in connection with the statements or
omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations.
(e) The Company, the Guarantors and the Purchasers
agree that it would not be just and equitable if contribution
pursuant to paragraph (d) of this Section 8 were determined by
pro rata allocation or by any other method of allocation that
does not take into account the equitable consideration referred
to above. Notwithstanding the provisions of paragraph (d) of
<PAGE>
this Section 8, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes
of paragraphs (d) and (e) of this Section 8, each person, if
any, who controls the Holders within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as the Holders, and each person, if
any, who controls the Company or the Guarantors within the
meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as the
Company or the Guarantors, subject in each case to clauses (i)
and (ii) of this Section 8(e). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any Action against such party in respect of
which a claim for contribution may be made against another
party or parties under paragraph 8(d) or (e) of this Section 8,
notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under
paragraph (d) or (e) of this Section 8, except to the extent
that it has been prejudiced in any material respect by such
failure or from any liability which it may otherwise have. No
party shall be liable for contribution with respect to any
Action or claim settled without its written consent; provided,
however, that such written consent was not unreasonably
withheld.
SECTION 9. RULE 144A
The Company and the Guarantors hereby agree with each
Holder, for so long as any Transfer Restricted Securities
remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in
connection with any sale of such securities and any prospective
purchaser of such Transfer Restricted Securities from such
Holder or beneficial owner the information required by Rule
144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration under this Agreement unless such Holder (a) agrees
to sell such Holder's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the
Persons entitled under this Agreement to approve such
arrangements
<PAGE>
and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under
the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten
Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided, that
such investment bankers and managers must be reasonably
satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being
entitled to exercise all rights provided in this Agreement, in
the Indenture, the Purchase Agreement or granted by law,
including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this
Agreement. The Company and the Guarantors agree that monetary
damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any Action
for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Each of the Company
and the Guarantors will not on or after the date of this
Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions of this Agreement. Neither the Company nor any of
the Guarantors have previously entered into any agreement,
still in effect as of the date hereof, granting any
registration rights with respect to its securities to any
Person. The rights granted to the Holders under this Agreement
do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or the
Guarantors' securities under any agreement in effect on the
date of this Agreement.
<PAGE>
(c) Adjustments Affecting the Old Notes. The
Company and the Guarantors will not take any action, or permit
any change to occur, with respect to the Old Notes that would
materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions of
this Agreement may not be given unless the Company has obtained
the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure
from the provisions of this Agreement that relates exclusively
to the rights of Holders whose securities are being sold or
tendered pursuant to a Registration Statement and that does not
affect directly or indirectly the rights of other Holders whose
securities are not being sold or tendered pursuant to such
Registration Statement may be given by the Holders of a
majority of the outstanding principal amount of Transfer
Restricted Securities being so sold or tendered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy
to the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors, at:
90 Linden Place
P.O. Box 681
Rochester, New York 14603
Attention: President
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas
New York, New York 10019
Attention: Scott F. Smith, Esq.
and
Harris Beach & Wilcox
<PAGE>
130 East Main Street
Rochester, New York 14604
Attention: Thomas M. Hampson, Esq.
All such notices and communications shall be deemed
to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) five business days after being
deposited in the mail, postage prepaid, if mailed; (iii) when
answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties, including without limitation
and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties to this Agreement
in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning of this Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more
of the provisions contained in this Agreement, or the
application of any such provision in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions contained in this Agreement shall
not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with
the other Note Documents (as defined in the Purchase Agreement)
<PAGE>
is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement
of the agreement and understanding of the parties to this
Agreement in respect of the subject matter contained in this
Agreement. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to in this
Agreement with respect to the registration rights granted by
the Company and the Guarantors with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect
to such subject matter.
(l) Signatures of the Subsidiary Guarantors. The
Company hereby agrees that it shall cause each of the
Subsidiary Guarantors to execute this Agreement on the Closing
Date, after which the Subsidiary Guarantors shall be deemed to
be parties to this Agreement on and after the date of this
Agreement for all purposes.
[Signatures on Next Page]
<PAGE>
[Registration Rights Agreement -- Company's Signature Page]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PF ACQUISITION CORP.
By: /s/ Roy A. Myers
----------------------
Name: Roy A. Myers
Title: President
PRO-FAC COOPERATIVE, INC.
By: /s/ Roy A. Myers
----------------------
Name: Roy A. Myers
Title: General Manager
HUSMAN SNACK FOODS COMPANY, INC.
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
FINGER LAKES PACKAGING COMPANY, INC.
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
CURTICE-BURNS MEAT SNACKS, INC.
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
<PAGE>
CURTICE-BURNS EXPRESS, INC.
By: /s/ Roy A. Myers
----------------------
Name: Roy A. Myers
Title: President
PRO-FAC HOLDING COMPANY OF IOWA, INC.
By: /s/ Roy A. Myers
----------------------
Name: Roy A. Myers
Title: Vice President
SEASONAL EMPLOYERS, INC.
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
QUALITY SNAX OF MARYLAND, INC.
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
NALLEY'S CANADA LIMITED
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
KENNEDY ENDEAVORS, INCORPORATED
By: /s/ William D. Rice
----------------------
Name: William D. Rice
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed to as of the
date first above written:
AMERICAN SKANDIA TRUST, a
Massachusetts business trust,
on behalf of its Federated High
Yield Portfolio
By: /s/_Gordon Boronow
-------------------------
Name: Gordon Boronow
Title: Vice President
By accepting this signature page, the Company,
Pro-Fac and each Subsidiary Guarantor will be deemed to
acknowledge and agree that: (1) American Akandia Trust ('AST')
is a 'series company' as defined in Rule 18f-2(a) promulgated
under the Investment Company Act of 1940, as amended, and the
Purchaser is a portfolio of assets specifically allocated to a
series of shares of AST as contemplated by such rule; (2) all
persons extending credit to, contracting with or having any
claim against the Purchaser (including any claims arising
hereunder) shall only look to the assets specifically allocated
to the Purchaser for payment under such credit, contract or
claim and not to any assets specifically allocated to another
series of shares of AST or to any other assets of AST; and (3)
neither the shareholders nor the directors of AST, nor any of
AST's officers, employees or agents, whether post, present or
future, shall be liable for such credit, contract or claim.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Amoco Global Fund
----------------------------------
Name of Purchaser (Print)
Lazard Freres Asset
Management, as discretionary
investment manager
By: /s/ Ira Handler
------------------------------
Name: Ira Handler
Title:
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Banque National DeParis
---------------------------------
Name of Purchaser (Print)
By: /s/ Charles M. Mixon
-----------------------------
Name:
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Benefit Capital Management Corp.
SEG #2_____________ ___________
Name of Purchaser (Print)
By: /s/ James E. McCabe
-----------------------------
Name: James E. McCabe
Title: Vice-Pres. Fixed
Income
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
CIGNA Investments, Inc.
-------------------------------
Name of Purchaser (Print)
By: /s/ Alan C. Petersen
--------------------------------
Name: Alan C. Petersen
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Corporate High Yield Fund, Inc.__
Name of Purchaser (Print)
By: /s/ Elizabeth Phillips
Name: Elizabeth Phillips
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Corporate High Yield Fund
II, Inc._________________________
Name of Purchaser (Print)
By: /s/ Elizabeth Phillips
Name: Elizabeth Phillips
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
CRL Management Corp. ____________
Name of Purchaser (Print)
By: /s/ C.R. Langston
Name: C.R. Langston
Title: President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
AIM CAPITAL MANAGEMENT ON
BEHALF OF DELTA AIRLINES
RETIREMENT TRUST_________________
Name of Purchaser (Print)
By: /s/ John L. Pessarra
Name: John L. Pessarra
Title:
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
DETROIT GENERAL RETIREMENT SYSTEM
Name of Purchaser (Print)
By: /s/ Michael Lanier
Name: Michael Lanier
Title: Senior Vice President
Wertheim Schroder
Inv. Svcs.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
FEDERATED HIGH YIELD TRUST, a
Massachusetts business trust
By: Federated Management, a
Delaware business trust, as
attorney-in-fact
By: /s/ Mark E. Durbiano
Name: Mark E. Durbiano
Title: Vice President
By accepting this signature page, the Company,
Pro-Fac and each Subsidiary Guarantor will be deemed to
acknowledge and agree that, in accordance with the Declaration
of Trust pursuant to which the Purchaser has been organized as
a business trust under the laws of the Common wealth of
Massachusetts, all persons extending credit to, contracting
with or having any claim against the Purchaser (including any
claims arising hereunder) shall only look to the assets of the
Purchaser for payment under such credit, contract or claim, and
neither the shareholders nor the trustees of the Purchaser, nor
any of the Purchaser's officers, employees or agents (including
the above-signed attorney-in-fact), whether past, present or
future, shall be liable therefor.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed to as of the
date first above written:
FIXED INCOME SECURITIES, INC., a
Maryland corporation, on behalf
of its Strategic Income Fund
By: Federated Advisers, a
Delaware business trust, as
attorney-in-fact
By: /s/ Mark E. Durbiano
Name: Mark E. Durbiano
Title: Vice President
By accepting this signature page, the Company,
Pro-Fac and each Subsidiary Guarantor will be deemed to
acknowledge and agree that: (1) Fixed Income Securities, Inc.
('FIS') is a 'series company' as defined in Rule 18f-2(a)
promulgated under the Investment Company Act of 1940, as
amended, and the Purchaser is a portfolio of assets
specifically allocated to a series of shares of FIS as
contemplated by such rule; (2) all persons extending credit to,
contracting with or having any claim against the Purchaser
(including any claims arising hereunder) shall only look to the
assets specifically allocated to the Purchaser for payment
under such credit, contract or claim and not to any assets
specifically allocated to another series of shares of FIS or to
any other assets of FIX; and (3) neither the shareholders nor
the directors of FIS; nor any of FIS's officers, employees or
agents (including the above-signed attorney-in-fact), whether
past, present or future, shall be liable for such credit,
contract or claim.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Fortis Advantage Portfolios,
Inc. - High Yield Portfolio
Name of Purchaser (Print)
By: /s/ David G. Carroll
Name: David G. Carroll
Title: Second Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin AGE High Income Fund
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin Multi-Income Trust
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin Strategic Income Fund
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin Tax-Advantaged
High Yield
Name of Purchaser (Print)
By: /s/ Betsey Hofman-Schwab
Name: Betsy Hofman-Schwab
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin Universal Trust
Name of Purchaser (Print)
By: /s/ Christopher J. Molumphy
Name: Christopher J. Molumphy
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Franklin Valuemark Funds -
High Yield_______________________
Name of Purchaser (Print)
By: /s/ Betsey Hofman-Schwab
Name: Betsy Hofman-Schwab
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
HARCH & COMPANY
Name of Purchaser (Print)
High Yield Opportunity Fund FBO ACCOUNT 230-31244-21-280
By: /s/ Michael E. Lewitt
Name: Michael E. Lewitt
Title: Executive Vice
President
General Counsel
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
HARCH & COMPANY
Name of Purchaser (Print)
FBO LEHMAN OFFSHORE OSIP
By: /s/ Michael E. Lewitt
Name: Michael E. Lewitt
Title: Executive Vice
President
General Counsel
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
HIGHLANDER INCOME FUND INC., a
Minnesota corporation
By: Federated Advisers, a
Delaware business trust,
as subadviser
By: /s/ Mark E. Durbiano
Name: Mark E. Durbiano
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
AIM CAPITAL MANAGEMENT ON BEHALF
OF HOUSTON POLICE OFFICERS
PENSION SYSTEM__________________
Name of Purchaser (Print)
By: /s/ John L. Pessarra
Name: John L. Pessarra
Title:
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
IDS Extra Income Fund, Inc.
Name of Purchaser (Print)
By: /s/ Leslie L. Ogg
Name: Leslie L. Ogg
Title: Vice President and
General Counsel
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
ILLINOIS STATE BOARD OF
INVESTMENT_______________________
Name of Purchaser (Print)
By: /s/ Larry G. Darlington
Name: Larry G. Darlington
Title: Investment Officer
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed to as of the
date first above written:
INVESTMENT SERIES FUNDS, INC., a
Maryland corporation, on behalf
of its Fortress Bond Fund
By: Federated Advisers, a
Delaware business trust, as
attorney-in-fact
By: /s/ Mark R. Durbiano
Name: Mark E. Durbiano
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
John Hancock Strategic Income
Fund_____________________________
Name of Purchaser (Print)
By: /s/ Frederick L. Cavanaugh
Name: Frederick L. Cavanaugh
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper High Yield Fund___________
Name of Purchaser (Print)
By: /s/ Michael A. McNamara______
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper Diversified Income Fund___
Name of Purchaser (Print)
By: /s/ Michael A. McNamara______
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper Investors Fund
High Yield Portfolio __
Name of Purchaser (Print)
By: /s/ Michael A. McNamara______
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper High Income Trust
Name of Purchaser (Print)
By: /s/ Michael A. McNamara______
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper Multi-Market
High Income Trust
Name of Purchaser (Print)
By: /s/ Michael A. McNamara _____
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Kemper Strategic Income Trust
Name of Purchaser (Print)
By: /s/ Michael A. McNamara _____
Name: Michael A. McNamara
Title: Senior Vice President
<PAGE>
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Stein Roe & Farnham for Keyport
Life Insurance Co.
Name of Purchaser (Print)
By: /s/ Ann H. Benjamin
Name: Ann H. Benjamin
Title: Sr. V.P.
STEIN ROE & FARNHAM INC.
AS AGENT FOR KEYPORT LIFE
INS. CO.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
LB Series Fund, Inc. (High Yield
Portfolio)
Name of Purchaser (Print)
By: /s/ Thomas N. Haag
Name: Thomas N. Haag
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Lazard Strategic Yield PR
Name of Purchaser (Print)
Lazard Freres Asset Management as
discretionary investment manager
By: /s/ Ira Handler
Name: Ira Handler
Title:
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed to as of the
date first above written:
LIBERTY HIGH INCOME BOND FUND,
INC., a Maryland corporation
By: Federated Advisers, a
Delaware business trust,
as attorney-in-fact
By: /s/ Mark E. Durbiano
Name: Mark E. Durbiano
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln National Investment
Management Company, Its
Attorney-In-Fact
Name of Purchaser (Print)
By: /s/ Richard D. Shafer
Name: Richard D. Shafer
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
The Advantage Strategic Income
Fund_____________________________
Name of Purchaser (Print)
By: /s/ William H. Peck
Name: William H. Peck
Title: Assistant Treasurer
The Advantage Family
of Funds
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Lutheran Brotherhood High Yield
Fund
Name of Purchaser (Print)
By: /s/ Thomas N. Haag
Name: Thomas N. Haag
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
MANUSA Universal High
Yield (Nominee: Gullship)
Name of Purchaser (Print)
By: /s/ Terry Carr
Name: Terry Carr
Title: Assistant Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
Name of Purchaser (Print)
By: /s/ Mary E. Wilson
Name: Mary E. Wilson
Title: Vice President and
Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
MASSMUTUAL/CARLSON CBO, N.V.
Name of Purchaser (Print)
By: /s/ Stephen M. Ash
MEESPIERSON TRUST (CURACAO)
Name: Stephen M. Ash
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Merrill Lynch Corporate Bond
Fund, Inc. High Income Portfolio
Name of Purchaser (Print)
By: /s/ Vincent T. Lathbury
Name: Vincent T. Lathbury
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
NORTHWESTERN MUTUAL SERIES FUND,
INC. -- HIGH YIELD BOND PORTFOLIO
Name of Purchaser (Print)
By: /s/ Steven P. Swanson
Name: Steven P. Swanson
Title: Vice President-
Investments
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
Name of Purchaser (Print)
By: /s/ Steven P. Swanson
Name: Steven P. Swanson
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
NYC EMPLOYEES RETIREMENT SYS.
Name of Purchaser (Print)
By: /s/ Michael Lanier
Name: Michael Lanier
Title: Senior Vice President
Wertheim Schroder Inv.
Svcs.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
New York City Employees
Retirement System
Name of Purchaser (Print)
Lazard Freres Asset Management,
as discretionary Investmetn
Manager
By: /s/ Ira Handler
Name: Ira Handler
Title:
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
NYC POLICE DEPARTMENT PENSION
FUND-SUB CHAPTER 2
Name of Purchaser (Print)
By: /s/ Michael Lanier
Name: Michael Lanier
Title: Senior Vice President
Wertheim Schroder Inv.
Svcs.
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Oppenheimer Champion High Yield
Fund
Name of Purchaser (Print)
By: /s/ Ralph Stellmacher
Name: Ralph Stellmacher
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Oppenheimer High Yield Fund
Name of Purchaser (Print)
By: /s/ Ralph Stellmacher
Name: Ralph Stellmacher
Title: Vice President
<PAGE>
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
ORIX USA Corporation
--------------------------------
Name of Purchaser (Print)
By: /s/ Hiroyuki Miyauchi
----------------------------
Name: Hiroyuki Miyauchi
Title: Senior Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Pacific Mutual General Account
--------------------------------
Name of Purchaser (Print)
By: /s/ Raymond Lee
----------------------------
Name: Raymond Lee
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Pacific Select Fund
The High Yield Bond Series
--------------------------------
Name of Purchaser (Print)
By: /s/ Raymond Lee
----------------------------
Name: Raymond Lee
Title: Portfolio Manager
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Phoenix Edge Bond Sep B
--------------------------------
Name of Purchaser (Print)
By: /s/ Curtiss Barrows
----------------------------
Name: Curtiss Barrows
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Phoenix Series Fund
--------------------------------
Name of Purchaser (Print)
By: /s/ Curtiss Barrows
----------------------------
Name: Curtiss Barrows
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Prospect Street High Income
Portfolio Inc.
--------------------------------
Name of Purchaser (Print)
By: /s/ Karen J. Thelen
----------------------------
Name: Karen J. Thelen
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Providence Investment
Management Group
--------------------------------
Name of Purchaser (Print)
By: /s/ Fred Smith
----------------------------
Name: Fred Smith
Title: Partner
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
The Prudential Insurance Company
of America, as investment manager
for the General Motors Retirement
Retirement Program for Salaried
Employees High Yield Account
--------------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
THE U.S. HIGH YIELD FUND SICAV
By: The Prudential Insurance
Company of America, as
investment advisor
---------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
The Prudential Insurance Company
of America, as investment manager
for the General Motors Hourly-
Rate Employees High Yield Account
---------------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
-----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
THE HIGH YIELD INCOME FUND, INC.
By: The Prudential Investment
Corporation, as investment
advisor
---------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
-----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
THE PRUDENTIAL SERIES FUND, INC.
HIGH YIELD BOND PORTFOLIO
By: The Prudential Investment
Corporation, as investment
advisor
---------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
PRUDENTIAL HIGH YIELD FUND
By: The Prudential Investment
Corporation, as investment
advisor
---------------------------
Name of Purchaser (Print)
By: /s/ Lars M. Berkman
-----------------------------
Name: Lars M. Berkman
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
The Advantage High Yield
Bond Fund________________________
Name of Purchaser (Print)
By: /s/ William H. Peck
Name: William H. Peck
Title: Assistant Treasurer
The Advantage Family
of Funds
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Southern Farm Bureau Annuity
Insurance Company/Merrill
Lynch Asset Management___________
Name of Purchaser (Print)
By: /s/ Vincent T. Lathbury
Name: Vincent T. Lathbury
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Standard Security Life Insurance
Company of New York______________
Name of Purchaser (Print)
By: /s/ David T. Kettig
Name: David T. Kettig
Title: Secretary
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company as
investment advisor to The City
and County of San Francisco
Employees' Retirement System_____
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company
as investment advisor to
Pacific Telesis Group____________
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company
as investment advisor to
Howard Hughes Medical Institute__
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Funds Management, Inc.
as investment advisor to
TCW Galileo High Yield Bond Fund_
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company as
investment advisor to USW Benefit
Plans Investment Partnership_____
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company
as investment advisor to
Chrysler Corporation_____________
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
TCW Asset Management Company
as investment advisor to
Morgan Stanley Group, Inc._______
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Trust Company of the West
as trustee of the
TCW High Yield Fund______________
Name of Purchaser (Print)
By: /s/ Sheldon Stone
Name: Sheldon Stone
Title: Managing Director
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Value Line Aggressive Income
Trust____________________________
Name of Purchaser (Print)
By: /s/ John W. Risner
Name: John W. Risner
Title: Vice President
<PAGE>
[Registration Rights Agreement -- Purchasers' Signature Page]
Accepted and agreed as of the
date first above written:
Van Kampen Merritt
Corporate High Yield Fund________
Name of Purchaser (Print)
By: /s/ Edward C. Wood III
Name: Edward C. Wood III
Title: Treasurer
<PAGE>
<PAGE>
_______________________________________________________________
_______________________________________________________________
PF ACQUISITION CORP.,
as Issuer,
PRO-FAC COOPERATIVE, INC.,
as Guarantor,
and
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
____________________
INDENTURE
Dated as of November 3, 1994
____________________
$160,000,000
12 1/4% Senior Subordinated Notes due 2005
_______________________________________________________________
_______________________________________________________________
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
SS 310(a)(1) ............................ 7.10
(a)(2) ............................ 7.10
(a)(3) ............................ N.A.
(a)(4) ............................ N.A.
(a)(5) ............................ N.A.
(b) ............................... 7.8; 7.10; 12.2
(c) ............................... N.A.
SS 311(a) ............................... 7.7; 7.11
(b) ............................... 7.7; 7.11
(c) ............................... N.A.
SS 312(a) ............................... 2.5
(b) ............................... 12.3
(c) ............................... 12.3
SS 313(a) ............................... 7.6
(b)(1) ............................ 7.6
(b)(2) ............................ 7.6
(c) ............................... 7.6; 12.2
(d) ............................... 7.6
SS 314(a) ............................... 4.6; 4.7; 12.2
(b) ............................... N.A.
(c)(1) ............................ 12.4
(c)(2) ............................ 12.4
(c)(3) ............................ 12.4
(d) ............................... N.A.
(e) ............................... 12.5
(f) ............................... N.A.
SS 315(a) ............................... 7.1(b)
(b) ............................... 7.5; 12.2
(c) ............................... 7.1(a)
(d) ............................... 7.1(c)
(e) ............................... 6.10
SS 316(a) (last sentence) ............... 2.9
(a)(1)(A) ......................... 6.4
(a)(1)(B) ......................... 9.2
(a)(2) ............................ N.A.
(b) ............................... 6.6
(c) ............................... 9.4
SS 317(a)(1) ............................ 6.7
(a)(2) ............................ 6.8
(b) ............................... 2.4
SS 318(a) ............................... 12.1
____________________
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
1.1 Definitions ..................................... 1
1.2 Incorporation by Reference of Trust
Indenture Act ................................. 20
1.3 Rules of Construction ........................... 21
ARTICLE II
THE SECURITIES
2.1 Form and Dating ................................. 21
2.2 Execution and Authentication .................... 22
2.3 Registrar and Paying Agent ...................... 23
2.4 Paying Agent to Hold Money in Trust.............. 23
2.5 Securityholder Lists ............................ 24
2.6 Transfer and Exchange ........................... 24
2.7 Replacement Securities .......................... 30
2.8 Outstanding Securities .......................... 31
2.9 Treasury Securities ............................. 31
2.10 Temporary Securities ............................ 32
2.11 Cancellation .................................... 32
2.12 Defaulted Interest .............................. 33
2.13 CUSIP Number .................................... 33
2.14 Deposit of Moneys ............................... 33
ARTICLE III
REDEMPTION
3.1 Notices to Trustee .............................. 34
3.2 Selection of Securities to Be
Redeemed ...................................... 34
3.3 Notice of Redemption ............................ 34
3.4 Effect of Notice of Redemption .................. 36
3.5 Deposit of Redemption Price ..................... 36
3.6 Securities Redeemed in Part ..................... 36
3.7 Limitations ..................................... 37
ARTICLE IV
COVENANTS
4.1 Payment of Securities ........................... 37
4.2 Maintenance of Office or Agency ................. 37
i
<PAGE>
Section Page
4.3 Corporate Existence ............................. 38
4.4 Payment of Taxes and Other Claims ............... 38
4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with
Law ........................................... 39
4.6 Compliance Certificates ......................... 40
4.7 Reports ......................................... 41
4.8 Limitation on Incurrence of
Indebtedness and Issuance of
Preferred Stock ............................... 41
4.9 Limitation on Liens ............................. 43
4.10 Limitation on Restricted Payments ............... 44
4.11 Disposition of Proceeds of Asset
Sales ......................................... 46
4.12 Transactions with Affiliates .................... 50
4.13 Limitation on Sale and Leaseback
Transactions .................................. 51
4.14 Change of Control ............................... 51
4.15 Limitation on Dividends and Other Pay-
ment Restrictions Affecting Subsid-
iaries ........................................ 53
4.16 Waiver of Stay; Extension of Usury
Laws .......................................... 54
4.17 Subsidiary Guarantees ........................... 54
4.18 Limitation on Certain Transactions
with Pro-Fac .................................. 54
4.19 Limitation on Other Senior Subordi-
nated Indebtedness ............................ 55
4.20 Securities Owned by the Company or an
Affiliate of the Company ...................... 55
ARTICLE V
SUCCESSOR CORPORATION
5.1 When Company May Merge, Etc. .................... 55
5.2 Successor Entity Substituted .................... 57
ARTICLE VI
DEFAULT AND REMEDIES
6.1 Events of Default ............................... 57
6.2 Acceleration .................................... 59
6.3 Other Remedies .................................. 60
6.4 Control by Majority ............................. 60
6.5 Limitation on Suits ............................. 61
6.6 Rights of Holders to Receive Payment ............ 61
6.7 Collection Suit by Trustee ...................... 62
ii
<PAGE>
Section Page
6.8 Trustee May File Proofs of Claim ................ 62
6.9 Priorities ...................................... 63
6.10 Undertaking for Costs ........................... 63
6.11 Willful Default ................................. 64
ARTICLE VII
TRUSTEE
7.1 Duties of Trustee ............................... 64
7.2 Rights of Trustee ............................... 66
7.3 Individual Rights of Trustee .................... 67
7.4 Trustee's Disclaimer ............................ 67
7.5 Notice of Defaults .............................. 67
7.6 Reports by Trustee to Holders ................... 68
7.7 Compensation and Indemnity ...................... 68
7.8 Replacement of Trustee .......................... 69
7.9 Successor Trustee by Merger, Etc. ............... 70
7.10 Eligibility; Disqualification ................... 71
7.11 Preferential Collection of Claims
Against Company ............................... 71
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.1 Termination of Company's Obligations ............ 71
8.2 Legal Defeasance and Covenant
Defeasance..................................... 72
8.3 Application of Trust Money ...................... 76
8.4 Repayment to Company ............................ 76
8.5 Reinstatement ................................... 77
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 Without Consent of Holders ...................... 77
9.2 With Consent of Holders ......................... 78
9.3 Compliance with Trust Indenture Act ............. 80
9.4 Revocation and Effect of Consents ............... 80
9.5 Notation on or Exchange of Securities ........... 80
9.6 Trustee To Sign Amendments, Etc. ................ 81
9.7 Effect on Senior Indebtedness ................... 81
iii
<PAGE>
Section Page
ARTICLE X
SUBORDINATION
10.1 Securities Subordinated to Senior
Indebtedness .................................. 81
10.2 No Payment on Securities in Certain
Circumstances ................................. 82
10.3 Payment Over of Proceeds upon Dissolu-
tion, Etc. .................................... 84
10.4 Payments May Be Paid Prior to Dissolu-
tion .......................................... 85
10.5 Subrogation ..................................... 86
10.6 Obligations of the Company Uncondi-
tional ........................................ 86
10.7 Notice to Trustee ............................... 86
10.8 Reliance on Judicial Order or Certifi-
cate of Liquidating Agent ..................... 87
10.9 Trustee's Relation to Senior Indebted-
ness .......................................... 88
10.10 Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness ................ 88
10.11 Holders Authorize Trustee To Effec-
tuate Subordination of Securities ............. 89
10.12 This Article Ten Not To Prevent Events
of Default .................................... 90
10.13 Trustee's Compensation Not Prejudiced ........... 90
ARTICLE XI
GUARANTEE OF SECURITIES
11.1 Unconditional Guarantee.......................... 90
11.2 Severability..................................... 91
11.3 Release of a Subsidiary Guarantor................ 91
11.4 Limitation of Subsidiary Guarantor's
Liability...................................... 92
11.5 Contribution..................................... 93
11.6 Waiver of Subrogation............................ 93
11.7 Agreement To Subordinate ........................ 94
11.8 Execution of Guarantee........................... 94
iv
<PAGE>
Section Page
ARTICLE XII
MISCELLANEOUS
12.1 Trust Indenture Act Controls .................... 95
12.2 Notices ......................................... 95
12.3 Communications by Holders with Other
Holders ....................................... 97
12.4 Officers' Certificate and Opinion of
Counsel as to Conditions Precedent ............ 97
12.5 Statements Required in Officers' Cer-
tificate and Opinion of Counsel ............... 98
12.6 Rules by Trustee, Paying Agent, Regis-
trar .......................................... 99
12.7 Legal Holidays .................................. 99
12.8 Governing Law ................................... 99
12.9 No Recourse Against Others ...................... 99
12.10 Successors ...................................... 99
12.11 Counterparts .................................... 99
12.12 Severability .................................... 99
12.13 Table of Contents, Headings, Etc. ............... 100
12.14 Certain Registration Rights ..................... 100
SIGNATURES ............................................. 101
EXHIBIT A - Form of Security
EXHIBIT B - Form of Transferor Certificate
EXHIBIT C - Global Security Legend
v
<PAGE>
INDENTURE, dated as of November 3, 1994, among PF
ACQUISITION CORP., a corporation incorporated under the laws of
the State of New York (the 'Company'), PRO-FAC COOPERATIVE,
INC., a cooperative corporation incorporated under the laws of
the State of New York ('Pro-Fac'), and IBJ SCHRODER BANK &
TRUST COMPANY, a New York banking corporation, as trustee (the
'Trustee').
The Company has duly authorized the creation of an
issue of 12 1/4% Senior Subordinated Notes Due 2005 (the 'Securi-
ties'), and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
Pro-Fac has duly authorized its senior subordinated
guarantee of the Securities and to provide therefor Pro-Fac has
duly authorized the execution and delivery of this Indenture
and its Guarantee (as hereinafter defined) of the Securities.
All things necessary have been done to make the Secu-
rities and the Guarantee thereof, when executed by the Company
and Pro-Fac, respectively, and authenticated and delivered
hereunder and duly issued by the Company and Pro-Fac, respec-
tively, the valid obligations of the Company and Pro-Fac and to
make this Indenture a valid agreement of the Company and
Pro-Fac, in accordance with the terms hereof.
The Company and Pro-Fac, as Guarantor, jointly and
severally, and the Trustee hereto agree as follows for the
benefit of each other and for the equal and ratable benefit of
the Holders (as hereinafter defined) of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
'Acquired Debt' means, with respect to any specified
Person: (i) Indebtedness of any other Person existing at the
time such other Person merged with or into or became a Subsid-
iary of such specified Person, including Indebtedness incurred
in connection with, or in contemplation of, such other Person
merging with or into or becoming a Subsidiary of such specified
Person and (ii) Indebtedness encumbering any asset acquired by
such specified Person.
<PAGE>
2
'Acquisition' means (i) the acquisition by the Com-
pany of 90% or more of the outstanding shares of each class of
the capital stock of Curtice-Burns and (ii) the Merger.
'Additional Payment' means additional payments by the
Company to the Holders of Securities in an amount equal to one-
half percent per annum of the principal amount thereof.
'Adjusted Net Assets' has the meaning provided in
Section 11.5.
'Affiliate' of any specified Person means (i) any
other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such speci-
fied Person and (ii) with respect to Pro-Fac and the Company,
any member of Pro-Fac that is a director of Pro-Fac or that has
beneficial ownership of more than 1% of the voting securities
of Pro-Fac. For purposes of this definition, 'control'
(including, with correlative meanings, the terms 'controlling,'
'controlled by' and 'under common control with'), as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; pro-
vided, however, that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control.
'Affiliate Transaction' has the meaning provided in
Section 4.12.
'Agent' means any Registrar, Paying Agent or
co-registrar.
'Asset Sale' has the meaning provided in
Section 4.11(a).
'Asset Sale Offer' has the meaning provided in Sec-
tion 4.11(b).
'Asset Sale Payment Date' means a date chosen by the
Company that is within 60 days of the date that the aggregate
amount of Excess Proceeds first exceeds $10.0 million.
'Attributable Debt' in respect of a sale and lease-
back transaction means, at the time of determination, the pre-
sent value (discounted at the actual rate of interest implicit
in such transaction) of the obligation of the lessee for net
rental payments during the remaining terms of the lease
<PAGE>
3
included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the
option of the lessor, be extended).
'Bankruptcy Law' means Title 11 of the U.S. Code or
any similar federal or state law for the relief of debtors.
'Board of Directors' means with respect to any Per-
son, the Board of Directors of such Person or any committee of
such Board of Directors authorized to act for it hereunder.
'Board Resolution' means with respect to any Person,
a copy of a resolution certified by the Secretary or an Assis-
tant Secretary of such Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
'Book-Entry Security' means a Security represented by
a Global Security and registered in the name of the nominee of
the Depository.
'Borrowing Base' means, as of any date, an amount
equal to the sum of (i) 80% of the face amount of all accounts
receivable owned by the Company and its Subsidiaries as of such
date and (ii) 50% of the book value of all inventory owned by
the Company and its Subsidiaries as of such date (calculated in
each case in accordance with the New Credit Agreement). To the
extent that information is not available as to the amount of
accounts receivable or inventory as of a specific date, the
Company may utilize the most recent available information for
purposes of calculating the Borrowing Base.
'Business Day' means any day except a Saturday, a
Sunday or any day on which banking institutions in New York,
New York are required or authorized by law or other governmen-
tal action to be closed.
'Capital Lease Obligation' means, at the time any
determination thereof is to be made, the amount of the lia-
bility in respect of a capital lease that would at such time be
required to be capitalized on the balance sheet in accordance
with GAAP.
'Capital Stock' means any and all shares, interests,
participations, rights or other equivalents (however desig-
nated) of corporate stock, including, without limitation, with
respect to partnerships, partnership interests (whether general
<PAGE>
4
or limited) and any other interest or participation that con-
fers on a Person the right to receive a share of the profits
and losses of, or distributions of assets of, such partnership.
'Cash Equivalents' means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or
instrumentality thereof having remaining maturities of not more
than 12 months from the date of acquisition and rated at least
'A' or the equivalent by either Moody's Investors Service, Inc.
or Standard & Poor's Corporation, (iii) certificates of deposit
and Eurodollar time deposits with remaining maturities of not
more than 12 months from the date of acquisition, bankers'
acceptances with maturities not more than 12 months and over-
night bank deposits, in each case with any lender party to the
New Credit Agreement or with any domestic commercial bank hav-
ing capital and surplus in excess of $250 million and a Keefe
Bank Watch Rating of B or better, (iv) repurchase Obligations
with a term of not more than 30 days for underlying securities
of the types described in clauses (ii) and (iii) entered into
with any financial institution meeting the qualifications spec-
ified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Moody's Investors Service, Inc.
or Standard & Poor's Corporation and in each case maturing not
more than 12 months after the date of acquisition, (vi) any
security with a remaining maturity of not more than 12 months
from the date of acquisition backed by standby or direct pay
letters of credit issued by any bank satisfying the require-
ments of clause (iii) above, and (vii) any money-market fund
sponsored by any registered broker-dealer or mutual fund dis-
tributor that invests solely in instruments of the types set
forth above.
'Certificated Security' has the meaning provided in
Section 2.1.
'Change of Control' means the occurrence of any of
the following, other than in connection with the Acquisition:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of Pro-Fac's or the
Company's assets to any Person or group (as such term is used
in Section 13(d)(3) of the Exchange Act), (ii) the consummation
of any transaction the result of which is that any Person or
group (as such term is used in Section 13(d)(3) of the Exchange
Act) owns, directly or indirectly, (A) more than 50% of the
voting power of the voting stock of Pro-Fac or the Company or
(B) more than 30% of the voting power of the voting stock of
the Company if Pro-Fac owns, directly or indirectly, a lesser
<PAGE>
5
percentage than such Person or group of the voting power of the
voting stock of the Company, (iii) the first date on which any
Person or group (as defined above) shall have elected, or
caused to be elected, a sufficient number of its or their nomi-
nees to the Board of Directors of Pro-Fac or the Company such
that the nominees so elected (regardless of when elected) shall
collectively constitute a majority of the Board of Directors of
Pro-Fac or the Company, as the case may be, or (iv) for a
period of 120 consecutive days, the number of Disinterested
Directors on the Board of Directors of the Company being less
than the greater of (A) two and (B) the number of directors of
the Company who are Pro-Fac Directors. For purposes of this
definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring voting stock of
Pro-Fac or the Company shall be deemed to be a transfer of such
portion of the voting stock owned by such entity as corresponds
to the portion of the equity of such entity that has been so
transferred.
'Change of Control Offer' has the meaning provided in
Section 4.14.
'Change of Control Payment' has the meaning provided
in Section 4.14.
'Change of Control Payment Date' has the meaning pro-
vided in Section 4.14.
'Commercial Market Value' means Commercial Market
Value determined in accordance with the Pro-Fac Marketing
Agreement.
'Company' means the party named as such in this
Indenture until a successor replaces it in accordance with the
provisions of this Indenture and, thereafter, means the
successor.
'Consolidated Cash Flow' means, with respect to any
Person for any period, the Consolidated Net Income of such Per-
son for such period plus (i) an amount equal to the noncash
portion of any extraordinary loss and any loss realized in con-
nection with an Asset Sale (to the extent such losses were
deducted in computing such Consolidated Net Income), plus
(ii) the Consolidated Income Tax Expense of such Person for
such period (other than income tax expense (either positive or
negative) attributable to extraordinary gains or losses or
gains or losses on Asset Sales), plus (iii) in the case of the
Company, the Pro-Fac share of earnings or loss as determined in
<PAGE>
6
accordance with the Pro-Fac Marketing Agreement, plus (iv) the
Consolidated Interest Expense of such Person for such period,
plus (v) depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash charges
(excluding any such non-cash charge that results in an accrual
of a reserve for cash charges in any future period) of such
Person for such period to the extent such depreciation, amorti-
zation and other non-cash charges were deducted in computing
such Consolidated Net Income, in each case, on a consolidated
basis and determined in accordance with GAAP.
'Consolidated Income Tax Expense' means, with respect
to any Person for any period, the income tax expense of such
Person and its Subsidiaries for such period that was deducted
in computing the Consolidated Net Income of such Person for
such period, determined on a consolidated basis in accordance
with GAAP.
'Consolidated Interest Expense' means, without dupli-
cation, with respect to any Person for any period, the sum of
the interest expense on all Indebtedness of such Person and its
Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP and including, without limitation
(i) imputed interest on Capital Lease Obligations and Attribut-
able Debt, (ii) commissions, discounts and other fees and
charges owed with respect to letters of credit securing finan-
cial Obligations and bankers' acceptance financing, (iii) the
net costs associated with Hedging Obligations,
(iv) amortization of financing fees and expenses, (v) the
interest portion of any deferred payment Obligations,
(vi) amortization of debt discount or premium, if any,
(vii) all other non-cash interest expense, (viii) capitalized
interest, (ix) all interest payable with respect to discontin-
ued operations, and (x) all interest on any Indebtedness of any
other Person guaranteed by the referent Person or any of its
Subsidiaries to the extent paid by the referent Person or any
such Subsidiary.
'Consolidated Net Income' means, with respect to any
Person for any period, the aggregate of the Net Income of such
Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided, that
(i) the Net Income of any Person that is not a Subsidiary or
that is accounted for by the equity method of accounting shall
be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Subsid-
iary thereof, (ii) the Net Income of any Subsidiary shall be
excluded to the extent that the declaration or payment of
<PAGE>
7
dividends or similar distributions by that Subsidiary of such
Net Income is not at the date of determination permitted with-
out any governmental approval (which has not been obtained) or
directly or indirectly, by operation of the terms of its char-
ter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded
and (iv) the cumulative effect of a change in accounting prin-
ciples shall be excluded; provided, that in calculating the
Consolidated Net Income for the Company, any charges recognized
in connection with the Company's elimination of its Nalley's
U.S. Chips and Snacks line of business or the change of control
of the Company, in each case subsequent to June 25, 1994 and
net of any related tax benefits, shall be excluded.
'Consolidated Net Worth' means, with respect to any
Person as of any date, the sum of (i) the consolidated equity
of the common stockholders of such Person and its consolidated
Subsidiaries as of such date plus (ii) the respective amounts
reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disquali-
fied Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only
out of net earnings in respect of the year of such declaration
and payment, but only to the extent of any cash received by
such Person upon issuance of such preferred stock determined in
accordance with GAAP, less all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of
tangible assets of a going concern business made within 12
months after the acquisition of such business) subsequent to
the date of this Indenture in the book value of any asset owned
by such Person or a consolidated Subsidiary of such Person.
'Consolidated Tangible Assets' means with respect to
any Person as of any date, the total assets of such Person and
its Subsidiaries (excluding any assets that would be classified
as 'intangible assets' under GAAP) on a consolidated basis at
such date, as determined in accordance with GAAP, less all
write-ups subsequent to the date of this Indenture in the book
value of any asset owned by such Person or any of its Subsid-
iaries (except to the extent that any such write-up was
required by GAAP as a result of an acquisition by such Person
or any such Subsidiary accounted for as a purchase.
<PAGE>
8
'Consummate' has the meaning provided in the Regis-
tration Rights Agreement. 'Consummated' and 'Consummation'
have correlative meanings.
'Curtice-Burns' means Curtice-Burns Foods, Inc., a
New York corporation, and the survivor of the Merger.
'Custodian' has the meaning provided in Section
6.1(b).
'Default' means any event that is or with the passage
of time or the giving of notice or both would be an Event of
Default.
'Depository' means, with respect to the Securities
issued in the form of one or more Book-Entry Securities, The
Depository Trust Company or another person designated as Depos-
itory by the Company, which must be a clearing agency regis-
tered under the Exchange Act.
'Disinterested Directors' means directors of the Com-
pany who are not employees, shareholders (at the time of becom-
ing directors) or otherwise Affiliates (other than by reason of
being a director of the Company) of either Pro-Fac or the Com-
pany.
'Disqualified Stock' means any Capital Stock and all
warrants, options and other rights to acquire Capital Stock
which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund Obligation or otherwise, or redeem-
able at the option of the holder thereof, in whole or in part,
on or prior to a date that is one year after the date on which
the Securities mature.
'Equity Interests' means Capital Stock and all war-
rants, options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into or
exchangeable for Capital Stock).
'Event of Default' has the meaning provided in Sec-
tion 6.1(a).
'Excess Proceeds' has the meaning provided in Section
4.11(b).
<PAGE>
9
'Exchange Act' means the Securities Exchange Act of
1934, as amended.
'Exchange Offer' has the meaning specified in the
Registration Rights Agreement.
'Fair value' or 'fair market value' means, with
respect to any asset or property, the price which could be
negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined by the
Board of Directors acting in good faith and shall be evidenced
by a Board Resolution delivered to the Trustee.
'Fixed Charge Coverage Ratio' means, with respect to
any Person for any period, the ratio of the Consolidated Cash
Flow of such Person for such period (exclusive of amounts
attributable to discontinued operations, as determined in
accordance with GAAP, or operations and businesses disposed of
prior to the Calculation Date (as defined below)) to the Fixed
Charges of such Person for such period (exclusive of amounts
attributable to discontinued operations, as determined in
accordance with GAAP, or operations and businesses disposed of
prior to the Calculation Date, but only to the extent that the
Obligations giving rise to such Fixed Charges would no longer
be Obligations contributing to such Person's Fixed Charges sub-
sequent to the Calculation Date). In the event that the Com-
pany or any of its Subsidiaries incurs, assumes, guarantees or
redeems any Indebtedness (other than revolving credit borrow-
ings) or Attributable Debt or issues preferred stock subsequent
to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the 'Calculation Date'), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, guarantee or repayment
of Indebtedness or Attributable Debt, or such issuance or
redemption of preferred stock, as if the same had occurred at
the beginning of the applicable four-quarter reference period.
For purposes of making the computation referred to above,
acquisitions that have been made by the referent Person or any
of its Subsidiaries, including all mergers and consolidations,
during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall
be deemed to have occurred on the first day of the four-quarter
reference period; provided, however, that if any such calcula-
tion requires the use of any quarter prior to the date of this
<PAGE>
10
Indenture, such calculation for such quarter shall be made on a
pro forma basis giving effect to the Acquisition, including the
financing thereof, as if the same had occurred at the beginning
of such four-quarter period.
'Fixed Charges' means, with respect to any Person for
any period, the sum of (a) the Consolidated Interest Expense of
such Person and its Subsidiaries for such period, and (b) the
product of (i) all cash dividend payments (and non-cash divi-
dend payments in the case of a Person that is a Subsidiary) on
any series of preferred stock of such Person or a Subsidiary of
such Person, times (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP.
'Funding Guarantor' has the meaning provided in Sec-
tion 11.5.
'GAAP' means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the date of
this Indenture.
'Global Security' means a permanent global security
in registered form, substantially in the form set forth in
Exhibit A and containing the legend set forth in Exhibit C,
deposited with the Trustee, as custodian for the Depository,
duly executed by the Company and authenticated by the Trustee
as provided herein.
'Guarantee' has the meaning provided in Section 11.1.
'Guarantor' means Pro-Fac, any Subsidiary Guarantor
and any successor to or assignee of all or substantially all of
the assets of any of them pursuant to Section 5.2.
'Hedging Obligations' means, with respect to any Per-
son, the Obligations of such Person under (i) interest rate
swap agreements, interest rate cap agreements and interest rate
collar agreements and (ii) other agreements or arrangements
designed to protect such Person against fluctuations in inter-
est rates or the value of foreign currencies.
<PAGE>
11
'Holder' or 'Securityholder' means the Person in
whose name a Security is registered on the Registrar's books.
'Indebtedness' means, with respect to any Person,
(i) any indebtedness of such Person (including Acquired Debt
and Attributable Debt), whether or not contingent, in respect
of borrowed money or evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing Capital Lease
Obligations or the balance deferred and unpaid of the purchase
price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any such indebtedness
(other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person pre-
pared in accordance with GAAP, (ii) all indebtedness of others
secured by a Lien on any asset of such Person whether or not
such indebtedness is assumed by such Person, and (iii) to the
extent not otherwise included, the guarantee of any indebted-
ness of any other Person by such Person.
'Indenture' means this Indenture as amended or sup-
plemented from time to time pursuant to the terms hereof.
'Institutional Accredited Investor' means an institu-
tional 'accredited investor' within the meaning of
Rule 501(a)(1), (2), (3) and (7) under the Securities Act.
'interest,' when used with respect to any Security,
means the amount of all interest accruing on such Security,
including all interest accruing subsequent to the occurrence of
any events specified in Sections 6.1(a)(ix) and (x) or which
would have accrued but for any such event.
'Interest Payment Date,' when used with respect to
any Security, means the stated maturity of an installment of
interest specified in such Security.
'Investments' means, with respect to any Person, all
(i) investments by such Person in other Persons (including
Affiliates) in the forms of loans (including guarantees),
advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the
ordinary course of business), (ii) purchases or other acquisi-
tions for consideration of Indebtedness, (iii) Equity Interests
or other securities and (iv) other items that are or would be
classified as investments on a balance sheet prepared in accor-
dance with GAAP.
<PAGE>
12
'Legal Holiday' means any day other than a Business
Day.
'Letter of Credit Facility' means that portion of the
New Credit Agreement that provides for the issuance of letters
of credit, with an aggregate face amount not in excess of
$10.0 million at any time outstanding, naming the Company as
the account party.
'Lien' means, with respect to any asset, any mort-
gage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agree-
ment to give any financing statement under the Uniform Commer-
cial Code (or equivalent statutes) of any jurisdiction).
'Liquidated Damages' means amounts payable pursuant
to Section 5 of the Registration Rights Agreement.
'LLC Restructuring' has the meaning provided in
Section 5.1.
'Maturity Date,' when used with respect to any Secu-
rity, means the date specified in such Security as the fixed
date on which the final installment of principal of such Secu-
rity is due and payable (in the absence of any acceleration
thereof pursuant to Section 6.2).
'Merger' means the merger under New York law of the
Company with and into Curtice-Burns, with Curtice-Burns being
the surviving entity.
'Net Income' means, with respect to any Person, the
net income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of preferred stock
dividends, excluding, however, (i) any gain (but not loss),
together with any related provision for taxes on such gain (but
not loss), realized in connection with (a) any Asset Sale
(including, without limitation, dispositions pursuant to sale
and leaseback transactions), or (b) the disposition of any
securities or the extinguishment of any Indebtedness of such
Person or any of its Subsidiaries, and (ii) any extraordinary
gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).
<PAGE>
13
'Net Proceeds' means the aggregate cash proceeds
received by the Company or any of its Subsidiaries in respect
of any Asset Sale, net of the direct costs relating to such
Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or
payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment
of Indebtedness (other than Indebtedness that is by its terms
subordinated to the Securities) upon sale of the asset or
assets that are the subject of such Asset Sale, and any reserve
for adjustment in respect of the sale price of such asset or
assets.
'New Credit Agreement' means the Term Loan, Term Loan
Facility and Seasonal Loan Agreement by and among the Company,
Curtice-Burns and Springfield Bank for Cooperatives in the form
existing as of the Closing Date, including any related notes,
guarantees, collateral documents, instruments and agreements
executed in connection therewith, in each case as amended, mod-
ified, renewed, restated, refunded, replaced or refinanced in
whole or in part from time to time.
'Non-payment Default' has the meaning provided in
Section 10.2(b).
'Obligations' means any principal, interest, penal-
ties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
'Officer' means the Chairman, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Sec-
retary or the Controller of the Company.
'Officers' Certificate' means a certificate reason-
ably satisfactory to the Trustee and in compliance with the
terms of this Indenture signed by two Officers or by an Officer
and an Assistant Treasurer or Assistant Secretary of the
Company.
'Opinion of Counsel' means a written opinion reason-
ably satisfactory to the Trustee and in compliance with the
terms of this Indenture from legal counsel who is reasonably
acceptable to the Trustee, which may include counsel to the
Company, any Subsidiary of the Company, Pro-Fac or the Trustee.
<PAGE>
14
'Participating Guarantor' has the meaning provided in
Section 11.4.
'Participating Indebtedness' has the meaning provided
in Section 11.4.
'Paying Agent' has the meaning provided in Section
2.3.
'Payment Blockage Notice' has the meaning provided in
Section 10.2(b).
'Payment Blockage Period' has the meaning provided in
Section 10.2(b).
'Payment Default' has the meaning provided in
Section 10.2(a).
'Permitted Asset Sale Consideration' means securities
and other non-cash consideration acquired by the Company or any
of its Subsidiaries as consideration for the sale of assets or
Equity Interests in an Asset Sale having an aggregate fair mar-
ket value (measured as of the date of acquisition) that does
not exceed 5% of the Consolidated Tangible Assets of the Com-
pany and its Subsidiaries as of the most recently ended fiscal
quarter for which financial statements are available immedi-
ately preceding the date such consideration is acquired. The
fair market value of Permitted Asset Sale Consideration shall
be determined in good faith by the Company's Board of Directors
on the date on which it is acquired and no adjustments shall be
made for subsequent changes in fair market value except that
the amount deemed to be outstanding shall be reduced (but not
below zero) to the extent of any cash received by the Company
or a Subsidiary upon disposition of such Permitted Asset Sale
Consideration.
'Permitted Investments' means (i) any Investments in
the Company or in a Subsidiary of the Company; (ii) any Invest-
ments in Cash Equivalents; (iii) Investments by the Company or
any Subsidiary in a Person, if as a result of such Investment
(a) such Person becomes a Subsidiary of the Company that is
engaged in the same or a similar line of business to that which
the Company and its Subsidiaries were engaged in on the date of
the Investment or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a
Subsidiary of the Company that is engaged in the same or a
similar line of business to that which the Company and its
<PAGE>
15
Subsidiaries were engaged in on the date of the Investment;
(iv) Permitted Asset Sale Consideration; and (v) loans by the
Company or any of its Subsidiaries to employees of the Company
or any of its Subsidiaries the proceeds of which are applied to
purchase Capital Stock of the Company; (vi) demand loans for
working capital purposes from the Company to Pro-Fac, not
exceeding $10.0 million at any time outstanding, which will be
reduced to zero for a period of not less than 15 consecutive
days in each fiscal year; and (vii) any Investment in Spring-
field Bank for Cooperatives required under the New Credit
Agreement as in effect on the date hereof.
'Permitted Liens' means (i) Liens securing Indebted-
ness under the New Credit Agreement that is permitted to be
incurred pursuant to clauses (i) through (iv) of
Section 4.8(b); (ii) Liens securing intercompany notes on
assets that are required to be pledged to secure borrowings
under the New Credit Agreement; (iii) Liens in favor of the
Company; (iv) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business; (v) Liens on assets of the Company and its Subsidiar-
ies to secure Capital Lease Obligations, purchase money obliga-
tions and industrial revenue bonds or similar securities per-
mitted to be incurred pursuant to Section 4.8, provided that
such Liens cover only the assets acquired with the proceeds of
such Capital Lease Obligations, purchase money obligations or
industrial revenue bonds or similar securities, as the case may
be; (vi) Liens existing on the date of this Indenture;
(vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested
in good faith by appropriate proceedings promptly instituted
and diligently prosecuted; provided that any reserve or other
appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (viii) Liens created or
pledges and deposits in connection with workers' compensation,
unemployment insurance and other social security benefits
incurred by the Company or any Subsidiary of the Company;
(ix) Liens imposed by law, including, without limitation,
mechanics', carriers', warehousemen's, materialman's, suppli-
ers' and vendors' Liens created by the Company or any Subsid-
iary in the ordinary course of business; (x) zoning restric-
tions, easements, licenses, covenants, reservations, restric-
tions on the use of real property or minor irregularities of
title incident thereto which do not, in the aggregate, have a
material adverse effect on the operation of the business of the
Company and its Subsidiaries taken as a whole; (xi) Liens
imposed pursuant to condemnation or eminent domain or
<PAGE>
16
substantially similar proceedings or in connection with compli-
ance with environmental laws or regulations; and (xii) Liens
incurred in the ordinary course of business of the Company or
any Subsidiary of the Company with respect to Obligations that
do not exceed $2.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit
in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business
by the Company or such Subsidiary.
'Permitted Refinancing Indebtedness' means any
Indebtedness of the Company issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew,
replace, defease or refund, other Indebtedness of the Company;
provided that: (i) the principal amount and premium, if any,
of such Indebtedness does not exceed the principal amount of
the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of expenses incurred in
connection therewith); (ii) such Indebtedness has a Weighted
Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iii)
such Indebtedness is subordinated in right of payment to the
Securities on terms at least as favorable to the Holders of
Securities as those, if any, contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
'Person' means any individual, corporation, partner-
ship, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
'principal' of a debt security means the principal
amount of the security plus, when appropriate, the premium, if
any, on the security.
'Pro-Fac' means Pro-Fac Cooperative, Inc., a New York
cooperative corporation.
'Pro-Fac Director' means any Person who, as a direc-
tor, officer or other designee of Pro-Fac, serves as a director
of the Company.
'Pro-Fac Marketing Agreement' means the agreement
between Pro-Fac and the Company in the form existing as of the
<PAGE>
17
date of this Indenture, as such agreement may be amended,
restated, renewed, extended or replaced in accordance with this
Indenture.
'Qualified Institutional Buyer' or 'QIB' shall have
the meaning specified in Rule 144A under the Securities Act.
'Redemption Date' means, with respect to any Secu-
rity, the Maturity Date of such Security or the date on which
such Security is to be redeemed by the Company pursuant to the
terms of the Securities.
'Registrar' has the meaning provided in Section 2.3.
'Registration Rights Agreement' means the Registra-
tion Rights Agreement dated as of November 3, 1994 by and among
the Company, Pro-Fac, the purchasers who are signatories
thereto and, subsequent to the Merger, each Subsidiary
Guarantor.
'Restricted Investment' means an Investment other
than a Permitted Investment.
'Restricted Payment' has the meaning provided in
Section 4.10.
'SEC' means the Securities and Exchange Commission.
'Seasonal Working Capital Facility' means that por-
tion of the New Credit Agreement that provides for revolving
Indebtedness of the Company, the proceeds of which are to be
used to finance the Company's operations.
'Securities' means the 12 1/4% Senior Subordinated Notes
Due 2005 issued, authenticated and delivered under this Inden-
ture, as amended or supplemented from time to time pursuant to
the terms of this Indenture.
'Securities Act' means the Securities Act of 1933, as
amended.
'Securityholder' or 'Holder' means the Person in
whose name a Security is registered on the Registrar's books.
'Senior Indebtedness' means all Indebtedness and
other Obligations specified below payable directly or indi-
rectly by the Company or any Guarantor, as the case may be,
whether outstanding on the date of this Indenture or thereafter
<PAGE>
18
created, incurred or assumed by the Company or such Guarantor:
(i) the principal of and interest on and all other Obligations
related to the New Credit Agreement (including without limita-
tion all loans, letters of credit and unpaid drawings with
respect thereto and other extensions of credit under the New
Credit Agreement, and all expenses, fees, reimbursements,
indemnities and other amounts owing pursuant to the New Credit
Agreement), (ii) amounts payable in respect of any Hedging
Obligations, (iii) all Indebtedness not prohibited by Section
4.8 hereof that is not expressly pari passu with, or subordi-
nated to, the Securities or the Guarantees, as the case may be,
(iv) all Indebtedness represented by industrial revenue bonds
and all Capital Lease Obligations, in each case, outstanding on
the date of this Indenture, (v) all amounts payable to senior
officers and directors of Curtice-Burns in connection with the
Acquisition and (vi) all permitted renewals, extensions,
refundings or refinancings thereof permitted under this Inden-
ture. Notwithstanding anything to the contrary in the fore-
going, Senior Indebtedness shall not include (i) any Indebted-
ness which by the express terms of the agreement or instrument
creating, evidencing or governing the same is junior or subor-
dinate in right of payment to any item of Senior Indebtedness
(it being understood that any agreements among creditors, as to
their priority positions with respect to collateral, shall not
be included as Indebtedness for purposes of this clause (i)),
(ii) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of
business or (iii) Indebtedness incurred (but only to the extent
incurred) in violation of this Indenture as in effect at the
time of the respective incurrence, provided that any Lender
under the New Credit Agreement with respect to such Indebted-
ness shall be permitted to rely conclusively on an Officers'
Certificate as to the permissibility of such Indebtedness under
this Indenture.
'Senior Representative' means, with respect to any
Senior Indebtedness, the indenture trustee or other trustee or
agent for such Senior Indebtedness.
'Subsidiary' means, with respect to any Person, any
corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indi-
rectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof.
<PAGE>
19
'Subsidiary Guarantor' means each Subsidiary of the
Company which, pursuant to Section 4.17 of this Indenture, exe-
cutes a supplemental indenture in which such Subsidiary agrees
to be bound by Article Eleven hereof and the other provisions
of this Indenture applicable to Subsidiary Guarantors, unless
and until released pursuant to Section 11.3 hereof.
'Term Loan Facility' means that portion of the New
Credit Agreement that provides for up to $120.0 million of term
Indebtedness of the Company, as reduced by any mandatory com-
mitment reductions pursuant to the terms of the New Credit
Agreement as in effect on the date of this Indenture, at least
$90.0 million of the proceeds of which are to be used to
finance in part the Acquisition.
'Term Loans' means that portion of the New Credit
Agreement that provides for $80.0 million of term Indebtedness
of the Company, as reduced by any mandatory commitment reduc-
tions pursuant to the terms of the New Credit Agreement as in
effect on the date of this Indenture.
'TIA' means the Trust Indenture Act of 1939 (15 U.S.
Code SS 77aaa-77bbbb) as in effect on the date of this
Indenture.
'Transfer Restricted Security' means each Security,
until the earliest to occur of (a) the date on which such Secu-
rity is exchanged in the Exchange Offer as defined in the Reg-
istration Rights Agreement and entitled to be resold to the
public by the Holder of such Security without complying with
the prospectus delivery requirements of the Securities Act,
(b) the date on which such Security has been effectively regis-
tered under the Securities Act and disposed of in accordance
with a shelf registration statement filed pursuant to the Reg-
istration Rights Agreement and (c) the date on which such Secu-
rity is distributed to the public pursuant to a transaction
satisfying the conditions for an exemption from registration in
accordance with Rule 144 under the Securities Act or by a
broker-dealer pursuant to the Registration Rights Agreement.
'Transferor Certificate' means a certificate substan-
tially in the form of Exhibit B hereto.
'Trustee' means the party named as such in this
Indenture until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means
such successor serving hereunder.
<PAGE>
20
'Trust Officer' means an officer or assistant officer
of the Trustee assigned to the Corporate Trust Administration
Department or similar department performing corporate trust
work, or any successor to such department or, in the case of a
successor trustee, an officer assigned to the department, divi-
sion or group performing the corporate trust work of such
successor.
'U.S. Government Obligations' means direct non-call-
able obligations of, or non-callable obligations guaranteed by,
the United States of America for the payment of which guarantee
or obligation the full faith and credit of the United States is
pledged.
'Weighted Average Life to Maturity' means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that shall elapse between such date and the making
of such payment, by (ii) the then outstanding principal amount
of such Indebtedness.
SECTION 1.2 Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision shall be deemed incorporated by reference in
and made a part of this Indenture. The following TIA terms
used in this Indenture have the following meanings:
(a) 'Commission' means the SEC;
(b) 'indenture securities' means the Securities;
(c) 'indenture security holder' means a
Securityholder or a Holder;
(d) 'indenture to be qualified' means this
Indenture;
(e) 'indenture trustee' or 'institutional trustee'
means the Trustee; and
(f) 'obligor' on the Securities means the Company or
any other obligor on the Securities.
<PAGE>
21
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule under the TIA and not otherwise defined
herein have the meanings so assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) 'or' is not exclusive;
(c) words in the singular include the plural, and
words in the plural include the singular;
(d) 'herein,' 'hereof' and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision; and
(e) unless otherwise specified herein, all account-
ing terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be
prepared in accordance with GAAP as in effect from time to
time, applied on a basis consistent with the most recent
audited consolidated financial statements of the Company.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Securities and the Trustee's certificate of
authentication with respect thereto shall be substantially in
the form set forth in Exhibit A annexed hereto, which is hereby
incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements
required by law, rule, usage or agreement to which the Company
is subject. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the
Securities shall constitute, and are expressly made, a part of
this Indenture.
Securities originally issued to or transferred to
Institutional Accredited Investors that are Qualified Institu-
tional Buyers shall be issued initially in the form of one or
<PAGE>
22
more Global Securities. The aggregate principal amount of the
Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian
for the Depository, as hereinafter provided.
Securities originally issued to or transferred to
Institutional Accredited Investors that are not Qualified
Institutional Buyers shall be issued in the form of permanent
certificated Securities in registered form, in substantially
the form set forth in Exhibit A (a 'Certificated Security').
SECTION 2.2 Execution and Authentication.
Two Officers shall execute the Securities on behalf
of the Company by either manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or repro-
duced on the Securities.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates
the Security or at any time thereafter, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Security. Such signature shall be con-
clusive evidence that the Security has been authenticated under
this Indenture.
The Trustee shall authenticate Securities for origi-
nal issue in an aggregate principal amount not to exceed
$160,000,000, upon an Officers' Certificate of the Company
signed by two Officers directing the Trustee to authenticate
the Securities and certifying that all conditions precedent to
the issuance of the Securities contained herein have been com-
plied with. The aggregate principal amount of Securities out-
standing at any time may not exceed $160,000,000 except as pro-
vided in Section 2.7.
The Trustee may appoint an authenticating agent
acceptable to and at the expense of the Company to authenticate
Securities. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. Such authenticating agent shall have the same authenti-
cating rights and duties as the Trustee in any dealings hereun-
der with the Company or with any Affiliate of the Company.
<PAGE>
23
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency (which
shall be located in the Borough of Manhattan in the City of New
York, State of New York) where Securities may be presented for
registration of transfer or for exchange (the 'Registrar'), an
office or agency (which shall be located in the Borough of Man-
hattan, City of New York, State of New York) where Securities
may be presented for payment (the 'Paying Agent') and an office
or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served.
The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The
term 'Paying Agent' includes any additional paying agent. Nei-
ther the Company nor any Affiliate of the Company may act as
Paying Agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name
and address of any such Agent. If the Company fails to main-
tain a Registrar or Paying Agent, or fails to give the fore-
going notice, the Trustee shall act as such and shall be enti-
tled to appropriate compensation in accordance with
Section 7.7.
The Company initially appoints the Trustee as Regis-
trar and Paying Agent in connection with the Securities. The
Trustee shall at all times act as Paying Agent for purposes of
Sections 4.11 and 4.14.
SECTION 2.4 Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit
of the Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest and,
if applicable, Additional Payments and Liquidated Damages on
the Securities, and the Company and the Paying Agent shall
notify the Trustee of any default by the Company in making any
such payment. Money held in trust by the Paying Agent need not
be segregated except as required by law and in no event shall
the Paying Agent be liable for any interest on any money
received by it hereunder. The Company at any time may require
the Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time
<PAGE>
24
during the continuance of any Event of Default specified in
Section 6.1(a)(i) or (ii), upon written request to the Paying
Agent, require such Paying Agent to pay forthwith all money so
held by it to the Trustee and to account for any funds dis-
bursed. Upon making such payment, the Paying Agent shall have
no further liability for the money delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of the Securityholders. If the Trustee
is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee at least five Business Days
before each Interest Payment Date, and at such other times as
the Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the names
and addresses of the Securityholders.
SECTION 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Certificated Securi-
ties. When Certificated Securities are presented by a Holder
to the Registrar with a request:
(x) to register the transfer of the Certificated
Securities; or
(y) to exchange such Certificated Securities for an
equal principal amount of Certificated Securities of other
authorized denominations;
the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met;
provided, however, that the Certificated Securities presented
or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a writ-
ten instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney,
duly authorized in writing; and
(ii) in the case of a Certificated Security that is a
Transfer Restricted Security such request shall be accom-
panied by the following additional information and docu-
ments, as applicable:
<PAGE>
25
(A) if such Transfer Restricted Security is
being delivered to the Registrar by a Holder for reg-
istration in the name of such Holder, without trans-
fer, a Transferor Certificate to that effect from
such Holder; or
(B) if such Transfer Restricted Security is
being transferred to a Qualified Institutional Buyer
in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 under the Secu-
rities Act or pursuant to an effective registration
statement under the Securities Act, a Transferor Cer-
tificate to that effect from such Holder; or
(C) if such Transfer Restricted Security is
being transferred in reliance on another exemption
from the registration requirements of the Securities
Act, a Transferor Certificate to that effect from
such Holder and an opinion of counsel from such
Holder or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) Transfer of a Certificated Security for a Bene-
ficial Interest in a Global Security. A Certificated Security
may not be exchanged for a beneficial interest in a Global
Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a Certificated Security,
duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
(i) if such Certificated Security is a Transfer
Restricted Security, a Transferor Certificate from the
Holder thereof to the effect that such Certificated Secu-
rity is being transferred by such Holder to a Qualified
Institutional Buyer in accordance with Rule 144A under the
Securities Act; and
(ii) whether or not such Certificated Security is a
Transfer Restricted Security, written instructions from
the Holder thereof directing the Trustee to make, or to
direct the Depository to make, an endorsement on the Glo-
bal Security to reflect an increase in the aggregate prin-
cipal amount of the Securities represented by the Global
Security,
<PAGE>
26
in which case the Trustee shall cancel such Certificated Secu-
rity and cause, or direct the Depository to cause, the aggre-
gate principal amount of Securities represented by the Global
Security to be increased accordingly. If no Global Securities
are then outstanding, the Company shall issue and, upon receipt
of an authentication order in accordance with Section 2.2, the
Trustee shall authenticate a new Global Security in the appro-
priate principal amount.
(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial inter-
ests therein shall be effected through the Depository, in
accordance with this Indenture, which shall include restric-
tions on transfer comparable to those set forth herein to the
extent required by the Securities Act and the procedures of the
Depository therefor.
(d) Transfer of a Beneficial Interest in a
Global Security for a Certificated Security.
(i) Any Person having a beneficial interest in a
Global Security may upon request exchange such beneficial
interest for a Certificated Security. Upon receipt by the
Trustee of written instructions or such other form of
instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Security, and, in the case
of a Transfer Restricted Security, the following addi-
tional information and documents (all of which may be sub-
mitted by facsimile):
(A) if such beneficial interest is being trans-
ferred to the Person designated by the Depository as
being the beneficial owner, a Transferor Certificate
to that effect from such Person; or
(B) if such beneficial interest is being trans-
ferred to a Qualified Institutional Buyer in accor-
dance with Rule 144A under the Securities Act or pur-
suant to an exemption from registration in accordance
with Rule 144 or Rule 904 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a Transferor Certificate to that
effect from the transferor; or
(C) if such beneficial interest is being trans-
ferred in reliance on another exemption from the reg-
istration requirements of the Securities Act, a
<PAGE>
27
Transferor Certificate to that effect from the trans-
feror and an opinion of counsel from the transferee
or transferor reasonably acceptable to the Company
and to the Registrar to the effect that such transfer
is in compliance with the Securities Act,
in which case the Trustee shall cause the aggregate prin-
cipal amount of Global Securities to be reduced accord-
ingly and, following such reduction, the Company shall
execute and, upon receipt of an authentication order in
accordance with Section 2.2, the Trustee shall authenti-
cate and deliver to the transferee a Certificated Security
in the appropriate principal amount.
(ii) Certificated Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this
Section 2.6(d) shall be registered in such names and in
such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Certificated Securities to the Persons
in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in subsection
(f) of this Section 2.6), a Global Security may not be trans-
ferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such
successor Depository.
(f) Authentication of Certificated Securities in
Absence of Depository. If at any time:
(i) the Depository notifies the Company that the
Depository is unwilling or unable to continue as Deposi-
tory for the Global Securities and a successor Depository
for the Global Securities is not appointed by the Company
within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the issu-
ance of Certificated Securities under this Indenture,
then the Company shall execute, and the Trustee, upon receipt
of an Officers' Certificate requesting the authentication and
<PAGE>
28
delivery of Certificated Securities, shall authenticate and
deliver, Certificated Securities in an aggregate principal
amount equal to the principal amount of the Global Securities
in exchange for such Global Securities.
(g) Legends.
(i) Except as permitted by the following paragraphs
(ii) and (iii), each Security certificate evidencing Glo-
bal Securities and Certificated Securities (and all Secu-
rities issued in exchange therefor or substitution
thereof) shall bear legends in substantially the form set
forth in Exhibit A hereto and in addition, each Security
certificate evidencing Global Securities shall also bear
legends in substantially the form set forth in Exhibit C
hereto.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Global Security) pursuant to
Rule 144 under the Securities Act or pursuant to an effec-
tive registration statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Certificated Security, the Regis-
trar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Certificated Secu-
rity that does not bear the legend set forth in
Exhibit A and rescind any restriction on the transfer
of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Security, such
Transfer Restricted Security shall not be required to
bear the legend set forth in Exhibit A, although it
shall continue to be subject to the provisions of
Section 2.6(c) hereof; provided, however, that with
respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global
Security for a Certificated Security that does not
bear the legend set forth in Exhibit A, which request
is made in reliance upon Rule 144, the Holder thereof
shall furnish a Transferor Certificate to the Regis-
trar that such request is being made pursuant to
Rule 144.
(iii) Notwithstanding the foregoing, upon Consummation
of the Exchange Offer, the Company shall issue, and upon
<PAGE>
29
receipt of an authentication order in accordance with
Section 2.2, the Trustee shall authenticate, Securities to
be issued in the Exchange Offer, which Securities shall
not bear the legend set forth in Exhibit A, and the Regis-
trar shall rescind any restriction on the transfer of such
Securities, in each case unless the Holder of the Securi-
ties tendered into the Exchange Offer is either (A) a
broker-dealer who purchased such Securities directly from
the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act, (B) a Person
participating in the distribution of the Securities or
(C) a Person who is an affiliate (as defined in Rule 144A)
of the Company.
(h) Cancellation and/or Adjustment of Global Securi-
ties. At such time as all beneficial interests in Global Secu-
rities have either been exchanged for Certificated Securities,
redeemed, repurchased or cancelled, all Global Securities shall
be returned to or retained and cancelled by the Trustee. At
any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for Certificated Securities,
redeemed, repurchased or cancelled, the principal amount of
Securities represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global
Security, by the Trustee to reflect such reduction.
(i) General Provisions Relating to
Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Certificated Securities and Global Securities
at the Registrar's request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or
transfer pursuant to Sections 4.11 and 4.14 hereof and
Section 7 of the Securities).
(iii) The Registrar shall not be required to register
the transfer of or exchange any Security selected for
redemption in whole or in part, except the unredeemed por-
tion of any Security being redeemed in part.
<PAGE>
30
(iv) All Certificated Securities and Global Securi-
ties issued upon any registration of transfer or exchange
of Certificated Securities or Global Securities shall be
the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Inden-
ture, as the Certificated Securities or Global Securities
surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange Securities during a period beginning at the
opening of business 15 days before the day of any
selection of Securities for redemption under Section
3.2 hereof and ending at the close of business on the
day of selection; or
(B) to register the transfer of or to exchange
any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Secu-
rity being redeemed in part; or
(C) to register the transfer of or to exchange
a Security between a record date and the next suc-
ceeding interest payment date.
(vi) Prior to due presentment for the registration of
a transfer of any Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Security is registered as the absolute owner of such Secu-
rity for the purpose of receiving payment of principal of
and interest on such Security, and neither the Trustee,
any Agent nor the Company shall be affected by notice to
the contrary.
(vii) The Trustee shall authenticate Certificated
Securities and Global Securities upon receipt of an Offic-
ers' Certificate instructing it to do so.
SECTION 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Regis-
trar or the Trustee or if the Holder of a Security claims that
the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a
replacement Security if the Holder of such Security furnishes
to the Company and to the Trustee evidence reasonably
<PAGE>
31
acceptable to them of the ownership and the destruction, loss
or theft of such Security. If required by the Trustee or the
Company, an indemnity bond shall be posted, sufficient in the
judgment of the Company or the Trustee, as the case may be, to
protect the Company, the Trustee or any Agent from any loss
that any of them may suffer if such Security is replaced. The
Company may charge such Holder for the Company's expenses in
replacing such Security and the Trustee may charge the Company
for the Trustee's expenses in replacing such Security. Every
replacement Security shall constitute an additional obligation
of the Company.
SECTION 2.8 Outstanding Securities.
The Securities outstanding at any time are all Secu-
rities that have been authenticated by the Trustee except for
(a) those cancelled by it, (b) those delivered to it for can-
cellation, (c) to the extent set forth in Sections 8.1 and 8.2,
on or after the date on which the conditions set forth in
Section 8.1 or 8.2 have been satisfied, those Securities there-
tofore authenticated and delivered by the Trustee hereunder and
(d) those described in this Section 2.8 as not outstanding. A
Security does not cease to be outstanding because the Company
or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee receives proof sat-
isfactory to it that the replaced Security is held by a bona
fide purchaser in whose hands such Security is a legal, valid
and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such,
on any Maturity Date or on any optional redemption date money
sufficient to pay all accrued interest, Additional Payments,
Liquidated Damages and principal with respect to such Securi-
ties payable on that date and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Securities cease to
be outstanding and interest on them ceases to accrue.
SECTION 2.9 Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any declara-
tion of acceleration or notice of default or direction, waiver
or consent or any amendment, modification or other change to
this Indenture, Securities owned by the Company or a Subsidiary
or an Affiliate of the Company shall be disregarded as though
<PAGE>
32
they were not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent or any amendment, mod-
ification or other change to this Indenture, only Securities
that the Trustee actually knows are so owned shall be so disre-
garded. Securities owned by the Company or a Subsidiary or an
Affiliate of the Company which have been pledged in good faith
may be regarded as outstanding if the Trustee receives an
Officers' Certificate stating that said Securities have been so
pledged, that the pledgee is entitled to vote with respect to
such Securities and that the pledgee is not the Company or any
other obligor on the Securities, a Subsidiary or an Affiliate
of the Company, or a Subsidiary of such other obligor.
SECTION 2.10 Temporary Securities.
Until definitive Securities are prepared and ready
for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall
be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for tem-
porary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities. Until such
exchange, Holders of temporary Securities shall be entitled to
the same rights, benefits and privileges as Holders of defini-
tive Securities.
SECTION 2.11 Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and
shall (subject to the record-retention requirements of the
Exchange Act) dispose of cancelled Securities unless the Com-
pany directs the Trustee to return such Securities to the Com-
pany, and, if so disposed, shall deliver a certificate of dis-
position thereof to the Company upon the Company's written
request. The Company may not reissue or resell, or issue new
Securities to replace, Securities that the Company has redeemed
or paid, or that have been delivered to the Trustee for
cancellation.
<PAGE>
33
SECTION 2.12 Defaulted Interest.
If the Company defaults on a payment of interest,
Additional Payments or Liquidated Damages on the Securities, it
shall pay the defaulted interest, Additional Payments and
Liquidated Damages, plus (to the extent permitted by law) any
interest payable on the defaulted interest, Additional Payments
and Liquidated Damages, in accordance with the terms hereof, to
the Persons who are Securityholders on a subsequent special
record date, which date shall be at least five Business Days
prior to the payment date. The Company shall fix such special
record date and payment date in a manner reasonably satisfac-
tory to the Trustee. At least 15 days before such special
record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Com-
pany) shall mail or cause to be mailed to each Securityholder a
notice that states the special record date, the related payment
date and the amount of defaulted interest, Additional Payments
and Liquidated Damages, and interest payable on such defaulted
interest, Additional Payments and Liquidated Damages, if any,
to be paid on account of each Security.
SECTION 2.13 CUSIP Number.
The Company in issuing the Securities may use a
'CUSIP' number, and if so, such CUSIP number shall be included
in notices of redemption or exchange as a convenience to Hold-
ers; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly
notify the Trustee of any change in the CUSIP number.
SECTION 2.14 Deposit of Moneys.
Not less than one Business Day prior to each Interest
Payment Date and Maturity Date, the Company shall have depos-
ited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest
Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date or Maturity Date, as the
case may be.
<PAGE>
34
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee.
If the Company elects to redeem Securities pursuant
to Paragraph 7 of the Securities, it shall notify the Trustee
and the Paying Agent in writing of the Redemption Date and the
principal amount of Securities to be redeemed.
The Company shall give each notice provided for in
this Section 3.1 at least 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in
writing), together with an Officers' Certificate stating that
such redemption will comply with the conditions contained
herein and in the Securities.
SECTION 3.2 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed
at any time, selection of Securities for redemption will be
made by the Trustee on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate or, if
the relevant notice of redemption identifies the requirements
applicable to such selection of the principal national securi-
ties exchange, if any, on which the Notes are listed, then
selection of Notes for redemption will be made by the Trustee
in compliance with such requirements. The Trustee shall make
the selection from the Securities outstanding and not previ-
ously called for redemption. The Trustee shall promptly notify
the Company in writing of such Securities selected for redemp-
tion and, in the case of Securities selected for partial
redemption, the principal amount to be redeemed. The Trustee
may select for redemption portions of the principal amount of
Securities that have denominations larger than $1,000. Securi-
ties and portions of them the Trustee selects shall be in
amounts of $1,000 or integral multiples of $1,000. Provisions
of this Indenture that apply to Securities called for redemp-
tion also apply to portions of Securities called for
redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail, or cause the mailing
of, a notice of redemption by first-class mail to each Holder
of Securities to be redeemed and the Trustee.
<PAGE>
35
The notice shall identify the Securities to be
redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price and the amount of accrued
interest, Additional Payments and Liquidated Damages, if
any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price and accrued interest, Additional Payments and Liqui-
dated Damages, if any;
(e) that, unless the Company defaults in making the
redemption payment, interest, Additional Payments and
Liquidated Damages on Securities called for redemption
ceases to accrue on and after the Redemption Date and the
only remaining right of the Holders of such Securities of
such series is to receive payment of the redemption price
upon surrender to the Paying Agent of the Securities
redeemed;
(f) if any Security is to be redeemed in part, the
portion of the principal amount (equal to $1,000 or any
integral multiple thereof) of such Security to be redeemed
and that, on or after the Redemption Date, upon surrender
and cancellation of such Security, a new Security or Secu-
rities in aggregate principal amount equal to the
unredeemed portion thereof will be issued without charge
to the Securityholder;
(g) if less than all of the Securities are to be
redeemed, the identification of the particular Securities
(or portion thereof) to be redeemed, as well as the aggre-
gate principal amount of Securities to be redeemed; and
(h) the CUSIP number, if any, pursuant to Section
2.13.
At the Company's written request, made at least 15
days prior to the date on which notice of redemption is to be
given, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense.
<PAGE>
36
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities
called for redemption become due and payable on the Redemption
Date and at the redemption price. Upon surrender to the Paying
Agent, such Securities shall be paid at the redemption price
plus accrued interest, Additional Payments and Liquidated Dam-
ages to the Redemption Date, but interest installments, Addi-
tional Payments and Liquidated Damages whose maturity is on or
prior to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates referred to in the
Securities.
SECTION 3.5 Deposit of Redemption Price.
Not less than one Business Day prior to the Redemp-
tion Date, the Company shall deposit with the Paying Agent in
immediately available funds money sufficient to pay the redemp-
tion price of and accrued interest, Additional Payments and
Liquidated Damages on all Securities or portions thereof to be
redeemed on that date. Upon written request of the Company,
the Paying Agent shall promptly return to the Company any money
deposited with the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued
interest, Additional Payments and Liquidated Damages on, all
Securities to be redeemed.
If any Security surrendered for redemption in the
manner provided in the Securities shall not be so paid on the
Redemption Date due to the failure of the Company to deposit
sufficient funds with the Paying Agent, interest and, if appli-
cable, Additional Payments and Liquidated Damages will continue
to accrue from the Redemption Date until such payment is made
on the unpaid principal and, to the extent lawful, interest
will continue to accrue from the Redemption Date on any inter-
est, Additional Payments and Liquidated Damages not paid on
such unpaid principal, in each case at the date and in the man-
ner provided in the Securities.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender to the Paying Agent of a Security that
is redeemed in part, the Company shall execute and, upon the
Company's written request, the Trustee shall authenticate for
the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
<PAGE>
37
SECTION 3.7 Limitations.
The provisions of this Article Three and of
Paragraph 7 of the Securities shall not apply to any private or
open market purchase of Securities by the Company, whether or
not any Securities so purchased are retired or extinguished.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay, or cause to be paid, the prin-
cipal of and interest and, if applicable, Additional Payments
and Liquidated Damages on the Securities on the dates and in
the manner provided in the Securities and this Indenture.
An installment of principal or interest and, if
applicable, Additional Payments and Liquidated Damages shall be
considered paid on the date due if the Trustee or Paying Agent
(other than the Company, a Subsidiary of the Company or any
Affiliate of any thereof) holds on such date immediately avail-
able funds designated for and sufficient to pay such
installment.
The Company shall pay interest on overdue principal
(including post-petition interest in any proceeding under Bank-
ruptcy Law) and (to the extent permitted by law) on overdue
installments of interest and, if applicable, Additional Pay-
ments and Liquidated Damages (including post-petition interest
in any proceeding under Bankruptcy Law) at a rate equal to 12-1/4%
per annum.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhat-
tan, the City of New York, an office or agency (which may be
the Trustee or an Affiliate of the Trustee), where Securities
may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to
or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
<PAGE>
38
or served at the address of the Trustee set forth in
Section 12.2.
The Company may also from time to time designate one
or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York, for
such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the corporate
trust office of the Trustee set forth in Section 12.2 as an
agency of the Company in accordance with Section 2.3.
SECTION 4.3 Corporate Existence.
Subject to Article Five hereof, the Company shall do
or cause to be done, at its own cost and expense, all things
necessary to and will cause each of its Subsidiaries to, pre-
serve and keep in full force and effect the corporate or part-
nership existence and rights (charter and statutory), licenses
and/or franchises of the Company and each of its Subsidiaries;
provided, however, that (x) this Section 4.3 shall not apply to
any Subsidiary of the Company after its corporate or partner-
ship existence is terminated in a transaction permitted by Sec-
tion 4.11 and (y) the Company or any of its Subsidiaries shall
not be required to preserve any such rights, licenses and fran-
chise or corporate existence (with respect to Subsidiaries) if
the Board of Directors of the Company shall reasonably deter-
mine that the loss thereof is not, and will not be, adverse in
any material respect to the Holders.
SECTION 4.4 Payment of Taxes and Other Claims.
The Company shall and shall cause each of its Subsid-
iaries to pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes,
assessments and governmental levies, except such as are being
contested in good faith by appropriate negotiations or proceed-
ings and for which appropriate provision has been made in
accordance with GAAP.
<PAGE>
39
SECTION 4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law.
(a) The Company shall and shall cause each of its
Subsidiaries to, at all times cause all properties used in the
conduct of its business to be maintained and kept in good con-
dition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment, and shall
cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, in each case, in a manner
customary for companies similarly situated.
(b) The Company shall and shall cause each of its
Subsidiaries to maintain insurance with insurance companies or
association with a rating of 'A-' or better, as established by
Best's Rating Guide (or an equivalent rating with such other
publication of a similar nature as shall be in current use) in
such amounts and covering such risks as are usually and custom-
arily carried with respect to companies similarly situated and
similar facilities according to their respective locations.
(c) The Company shall and shall cause each of its
Subsidiaries to keep proper books of record and account, in
which full and correct entries shall be made of all financial
transactions and the assets and business of the Company and
each Subsidiary of the Company, in accordance with GAAP consis-
tently applied to the Company and its Subsidiaries taken as a
whole.
(d) The Company shall and shall cause each of its
Subsidiaries to comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, non-
compliance with which would materially adversely affect the
business, condition (financial or otherwise), results of opera-
tions or properties of the Company and its Subsidiaries taken
as a whole.
(e) The Company and each Guarantor shall deliver to
the Trustee any information reasonably requested by the Trustee
in connection with compliance by the Trustee or the Company
with any of their respective duties or obligations hereunder or
under the TIA.
(f) Upon the request of the Trustee, the Company and
each Guarantor shall execute and deliver such further instru-
ments and do such further acts as may be reasonably necessary
or proper to carry out effectively the purposes of this
Indenture.
<PAGE>
40
(g) The Company shall not and shall not permit any
of its Subsidiaries to enter into any agreement or instrument
that by its terms expressly prohibits the Company from making
any payments on or in respect of the Securities in accordance
with the terms thereof and of this Indenture.
SECTION 4.6 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within
90 days after the end of each fiscal year, an Officers' Cer-
tificate of the Company stating (i) that a review of the activ-
ities of the Company during the preceding fiscal year has been
made under the supervision of the signing Officers with a view
to determining whether the Company has kept, observed, per-
formed and fulfilled its obligations under this Indenture,
(ii) that, to the best knowledge of such Officer after due
inquiry, the Company has kept, observed, performed and ful-
filled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default
or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officer may have
knowledge, their status and what action the Company is taking
or proposes to take with respect thereto) and (iii) that to the
best of his knowledge after due inquiry no event has occurred
and remains in existence by reason of which payments on account
of the principal of or interest, Additional Payments and Liqui-
dated Damages, if any, on the Securities are prohibited (or, if
such event has occurred, describing the event and what action
the Company is taking or proposes to take with respect
thereto).
(b) So long as not contrary to the then current rec-
ommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursu-
ant to Section 4.7 below shall be accompanied by a written
statement of the Company's independent public accountants (who
shall be a firm of established national reputation) that in
making the examination necessary for certification of such
financial statements, nothing has come to their attention that
would lead them to believe that the Company has violated any
provisions of Article Four or Five hereof or, if any such vio-
lation has occurred, specifying the nature and period of exis-
tence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
<PAGE>
41
(c) The Company shall, so long as any of the Securi-
ties are outstanding, deliver to the Trustee, forthwith upon
any Officer becoming aware of any Default or Event of Default
an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.7 Reports.
Whether or not required by the rules and regulations
of the SEC, so long as any Securities are outstanding, Pro-Fac
and the Company shall furnish to the Trustee and to the Holders
of Securities (i) all quarterly and annual financial informa-
tion that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if Pro-Fac and the Com-
pany were required to file such Forms, including a 'Manage-
ment's Discussion and Analysis of Financial Condition and
Results of Operations' that describes the financial condition
and results of operations of Pro-Fac, the Company and its Sub-
sidiaries, and, with respect to the annual information only, a
report on the financial statements by Pro-Fac's and the Compa-
ny's certified independent accountants and (ii) all reports
that would be filed with the Commission on Form 8-K if Pro-Fac
and the Company were required to file such reports. In addi-
tion, whether or not required by the rules and regulations of
the Commission, following Consummation of the Exchange Offer,
Pro-Fac and the Company shall file a copy of all such informa-
tion and reports with the Commission for public availability
(unless the Commission shall not accept such a filing) and make
such information available to investors who request it in writ-
ing. For so long as any Transfer Restricted Securities remain
outstanding, each of Pro-Fac and the Company shall furnish to
the Holders and beneficial holders of Transfer Restricted Secu-
rities and to prospective purchasers of Transfer Restricted
Securities designated by the Holders of Transfer Restricted
Securities and to broker-dealers, upon their request, the
information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.
SECTION 4.8 Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock.
(a) The Company shall not, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to (collectively,
'incur') any Indebtedness (including Acquired Debt) and shall
not issue any Disqualified Stock and shall not permit any of
its Subsidiaries to incur any Indebtedness (including Acquired
<PAGE>
42
Debt) or to issue any shares of preferred stock; provided, how-
ever, that the Company may incur Indebtedness and issue shares
of Disqualified Stock if (i) the Fixed Charge Coverage Ratio
for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immedi-
ately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock is issued would have
been at least 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds there-
from), as if the additional Indebtedness had been incurred or
the Disqualified Stock had been issued, as the case may be, and
the net proceeds therefrom had been applied, at the beginning
of such four-quarter period and (ii) no Default or Event of
Default shall have occurred and be continuing immediately after
such incurrence.
(b) The limitations contained in subsection (a)
above shall not apply to the incurrence (i) by the Company of
Indebtedness (and by Subsidiary Guarantors of related guaran-
tees) under the Seasonal Working Capital Facility in an aggre-
gate principal amount at any time outstanding not to exceed the
amount of the Borrowing Base calculated as of the date of such
incurrence; (ii) (A) by the Company of Indebtedness evidenced
by letters of credit issued in the ordinary course of business
consistent with past practice to support the Company's insur-
ance or self-insurance obligations (including to secure work-
ers' compensation and other similar insurance coverage) or to
support surety bonds or appeal bonds provided by the Company in
the ordinary course of business and (B) by the Company of
Indebtedness (and by Subsidiary Guarantors of related guaran-
tees) available under the Letter of Credit Facility evidenced
by letters of credit with an aggregate face amount not to
exceed $10.0 million; (iii) by the Company of Indebtedness (and
by Subsidiary Guarantors of related guarantees) available under
the Term Loan Facility in an aggregate principal amount at any
time outstanding not to exceed $120.0 million, as reduced by
any mandatory commitment reductions under the Term Loan Facil-
ity; (iv) by the Company of Indebtedness (and by Subsidiary
Guarantors of related guarantees) under the Term Loan in an
aggregate principal amount at any time not to exceed $80.0 mil-
lion, as reduced by any mandatory commitment reductions under
the Term Loans; (v) by the Company of Indebtedness represented
by the Securities (and by Subsidiary Guarantors of Indebtedness
represented by the Guarantees); (vi) by the Company or any Sub-
sidiary in respect of Capital Lease Obligations in an aggregate
principal amount not to exceed $10.0 million at any time out-
standing; (vii) by the Company or any Subsidiary in respect of
purchase money obligations in an aggregate amount not to exceed
<PAGE>
43
$5.0 million at any time outstanding; (viii) by the Company or
any Subsidiary in respect of industrial revenue bonds or simi-
lar securities provided that the net proceeds thereof are
applied to construct new facilities and that the aggregate
principal amount of such industrial revenue bonds does not
exceed 75% of the fair market value of the facilities financed
thereby; (ix) by any Subsidiary of the Company of Indebtedness
to the Company; (x) by the Company of Hedging Obligations for
the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding; and
(xi) Permitted Refinancing Indebtedness of Indebtedness
incurred by the Company pursuant to clause (v) above or pursu-
ant to subsection (a) above.
(c) Anything contained in this Section 4.8 notwith-
standing, the Company may make demand loans to Pro-Fac for
working capital purposes aggregating in an amount not exceeding
$10.0 million at any time outstanding, each such demand loan
bearing an interest rate equal to the interest rate in effect
on the date of such loan under the Seasonal Facility; provided,
however, that the aggregate loan balance of such demand loans
must be reduced to zero for a period of not less than 15 con-
secutive days in each fiscal year. Except for (i) the demand
loans described in the preceding sentence, (ii) Pro-Fac's guar-
antee under the New Credit Agreement, and (iii) Pro-Fac's Guar-
antee of the Obligations under this Indenture, as long as
Pro-Fac has the right to borrow under the Pro-Fac Marketing
Agreement, Pro-Fac shall not incur any Indebtedness (it being
understood that Pro-Fac's obligations in respect of retained
earnings allocated to its members shall not be deemed to be
Indebtedness).
SECTION 4.9 Limitation on Liens.
The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or
hereafter acquired, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, except
Permitted Liens, unless (i) in the case of any Lien that
secures an Obligation that is pari passu with the Indebtedness
represented by the Securities, all payments in respect of the
Securities are secured on an equal and ratable basis with the
Obligation so secured and (ii) in the case of any Lien that
secures an Obligation that is subordinated to the Indebtedness
represented by the Securities, all payments in respect of the
<PAGE>
44
Securities are secured on a senior basis reflecting the subor-
dination of the Obligation so secured.
SECTION 4.10 Limitation on Restricted Payments.
The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly: (i) declare or
pay any dividend or make any distribution on account of the
Company's or any of its Subsidiaries' Equity Interests (other
than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company or any Affiliate
of the Company (other than any such Equity Interests owned by
the Company or any Subsidiary of the Company); (iii) purchase,
redeem or otherwise acquire or retire for value prior to its
scheduled final maturity any Indebtedness that is subordinated
to the Securities; or (iv) make any Restricted Investment (all
such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to as
'Restricted Payments'), unless, at the time of such Restricted
Payment:
(a) no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof; and
(b) at the time of such Restricted Payment and after
giving effect thereto as if such Restricted Payment (and
any other Restricted Payments made since the end of the
applicable four-quarter period) had been made at the
beginning of such four-quarter period, the Fixed Charge
Coverage Ratio (calculated in a manner set forth in
clause (i) of Section 4.8(a) above) would have been at
least 1.75 to 1.00; and
(c) such Restricted Payment, together with the
aggregate of all other Restricted Payments made by the
Company and its Subsidiaries after the date of this Inden-
ture (including, but not limited to, Restricted Payments
permitted by clauses (i), (ii) and (iii)(b) of the next
succeeding paragraph), is less than the sum of (u) 50% of
the Consolidated Net Income (or, if Consolidated Net
Income is negative, 100% of the Consolidated Net Income)
of the Company for the period (taken as one accounting
period) from June 26, 1994 to the end of the most recently
ended fiscal quarter for which internal financial
<PAGE>
45
statements are available at the time of such Restricted
Payment, plus (v) 100% of the aggregate net cash proceeds
(50% with respect to the first $10.0 million) received by
the Company from the issue or sale since the date of this
Indenture of Equity Interests of the Company (including,
but not limited to, Equity Interests issued as described
in clauses (ii) and (iii)(b) of the next succeeding para-
graph, but excluding amounts contributed to the Company
pursuant to clause (y) and any Equity Interests purchased
with the proceeds of loans by the Company or any of its
Subsidiaries to employees of the Company or any of its
Subsidiaries, and additional contributions of capital by
Pro-Fac in respect of Equity Interests), plus (w) 100% of
the aggregate net cash proceeds received by the Company
from the issue or sale since the date of this Indenture of
debt securities of the Company that have been converted
into such Equity Interests (other than (1) Equity Inter-
ests (or convertible debt securities) sold to a Subsidiary
of the Company, (2) Disqualified Stock or debt securities
that have been converted into Disqualified Stock and
(3) Equity Interests purchased by members of the Company's
or its Subsidiaries' management with the proceeds of loans
from the Company or any of its Subsidiaries), plus (x) to
the extent that any Restricted Investment that was made
after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the lesser of
(A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if
any) and (B) the initial amount of such Restricted Invest-
ment, plus (y) 40% of the aggregate contributions by
Pro-Fac to the Company pursuant to Section 4.18 hereof
subsequent to the date of this Indenture, plus
(z) $5.0 million.
The foregoing provisions of subsections (b) and (c)
shall not prohibit (i) the payment of any dividend within 60
days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provi-
sions of this Indenture; (ii) the redemption, repurchase,
retirement or other acquisition of any Equity Interests of the
Company in exchange for, or out of the proceeds of, the sub-
stantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company (other than
any Disqualified Stock); (iii) the defeasance, redemption,
repurchase or other retirement of subordinated Indebtedness
(a) with the net proceeds from an incurrence of Permitted Refi-
nancing Indebtedness or (b) in exchange for, or out of the pro-
ceeds of, the substantially concurrent sale of Equity Interests
<PAGE>
46
of the Company (other than (x) Disqualified Stock, (y) Equity
Interests sold to a Subsidiary of the Company and (z) Equity
Interests purchased by members of the Company's or its Subsid-
iaries' management with the proceeds of loans from the Company
or any of its Subsidiaries); and (iv) the payment of amounts
required to fund Pro-Fac's reasonable operating expenses, not
in excess of $250,000, as adjusted to reflect changes in the
Consumer Price Index between the date of this Indenture and the
date of any such payment, in any fiscal year.
SECTION 4.11 Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and shall not permit any
of its Subsidiaries to, (i) sell, lease, convey or otherwise
dispose of any assets (including by way of a sale-and-lease-
back) other than sales of inventory in the ordinary course of
business consistent with past practice (provided that the sale,
lease, conveyance or other disposition of all or substantially
all of the assets of the Company will be governed by the provi-
sions of Section 4.14 and Section 5.1 and not by the provisions
of this Section 4.11), or (ii) issue Equity Interests in any of
its Subsidiaries, or sell Equity Interests in any of its Sub-
sidiaries, in the case of either clause (i) or (ii) above,
whether in a single transaction or a series of related transac-
tions, (A) that have a fair market value in excess of
$1.0 million, or (B) for net proceeds in excess of $1.0 million
(each of the foregoing, an 'Asset Sale'), unless (x) the Com-
pany or the Subsidiary, as the case may be, receives considera-
tion at the time of such Asset Sale at least equal to the fair
market value (evidenced by a resolution of the Board of Direc-
tors set forth in an Officers' Certificate delivered to the
Trustee) of the assets sold or otherwise disposed of and (y)
any securities and non-cash consideration acquired in connec-
tion with such Asset Sale are Permitted Asset Sale Considera-
tion. A transfer of assets or an issuance of Equity Interests
by a Subsidiary of the Company to the Company or a Subsidiary
Guarantor shall not be deemed to be an Asset Sale and a trans-
fer of assets that constitutes a Restricted Investment and that
is permitted by Section 4.10 above shall not be deemed to be an
Asset Sale.
(b) Within 270 days after any Asset Sale, the Com-
pany or the relevant Subsidiary, as the case may be, may apply
the Net Proceeds from such Asset Sale, at its option, either
(i) to permanently reduce borrowings under the New Credit
Agreement or any successor facility or to permanently repay any
other Senior Indebtedness (and, in each case, correspondingly
to reduce commitments thereunder, if any, unless such
<PAGE>
47
borrowings could be incurred under subsection 4.8(a) above as
of such date), (ii) to acquire properties and assets in the
same line of business as the Company or the relevant Subsid-
iary, as the case may be, was engaged in on the date of the
Asset Sale or a similar business or a business reasonably
related thereto or (iii) to redeem the Securities in whole or
in part to the extent permitted under Article Three above and
Section 7 of the Securities. Pending the final application of
any such Net Proceeds, the Company or the relevant Subsidiary,
as the case may be, may temporarily reduce borrowings under any
revolving credit facility or otherwise invest such Net Proceeds
in any manner that is not prohibited by this Indenture. Any
Net Proceeds from the Asset Sale that are not applied or
invested as provided in the first sentence of this paragraph
will be deemed to constitute 'Excess Proceeds', but such Net
Proceeds shall be deemed to be Excess Proceeds only after the
expiration of the 270 day period described in such sentence.
When the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company shall make an offer to all Holders
of Securities (an 'Asset Sale Offer') to purchase the maximum
principal amount of Securities that may be purchased out of the
Excess Proceeds, at an offer price in cash in an amount equal
to 100% of the principal amount thereof plus accrued and unpaid
interest, Additional Payments and Liquidated Damages thereon,
if any, to the date of purchase. To the extent that the aggre-
gate amount of Securities tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company or the
relevant Subsidiary, as the case may be, may use such remaining
Excess Proceeds for general corporate purposes. If the aggre-
gate principal amount of Securities surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Securities to be purchased as nearly as pos-
sible on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
Notwithstanding the foregoing, to the extent that the
Company or any of its Subsidiaries receives securities or other
non-cash property or assets as proceeds of an Asset Sale, the
Company shall not be required to make any application of such
non-cash proceeds required by the immediately preceding para-
graph until such non-cash property has been converted to cash
or Cash Equivalents.
(c) Notice of an Asset Sale Offer shall be mailed by
first class mail by the Company to all Holders of Securities
not less than 30 days nor more than 60 days before the Asset
Sale Payment Date at their last registered address, with a copy
to the Trustee and the Paying Agent. The Asset Sale Offer
<PAGE>
48
shall remain open from the time of mailing for at least 20
Business Days and until at least 5:00 p.m., New York City time,
on the third Business Day immediately preceding the Asset Sale
Payment Date. The notice, which shall govern the terms of the
Asset Sale Offer, shall include such disclosures as are
required by law and shall state:
(i) that the Asset Sale Offer is being made
pursuant to this Section 4.11 and setting forth
the facts and circumstances relevant to such Asset
Sale;
(ii) the purchase price (including the amount
of accrued interest, Additional Payments and
Liquidated Damages, if any) for each Security and
the Asset Sale Payment Date;
(iii) that any Security not tendered or
accepted for payment will continue to accrue
interest, Additional Payments and Liquidated Dam-
ages in accordance with the terms thereof;
(iv) that any Security accepted for payment
pursuant to the Asset Sale Offer shall cease to
accrue interest, Additional Payments and Liqui-
dated Damages on and after the Asset Sale Payment
Date;
(v) that Holders electing to have Securities
purchased pursuant to an Asset Sale Offer will be
required to surrender their Securities to the Pay-
ing Agent at the address specified in the notice
not later than 5:00 p.m., New York City time, on
the third Business Day immediately preceding the
Asset Sale Payment Date and must complete any form
letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(vi) that Holders will be entitled to with-
draw their election if the Paying Agent receives,
not later than 5:00 p.m., New York City time, on
the second Business Day immediately preceding the
Asset Sale Payment Date, a telex or facsimile
transmission (confirmed by overnight delivery of
the original thereof) or letter setting forth the
name of the Holder, the principal amount of Secu-
rities the Holder delivered for purchase, the
Security certificate number (if any) and a
<PAGE>
49
statement that such Holder is withdrawing his
election to have such Securities purchased;
(vii) that if Securities in a principal amount
in excess of the Securityholders' pro rata share
of the Net Proceeds are tendered pursuant to the
Asset Sale Offer, the Company shall purchase Secu-
rities on a pro rata basis among the Securities
tendered (with such adjustments as may be deemed
appropriate by the Company so that only Securities
in denominations of $1,000 or integral multiples
of $1,000 shall be acquired);
(viii) that Holders whose Securities are pur-
chased only in part will be issued new Securities
equal in principal amount to the unpurchased por-
tion of the Securities surrendered; and
(ix) the instructions that Holders must fol-
low in order to tender their Securities.
Not later than the Business Day immediately preceding
the Asset Sale Payment Date, the Company shall (i) accept for
payment, on a pro rata basis among the Securities, Securities
or portions thereof tendered pursuant to the Asset Sale Offer,
(ii) deposit with the Paying Agent money, in immediately avail-
able funds, in an amount sufficient to pay the purchase price
of all Securities or portions thereof so tendered and accepted
and (iii) deliver to the Paying Agent the Securities so
accepted together with an Officers' Certificate setting forth
the Securities or portions thereof tendered to and 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 purchase price, 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 Company to the
Holder thereof. The Company will publicly announce the results
of the Asset Sale Offer on the first Business Day following the
Asset Sale Payment Date. To the extent an Asset Sale Offer is
not fully subscribed to by such Holders, the Company may retain
such unutilized portion of the Net Proceeds. The Paying Agent
shall promptly deliver to the Company the balance of any moneys
held by the Paying Agent after payment to the holders of Secu-
rities as aforesaid. For purposes of this Section 4.11, the
Trustee shall act as Paying Agent.
<PAGE>
50
The Company shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Securities pursuant to the Asset Sale Offer. To
the extent that the provisions of any securities laws or regu-
lations conflict with provisions of this Section 4.11, the Com-
pany shall comply with the applicable securities laws and regu-
lations and shall not be deemed to have breached its obliga-
tions under this Section 4.11 by virtue thereof.
SECTION 4.12 Transactions with Affiliates.
The Company shall not, and shall not permit any of
its Subsidiaries to, sell, lease, transfer or otherwise dispose
of any of its properties or assets to, or purchase any property
or assets from, or enter into any contract, agreement, under-
standing, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an 'Affiliate Trans-
action'), unless (i) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Sub-
sidiary than those that would have been obtained in a compa-
rable transaction by the Company or such Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction involving Pro-Fac
(including, without limitation, any amendment to or waiver
under the Pro-Fac Marketing Agreement and any agreement for the
purchase of crops entered into pursuant to the Pro-Fac Market-
ing Agreement) or involving aggregate payments in excess of
$1.0 million, a written resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (i) above and such
Affiliate Transaction is approved by a majority of the Disin-
terested Directors and (b) with respect to any Affiliate Trans-
action (other than relating to the Pro-Fac Marketing Agreement
and any agreement for the purchase of crops entered into pursu-
ant to the Pro-Fac Marketing Agreement) involving aggregate
payments in excess of $5.0 million, either (I) an opinion as to
the fairness to the Company or such Subsidiary from a financial
point of view issued by an investment banking firm of national
standing or (II) with respect to any Affiliate Transaction
involving a transfer of tangible assets, a written appraisal
from a nationally recognized appraiser showing such tangible
assets to have a value not less than the value of such pay-
ments, in the case of a transfer of such assets to the Company
or such Subsidiary, and not more than the value of such pay-
ments, in the case of a transfer of such assets from the Com-
pany or such Subsidiary; provided, however, that (x) any
employment agreement entered into by the Company or any of its
<PAGE>
51
Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Subsidiary, (y)
except to the extent referenced in the parenthetical to clause
(a) of this paragraph, the Pro-Fac Marketing Agreement and any
transactions effected pursuant thereto and (z) transactions
permitted by Section 4.10 above, in each case, shall not be
deemed Affiliate Transactions.
SECTION 4.13 Limitation on Sale and
Leaseback Transactions.
The Company shall not, and shall not permit any of
its Subsidiaries to, enter into any sale and leaseback transac-
tion; provided, however, that the Company or its Subsidiaries
may enter into such sale and leaseback transaction if (i) the
Company or such Subsidiary could have (a) incurred Indebtedness
in an amount equal to the Attributable Debt relating to such
sale and leaseback transaction pursuant to Section 4.8 above
and (b) incurred a Lien to secure such Indebtedness pursuant to
Section 4.9 above, (ii) the proceeds of such sale and leaseback
transaction are at least equal to the fair market value (as
determined in good faith by the Company's Board of Directors
and set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale and
leaseback transaction and (iii) the Company shall apply or
cause to be applied the proceeds of such transaction in compli-
ance with Section 4.11 above. To the extent that the Company
or any Subsidiary enters into a sale and leaseback transaction,
the Company shall specify to the Trustee the provision of this
Article Four relating to incurrence of Indebtedness pursuant to
which such Attributable Debt would have been permitted to have
been incurred and the amount available under such provision for
future incurrences of Indebtedness or Attributable Debt shall
be correspondingly reduced.
SECTION 4.14 Change of Control.
Upon the occurrence of a Change of Control, each
Holder of Securities will have the right to require the Company
to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Securities pursuant to the
offer described below (the 'Change of Control Offer') at an
offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional
Payments and Liquidated Damages thereon, if any, to the date of
purchase (the 'Change of Control Payment'). Within 30 days
following any Change of Control, the Company will mail a notice
to each Holder stating: (i) that the Change of Control Offer
<PAGE>
52
is being made pursuant to this Section 4.14 and that all Secu-
rities tendered will be accepted for payment and setting forth
the facts and circumstances relevant to such Change of Control;
(ii) the purchase price and the purchase date, which will be no
earlier than 30 days nor later than 60 days from the date such
notice is mailed (the 'Change of Control Payment Date'); (iii)
that any Security not tendered will continue to accrue interest
and, if applicable, Additional Payments and Liquidated Damages;
(iv) that, unless the Company defaults in the payment of the
Change of Control Payment, all Securities accepted for payment
pursuant to the Change of Control Offer will cease to accrue
interest, Additional Payments and Liquidated Damages on and
after the Change of Control Payment Date; (v) that Holders
electing to have any Securities purchased pursuant to a Change
of Control Offer will be required to surrender the Securities,
with the form entitled 'Option of Holder to Elect Purchase' on
the reverse of the Securities completed, to the Paying Agent at
the address specified in the notice prior to the close of busi-
ness on the third Business Day preceding the Change of Control
Payment Date; (vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of Securities delivered for purchase, and
a statement that such Holder is withdrawing his election to
have such Securities purchased; and (vii) that Holders whose
Securities are being purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion
of the Securities surrendered, which unpurchased portion must
be equal to $1,000 in principal amount or an integral multiple
thereof. The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of the Securi-
ties in connection with a Change of Control.
On or before the Change of Control Payment Date, the
Company will, to the extent lawful, (i) accept for payment
Securities or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Secu-
rities or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee the Securities so accepted
together with an Officers' Certificate stating the Securities
or portions thereof tendered to the Company. The Paying Agent
will promptly mail to each Holder of Securities so accepted the
Change of Control Payment for such Securities, and the Trustee
<PAGE>
53
will promptly authenticate and mail to each Holder a new Secu-
rity equal in principal amount to any unpurchased portion of
the Securities surrendered, if any; provided that each such new
Security will be in a principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce the
results of the Change of Control Offer on or as soon as practi-
cable after the Change of Control Payment Date.
SECTION 4.15 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create or other-
wise cause or suffer to exist or become effective any encum-
brance or restriction on the ability of any such Subsidiary to
(i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (x) on its Capital Stock or
(y) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any Indebtedness owed to
the Company or any of its Subsidiaries, (ii) make loans or
advances to the Company or any of its Subsidiaries or
(iii) transfer any of its properties or assets to the Company
or any of its Subsidiaries, except for such encumbrances or
restrictions existing under or by reasons of (a) applicable
law, (b) customary non-assignment provisions in leases or other
contracts entered into in the ordinary course of business and
consistent with past practices, (c) purchase money obligations
for property acquired in the ordinary course of business that
impose restrictions of the nature described in this clause
(iii) on the property so acquired, (d) customary restrictions
imposed on the transfer of copyrighted or patented materials;
(e) the entering into of a contract for the sale or other dis-
position of assets, directly or indirectly, so long as such
restrictions do not extend to assets that are not subject to
such sale or other disposition, (f) provisions in Indebtedness
of Subsidiaries that is permitted by this Indenture to be
incurred that only restrict the transfer of the assets pur-
chased with the proceeds of such Indebtedness, or (g) Permitted
Refinancing Indebtedness, provided that the restrictions con-
tained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in
the agreements governing the Indebtedness being refinanced.
<PAGE>
54
SECTION 4.16 Waiver of Stay; Extension
of Usury Laws.
The Company covenants (to the extent that it may law-
fully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advan-
tage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all
or any portion of the principal of or interest, Additional Pay-
ments or Liquidated Damages on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the
Company hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trus-
tee, but will suffer and permit the execution of every such
power as through no such law had been enacted.
SECTION 4.17 Subsidiary Guarantees.
If the Company shall at any time have a Subsidiary
that is a guarantor of any Senior Indebtedness of the Company
or any Guarantor, the Company shall cause such Subsidiary to
enter into a supplemental indenture pursuant to which such Sub-
sidiary shall become a Subsidiary Guarantor hereunder.
SECTION 4.18 Limitation on Certain Transactions
with Pro-Fac.
As promptly as practicable and, in any event, within
10 Business Days following receipt from the Company of any pay-
ment made in excess of the Commercial Market Value for crops
and other services pursuant to the Pro-Fac Marketing Agreement,
Pro-Fac shall invest in the Company an amount equal to 70% of
such excess as cash in common equity interests (other than Dis-
qualified Stock).
Without the consent of the Holders of at least three-
quarters in principal amount of the Securities outstanding
(including consents obtained in connection with a tender offer
or exchange offer for the Securities), the Company will not
(i) amend the calculation of amounts payable to Pro-Fac under
the Pro-Fac Marketing Agreement in a manner which would
increase the payments made to Pro-Fac, (ii) amend the Pro-Fac
Marketing Agreement to require that Affiliate Transactions
involving Pro-Fac be approved by less than a majority of the
<PAGE>
55
Disinterested Directors or (iii) amend the provisions of this
paragraph.
SECTION 4.19 Limitation on Other Senior
Subordinated Indebtedness.
The Company shall not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that
is subordinate or junior in right of payment to any Senior
Indebtedness of the Company and senior in right of payment to
the Securities.
Neither Pro-Fac nor any Subsidiary Guarantor shall
incur, create, issue, assume, guarantee, or otherwise become
liable for any Indebtedness that is subordinate in right of
payment to any Senior Indebtedness of Pro-Fac or any such Sub-
sidiary Guarantor, as the case may be, and senior in any
respect in right of payment to the guarantee of Pro-Fac or such
Subsidiary Guarantor, as the case may be, with respect to the
Securities.
SECTION 4.20 Securities Owned by the Company
or an Affiliate of the Company.
The Company shall, as promptly as reasonably practi-
cable, notify the Trustee in writing of any Securities owned by
the Company or any Affiliate of the Company and the Trustee
shall provide to each Holder upon the written request of such
Holder all such information furnished to the Trustee.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc.
The Company may consolidate or merge with or into
(whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or
more related transactions, to another corporation, Person or
entity, but only if (i) the Company is the surviving corpora-
tion or the entity or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation or,
subject to the final sentence of this paragraph, a limited lia-
bility company or similar entity organized or existing under
<PAGE>
56
the laws of the United States, any state thereof or the Dis-
trict of Columbia; (ii) the entity or Person formed by or sur-
viving any such consolidation or merger (if other than the Com-
pany) or the entity or Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have
been made assumes all the Obligations of the Company under the
Securities and this Indenture pursuant to a supplemental inden-
ture in a form satisfactory to the Trustee in its reasonable
judgment; (iii) immediately after such transaction no Default
or Event of Default exists; and (iv) the Company or any entity
or Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (a) shall
have Consolidated Net Worth (immediately after the transaction)
equal to or greater than the Consolidated Net Worth of the Com-
pany immediately preceding the transaction and (b) would, after
giving pro forma effect thereto as if such transaction had
occurred at the beginning of the most recently ended four full
fiscal quarter period for which internal financial statements
are available, be permitted to incur at least $1.00 of addi-
tional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.8 above; provided, however, that
nothing in this Section 5.1 shall prohibit the Acquisition,
provided that upon consummation of the Acquisition,
Curtice-Burns shall have entered into a supplemental indenture
of the type described in clause (ii) above. At or prior to
consummation of any transaction otherwise permitted by this
Section 5.1, if the entity or the Person formed by or surviving
any such consolidation or merger or to which such sale, assign-
ment, transfer, lease, conveyance or other disposition shall
have been made is a limited liability company or similar entity
(such transaction being hereinafter referred to as an 'LLC
Restructuring'), the Company shall deliver to the Trustee (i)
an opinion of counsel acceptable to the Trustee in its reason-
able judgment to the effect that (a) the Holders of the out-
standing Securities shall not recognize income, gain or loss
for federal income tax purposes as a result of such LLC
Restructuring and shall be subject to federal income tax on the
same amounts, in the same manner and at the same times as would
have been the case if such LLC Restructuring had not occurred
or (b) the Company has received from, or there has been pub-
lished by, the Internal Revenue Service a ruling to the same
effect; (ii) an opinion of counsel to the effect that, as a
result of the LLC Restructuring, the rights of the Holders of
the outstanding Securities shall not be adversely affected in
any material respect by the application of any bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally; (iii) an Officers' Certificate stating that
<PAGE>
57
the LLC Restructuring was not effected by the Company with the
intent of preferring the Holders of Securities over the other
creditors of the Company with the intent of defeating, hinder-
ing, delaying or defrauding creditors of the Company or others;
and (iv) such other Opinions of Counsel and Officers' Certifi-
cates customary in the issuance of debt securities as the Trus-
tee may reasonably request.
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation, merger or any transfer of all
or substantially all of the assets of the Company in accordance
with Section 5.1 (including any such transaction involving the
Company and a wholly owned Subsidiary of the Company), the sur-
viving entity formed by such consolidation or into which the
Company is merged or to which such transfer is made shall suc-
ceed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
effect as if such surviving entity had been named as the Com-
pany herein.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
(a) Each of the following constitute an 'Event of
Default':
(i) default by the Company for 30 days in the
payment when due of interest or Additional Pay-
ments on, or Liquidated Damages with respect to,
the Securities, whether or not such payment is
prohibited by Article Ten hereof;
(ii) default by the Company in payment when
due of the principal of or premium, if any, on the
Securities, whether or not such payment is prohib-
ited by Article Ten hereof;
(iii) failure by the Company or any Subsidiary
to comply with the provisions of Section 4.8, 4.10
or 5.1, or by Pro-Fac to comply with the provi-
sions of Section 4.8 or 4.18;
(iv) failure by the Company or any Guarantor
for 60 days after notice from the Trustee or from
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58
Holders of at least 25% of the aggregate principal
amount of the Securities outstanding to comply
with any of its other agreements in this Indenture
or the Securities;
(v) default under any mortgage, indenture or
instrument under which there may be issued or by
which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or
any of its Subsidiaries (or the payment of which
is guaranteed by the Company or any of its Subsid-
iaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this
Indenture, which default results in the accelera-
tion of such Indebtedness prior to its scheduled
maturity and the principal amount of any such
Indebtedness, together with the principal amount
of any other such Indebtedness the maturity of
which has been so accelerated, aggregates
$2.0 million or more;
(vi) default by any Guarantor under its guar-
antee with respect to the Securities or such guar-
antee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guar-
antor, or any Person acting on behalf of such
Guarantor, shall deny or disaffirm its Obligations
under such Guarantee;
(vii) failure by the Company or any of its Sub-
sidiaries to pay final judgments aggregating in
excess of $2.0 million, which judgments are not
paid, discharged or stayed for a period of 60
days;
(viii) failure by the Company to file the cer-
tificate of merger with respect to the Merger on
the date hereof and to take all other steps, if
any, required to effectuate the Merger by
5:00 p.m. New York City time on the Business Day
immediately following the date hereof;
(ix) the Company or any Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
<PAGE>
59
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially
all of its property,
(D) makes a general assignment for the
benefit of its creditors or
(E) shall generally not pay its debts
as such debts becomes due or shall admit in
writing its inability to pay its debts gener-
ally; or
(x) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
or any of its Subsidiaries in an involuntary
case,
(B) appoints a Custodian of the Company
or any of its Subsidiaries for all or sub-
stantially all of its properties, or
(C) orders the liquidation of the Com-
pany or any of its Subsidiaries,
and in each case the order or decree remains
unstayed and in effect for 60 consecutive days;
provided, however, that if the entry of such order
or decree is appealed and dismissed on appeal then
the Event of Default hereunder by reason of the
entry of such order or decree shall be deemed to
have been cured.
(b) For purposes of this Section 6.1, the term 'Cus-
todian' means any receiver, trustee, assignee, liquidator,
sequestrator or similar official charged with maintaining
possession or control over property for one or more creditors.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of
Default relating to the Company and specified in Section
6.1(a)(ix) or (x)) occurs and is continuing, Holders of at
least 25% in aggregate principal amount of the outstanding
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60
Securities may, by written notice to the Company and the Trus-
tee, or the Trustee may, by written notice to the Company,
declare the principal of, premium, if any, and accrued interest
and, if applicable, Additional Payments and Liquidated Damages
and any other amounts due under the Indenture and the Securi-
ties to be due and payable immediately. If an Event of Default
relating to the Company and specified in Section 6.1(a)(ix) or
(x) occurs and is continuing, the principal of, premium, if
any, accrued interest and, if applicable, Additional Payments
and Liquidated Damages on all the Securities shall ipso facto
become and be immediately due and payable without any declara-
tion or other act on the part of the Trustee or any Holder.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment
of principal of or interest, Additional Payments and Liquidated
Damages on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
All rights of action and claims under this Indenture
or the Securities may be enforced by the Trustee even if the
Trustee does not possess any of the Securities or does not pro-
duce any of them in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event
of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by
law.
SECTION 6.4 Control by Majority.
The Holders of a majority in aggregate principal
amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power con-
ferred on it; provided, however, that the Trustee may refuse to
follow any direction that (i) conflicts with law or this Inden-
ture, (ii) the Trustee determines may be unduly prejudicial to
the rights of any other Securityholder, or (iii) may involve
the Trustee in personal liability unless the Trustee has indem-
nification reasonably satisfactory to it in its sole discretion
against any loss or expense caused by its following such direc-
tion; and provided, further, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsis-
tent with such direction.
<PAGE>
61
SECTION 6.5 Limitation on Suits.
Except as set forth in Section 6.6 hereof and in the
following paragraph, no Holder of any of the Securities has any
right to institute any proceeding with respect to this Inden-
ture or any remedy hereunder unless:
(a) such Holder gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate princi-
pal amount of the outstanding Securities have made written
request and offered reasonable indemnity to the Trustee
satisfactory to it to institute such proceedings as
Trustee;
(c) the Trustee does not pursue the remedy addressed
in such request within 30 days after receipt of such
notice and offer; and
(d) the Trustee has not within such 30-day period
received directions inconsistent with such written request
from Holders of a majority in principal amount of the out-
standing Securities.
Such limitations shall not apply, however, following
written notification by the Trustee pursuant to Section 7.8 to
the Company of its resignation as Trustee under the Indenture
and prior to the appointment of a successor Trustee, to the
institution of any proceeding with respect to the Indenture or
any remedy thereunder by the Holders of a majority in principal
amount of outstanding Securities with respect to such Holders'
Securities, provided that upon institution of any proceeding or
exercise of any remedy such Holders provide the Trustee with
prompt written notice.
A Securityholder may not use this Indenture to preju-
dice the rights of another Securityholder or to obtain a pref-
erence or priority over such other Securityholder.
SECTION 6.6 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Inden-
ture, the right of any Holder to receive payment of principal
of and interest and, if applicable, Additional Payments and
Liquidated Damages on a Security, on or after the respective
due dates expressed in the Security (including in connection
with an offer to purchase), or to bring suit for the
<PAGE> 62
enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder.
SECTION 6.7 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i)
or (ii) occurs and is continuing, the Trustee may recover judg-
ment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities (including
any Guarantor) for the whole amount of principal and accrued
interest, Additional Payments and Liquidated Damages remaining
unpaid, together with interest, Additional Payments and Liqui-
dated Damages overdue on principal and, to the extent that pay-
ment of such interest is lawful, interest on overdue install-
ments of interest, Additional Payments and Liquidated Damages,
in each case at the rate of interest specified on the face of
the Securities and such further amounts as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
SECTION 6.8 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file
such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trus-
tee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company or the Subsidiaries of the
Company (or any other obligor upon the Securities), its credi-
tors or its property and shall be entitled and empowered to
collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and
any Custodian in any such judicial proceedings is hereby autho-
rized and directed by each Securityholder to make such payments
to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Securityholders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trus-
tee, its agent and counsel, and any other amounts due the Trus-
tee under Section 7.7. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affect-
ing the Securities or the rights of any Holder thereof, or to
<PAGE>
63
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.9 Priorities.
If the Trustee collects any money pursuant to this
Article Six, it shall pay out such money in the following
order:
First: to the Trustee for amounts due under Sec-
tion 7.7;
Second: to holders of Senior Indebtedness to the
extent required by Article Ten hereof;
Third: to Holders for interest, Additional Pay-
ments and Liquidated Damages accrued on the Secu-
rities, ratably, without preference or priority of
any kind, according to the amounts due and payable
on the Securities for interest, Additional Pay-
ments and Liquidated Damages;
Fourth: to Holders for principal amounts owing
under the Securities, ratably, without preference
or priority of any kind, according to the amounts
due and payable on the Securities for principal;
and
Fifth: to the Company or any other obligor on the
Securities, as their interests may appear, or as a
court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Com-
pany, may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.9.
SECTION 6.10 Undertaking for Costs.
In any suit for the enforcement of any right or rem-
edy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section
6.10 does not apply to a suit by the Trustee, a suit by a
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64
Holder pursuant to Section 6.6, or a suit by Holders of more
than 10% in aggregate principal amount of the outstanding
Securities.
SECTION 6.11 Willful Default.
In the case of an Event of Default occurring by rea-
son of any willful action (or inaction) taken (or not taken) by
or on behalf of the Company with the intention of avoiding pay-
ment of the premium that the Company would have had to pay if
the Company then had elected to redeem the Securities under the
provisions of Article Three above and Section 7 of the Securi-
ties, an equivalent premium shall also become and be immedi-
ately due and payable, to the extent permitted by law, upon the
acceleration of the Securities. If an Event of Default occurs
prior to February 1, 2000 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on redemption of
the Securities prior to February 1, 2000, then, upon accelera-
tion of the Securities, an additional premium shall also become
and be immediately due and payable,to the extent permitted by
law, in an amount equal to 10.0%.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default known to the Trustee 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 their exercise as a pru-
dent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default actually known to the Trustee:
(i) The Trustee need perform only those
duties as are specifically set forth in this
Indenture or the TIA and no others and no implied
covenants or obligations shall be read into this
Indenture against the Trustee.
(ii) In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the
<PAGE>
65
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However,
in the case of any such certificate or opinions
which by any provision hereof are specifically
required to be furnished to the Trustee, the Trus-
tee shall examine such certificates and opinions
to determine whether or not they conform on their
face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) This paragraph does not limit the effect
of paragraph (b) of this Section 7.1.
(ii) The Trustee shall not be liable for any
error of judgment made in good faith by a Trust
Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in accordance with a direction received
by it pursuant to Section 6.2 or 6.4.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability or risk in the performance of any of its
duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that
repayment of such funds or reasonable indemnity satisfactory to
it against such risk or liability is not assured to it.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b),
(c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by law.
(g) Notwithstanding Sections 6.4 and 6.5 or any
other provisions of this Indenture authorizing Holders to
instruct or direct the Trustee, the Trustee may refuse to
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66
perform any duty or act or exercise any right or power unless
it is provided adequate funds to enable it to do so and it
receives reasonable indemnity satisfactory to it against any
loss, liability, fee or expense.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any document reason-
ably believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee shall not
be bound to make any investigation into the facts or mat-
ters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or inves-
tigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally
or by agent or attorney.
(b) Before the Trustee acts or refrains from acting
with respect to any matter contemplated by this Indenture,
it may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to the provisions of Section
12.4 and, if appropriate, Section 12.5. The Trustee shall
be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents
of its selection and shall not be responsible for the mis-
conduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action
it takes or omits to take in good faith and without negli-
gence which it reasonably believes to be authorized or
within its rights or powers conferred upon it by this
Indenture or the TIA.
(e) The Trustee may consult with counsel and the
advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection
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67
from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(f) Notwithstanding Section 7.1(a), the Trustee
shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or
direction of any Holder, unless such Holder shall have
offered the Trustee reasonable indemnity satisfactory to
the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other
capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company, or its Subsidiaries and Affil-
iates with the same rights it would have if it were not Trus-
tee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the valid-
ity or adequacy of this Indenture or the Securities, and it
shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any
statement of the Company or any Guarantor in or with respect to
this Indenture or the Securities, or any statement in the Secu-
rities other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to
the Securities occurs and is continuing and is known to the
Trustee, the Trustee shall mail to each Securityholder notice
of the Default or Event of Default within 60 days after the
occurrence thereof. Except in the case of a Default or an
Event of Default in payment of interest or Additional Payments
or Liquidated Damages on, or the principal of or premium on,
the Securities, the Trustee may withhold the notice to the
Securityholders and shall be protected in doing so if and so
long as a committee of its Trust Officers in good faith deter-
mines that withholding the notice is in the interest of
Securityholders.
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68
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA SS 313(a), within 60
days after December 15 of each year commencing with 1995 and
for as long as there are Securities outstanding hereunder, the
Trustee shall mail to each Securityholder a brief report dated
as of such date that complies with TIA SS 313(a). The Trustee
also shall comply with TIA SS 313(b) and TIA SS 313(c) and (d).
A copy of such report at the time of its mailing to Security-
holders shall be mailed to the Company and filed with the SEC,
if required, and each stock exchange, if any, on which the
Securities are listed.
The Company shall promptly notify the Trustee if the
Securities become listed on any stock exchange and the Trustee
shall comply with TIA SS 313(d).
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee, the Paying
Agent and the Registrar from time to time reasonable compensa-
tion for their respective services rendered hereunder. The
Trustee's, the Paying Agent's and the Registrar's compensation
shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee, the
Paying Agent and the Registrar upon request for all reasonable
out-of-pocket disbursements, expenses and advances incurred or
made by each of them in connection with the performance of its
duties under this Indenture in addition to the compensation for
their respective services under this Indenture. Such expenses
shall include the reasonable compensation, out-of-pocket dis-
bursements and expenses of the Trustee's, the Paying Agent's
and the Registrar's agents and counsel.
The Company shall indemnify the Trustee, the Paying
Agent and the Registrar for, and hold each of them harmless
against, any claim, demand, expense (including but not limited
to reasonable attorneys' fees and expenses), loss or liability
incurred by each of them arising out of or in connection with
the administration of this Indenture and their respective
duties hereunder. Each of the Trustee, the Paying Agent and
the Registrar shall notify the Company promptly of any claim or
threatened claim asserted against it for which it may seek
indemnity. However, failure by the Trustee, the Paying Agent
or the Registrar to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense
unless, in the opinion of the Trustee's counsel, the Trustee
<PAGE>
69
has an interest adverse to the Company or a potential conflict
of interest exists between the Trustee and the Company, in
which case the Trustee may have separate counsel and the Com-
pany shall pay the reasonable fees and expenses of such coun-
sel. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee, the Pay-
ing Agent or the Registrar through the Trustee's, the Paying
Agent's or the Registrar's, as the case may be, own willful
misconduct, negligence or bad faith. The Company need not pay
for any settlement made without its consent, which consent
shall not be unreasonably withheld.
To secure the Company's payment obligations in this
Section 7.7, the Trustee and any retiring Trustee under
Section 7.8 shall be entitled to receive payment in full of all
fees and expenses (including the reasonable fees and expenses
of their respective counsel) prior to any payment to Holders of
the Securities and each shall have a Lien prior to the Securi-
ties on all money or property held or collected by it, in its
capacity as Trustee, except money or property held in trust to
pay principal of or interest, Additional Payments or Liquidated
Damages on particular Securities.
When any of the Trustee, the Paying Agent and the
Registrar incurs expenses or renders services after an Event of
Default specified in Section 6.1(a)(ix) or (x) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying
the Company in writing, such resignation to be effective only
upon the appointment of a successor Trustee and its acceptance
thereof as provided in this Section 7.8. The Holders of a
majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with the Compa-
ny's consent which consent shall not be unreasonably withheld.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insol-
vent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
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70
(c) a receiver or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee),
the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint
a successor Trustee to replace the successor Trustee appointed
by the Company.
A successor Trustee shall deliver a written accep-
tance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor
Trustee (subject to the Lien provided in Section 7.7), the res-
ignation or removal of the retiring Trustee shall become effec-
tive, and the successor Trustee shall have all the rights, pow-
ers and duties of the Trustee under this Indenture. A succes-
sor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 25% in
principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a suc-
cessor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a succes-
sor Trustee.
Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section
7.7 shall continue for the benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation
or national banking association without any further act shall
<PAGE>
71
be the successor Trustee provided such corporation shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satis-
fies the requirements of TIA SS 310(a)(1), (2) and (5). The
Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA
SS 310(b); provided, however, that there shall be excluded from
the operation of TIA SS 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstand-
ing if the requirements for such exclusion set forth in TIA
SS 310(b)(1) are met. The provisions of TIA SS 310 shall apply
to the Company, as obligor of the Securities.
SECTION 7.11 Preferential Collection of
Claims Against Company.
The Trustee shall comply with TIA SS 311(a), excluding
any creditor relationship listed in TIA SS 311(b). A Trustee
who has resigned or been removed shall be subject to TIA
SS 311(a) to the extent indicated therein. The provisions of
TIA SS 311 shall apply to the Company as obligor on the
Securities.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 Termination of Company's Obligations.
The Company may terminate its obligations under the
Securities and this Indenture, except those obligations
referred to in the penultimate paragraph of this Section 8.1,
if all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities which have been
replaced or paid) have been delivered to the Trustee for can-
cellation and the Company has paid all sums payable by it here-
under, or if:
(a) pursuant to Article Three hereof, the Company
shall have given notice to the Trustee and mailed a notice
of redemption to each Holder of the redemption of all of
the Securities under arrangements satisfactory to the
Trustee for the giving of such notice;
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72
(b) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee sat-
isfactory to the Trustee, under the terms of an irrevo-
cable trust agreement in form and substance satisfactory
to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, money or U.S.
Government Obligations maturing as to principal and inter-
est in such amounts and at such times as are sufficient
without consideration of any reinvestment of such inter-
est, to pay principal of and interest and, if applicable,
Additional Payments and Liquidated Damages on (and redemp-
tion premium, if any, on) the outstanding Securities to
maturity or redemption, as the case may be, provided that
the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest
and, if applicable, Additional Payments and Liquidated
Damages with respect to the Securities; and
(c) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent providing for the
termination of the Company's obligations under the Securi-
ties and this Indenture have been complied with.
Notwithstanding the foregoing paragraph, the Compa-
ny's obligations in Sections 2.5, 2.6, 2.7, 2.8, 2.9, 4.1, 4.2,
7.7, 7.8, 8.4 and 8.5 shall survive until the Securities are no
longer outstanding. After the Securities are no longer out-
standing, the Company's obligations in Sections 7.7, 8.4 and
8.5 in respect thereof shall survive.
After such delivery and irrevocable deposit the Trus-
tee upon request and at the expense of the Company shall
acknowledge in writing the discharge of the Company's obliga-
tions under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 8.2 Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option and at any time,
elect to have all of its Obligations discharged upon the satis-
faction of the conditions of this Section 8.2 with respect to
the outstanding Securities ('Legal Defeasance') except for
(i) the rights of Holders of outstanding Securities to receive
payments in respect of the principal of, premium, if any, and
interest and, if applicable, Additional Payments and Liquidated
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73
Damages on such Securities when such payments are due pursuant
to Section 4.1 hereof, (ii) the Company's Obligations with
respect to the Securities concerning issuing temporary Securi-
ties, registration of Securities, mutilated, destroyed, lost or
stolen Securities and the maintenance of an office or agency
for payment and money for security payments held in trust pur-
suant to Sections 2.5 through 2.10 and 4.2 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee,
and the Company's Obligations in connection therewith, pursuant
to the provisions of this Indenture, including Sections 7.7 and
7.8 hereof and (iv) the provisions of this Article Eight. Sub-
ject to compliance with this Section 8.2, the Company may exer-
cise its option under this paragraph (a) notwithstanding the
prior exercise of its option under paragraph (b) below with
respect to the Securities.
(b) The Company may, at its option and at any time,
elect to have the Obligations of the Company released upon the
satisfaction of the conditions of this Section 8.2 with respect
to Article Four (except the Obligations of the Company con-
tained in Sections 4.1, 4.2, 4.3 (with respect to the Company
only), 4.16 and 4.17 thereof) and Article Five ('Covenant
Defeasance') and, thereafter, the Company may omit to comply
with and shall have no liability in respect of any term, condi-
tion or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1, and the
Events of Default specified in Sections 6.1(a)(v) and (vii)
shall no longer be deemed to be Events of Default, but, except
as specified above, the remainder of this Indenture and the
Securities shall be unaffected thereby.
(c) In order to exercise either Legal Defeasance or
Covenant Defeasance:
(i) the Company shall irrevocably deposit
with the Trustee, in trust, for the benefit of the
Holders of the Securities, cash in United States
dollars, U.S. Government Obligations, or a combi-
nation thereof, in such amounts as shall be suffi-
cient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the
principal of, premium, if any, interest and, if
applicable, Additional Payments on, and Liquidated
Damages with respect to, the outstanding
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74
Securities on the stated maturity or on the appli-
cable redemption date, as the case may be, of such
principal or installment of principal of, premium,
if any, or interest or Additional Payments on, or
Liquidated Damages with respect to, the outstand-
ing Securities;
(ii) in the case of Legal Defeasance, the
Company shall have delivered to the Trustee an
opinion of counsel acceptable to the Trustee in
its reasonable judgment confirming that (1) the
Company has received from, or there has been pub-
lished by, the Internal Revenue Service a ruling
or (2) since the date of this Indenture, there has
been a change in the applicable federal income tax
law, in either case to the effect that and based
thereon, such opinion of counsel shall confirm
that the Holders of the outstanding Securities
will not recognize income, gain or loss for fed-
eral income tax purposes as a result of such Legal
Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at
the same times as would have been the case if such
Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the
Company shall have delivered to the Trustee an
opinion of counsel acceptable to the Trustee in
its reasonable judgment confirming that the Hold-
ers of the outstanding Securities will not recog-
nize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the
same amounts, in the same manner and at the same
times as would have been the case if such Covenant
Defeasance had not occurred;
(iv) no Default or Event of Default shall
have occurred and be continuing on the date of
such deposit (except as the result of the incur-
rence of Indebtedness the proceeds of which are
applied to such defeasance) or, insofar as
Sections 6.1(a)(ix) and (x) are concerned, at any
time in the period ending on the 91st day after
the date of such deposit (it being understood that
this condition shall not be deemed satisfied until
the expiration of such period);
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75
(v) such Legal Defeasance or Covenant Defea-
sance shall not result in a breach or violation
of, or constitute a default under any material
agreement or instrument (other than this Inden-
ture) to which the Company or any of its Subsid-
iaries is a party or by which the Company or any
of its Subsidiaries is bound;
(vi) the Company shall have delivered to the
Trustee an opinion of counsel to the effect that
the 91st day following the deposit, the trust
funds will not be subject to the effect of any
applicable Bankruptcy Law;
(vii) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the
deposit was not made by the Company with the
intent of preferring the Holders of Securities
over the other creditors of the Company with the
intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(viii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions prece-
dent provided for relating to the Legal Defeasance
or the Covenant Defeasance have been complied
with.
(d) All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this
paragraph (d), the 'Trustee') pursuant to paragraph (c) above
in respect of the outstanding Securities shall be held in trust
and applied by the Trustee receiving such deposit, in accor-
dance with the provisions of such Securities and this Inden-
ture, to the payment, either directly or through any Paying
Agent (other than the Company) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium, if any, and
interest and, if applicable, Additional Payments and Liquidated
Damages, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
paragraph (c) above or the principal and interest, Additional
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76
Payments and Liquidated Damages received in respect thereof
other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Securities.
Anything in this Section 8.2 to the contrary notwith-
standing, the Trustee shall deliver or pay to the Company from
time to time upon the request, in writing, by the Company any
money or U.S. Government Obligations held by it as provided in
paragraph (c) above which, in the opinion of a nationally rec-
ognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Govern-
ment Obligations deposited with it pursuant to Sections 8.1 and
8.2, and shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture
to the payment of principal of and interest and, if applicable,
Additional Payments and Liquidated Damages on the Securities.
SECTION 8.4 Repayment to Company.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee
shall promptly pay to the Company, upon receipt by the Trustee
of an Officers' Certificate, any excess money, determined in
accordance with Sections 8.2(c)(i) and (d), held by it at any
time. The Trustee and the Paying Agent shall pay to the Com-
pany, upon receipt by the Trustee or the Paying Agent, as the
case may be, of an Officers' Certificate of the Company, any
money held by it for the payment of principal or interest,
Additional Payments and Liquidated Damages that remains
unclaimed for two years after the date upon which such payment
became due; provided, however, that the Trustee and the Paying
Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York
or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein
which shall be at least 30 days from the date of such publica-
tion or mailing any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to money must look solely to
the Company for payment as general creditors unless an appli-
cable abandoned property law designates another Person, and all
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77
liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
SECTION 8.5 Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this
Indenture by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such applica-
tion, then and only then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture
until such time as the Trustee or the Paying Agent, as the case
may be, is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, how-
ever, that if the Company has made any payment of interest,
Additional Payments or Liquidated Damages on or principal of
any Securities because of the reinstatement of their obliga-
tions, the Company shall be subrogated to the rights of the
holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
Notwithstanding Section 9.2, the Company, the Guaran-
tors and the Trustee may amend, waive or supplement this Inden-
ture or the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency,
provided that such amendment or supplement does not
adversely affect the rights of any Holder;
(b) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(c) to comply with any requirements of the SEC in
order to effect or maintain the qualification of the
Indenture under the TIA;
(d) to evidence the succession in accordance with
Article Five hereof of another Person to the Company or a
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78
Guarantor and the assumption by any such successor of the
Obligations of the Company or a Guarantor, as the case may
be, herein, in the Securities and in the Guarantees;
(e) to provide for one or more Subsidiary Guarantors
pursuant to Section 4.17 or for the release of one or more
Subsidiary Guarantors pursuant to Section 11.3;
(f) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities;
(g) to make any change that provides additional
rights or benefits to the Holders; or
(h) to make any other change that does not adversely
affect the legal rights of any Holder under this
Indenture;
provided, however, that in making such change, the Trustee may
rely upon an opinion of counsel stating that such change does
not adversely affect the rights of any Holder.
SECTION 9.2 With Consent of Holders.
Subject to the second paragraph of Section 4.18, Sec-
tion 6.6 and the provisions of this Section 9.2, and as other-
wise provided herein, the Company and the Trustee may amend or
supplement this Indenture or the Securities or a supplemental
indenture with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstand-
ing. Subject to Section 6.6 and the provisions of this Section
9.2, the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in con-
nection with a tender offer or exchange offer for the Securi-
ties) may waive any existing Default or Event of Default or
compliance with any provision of this Indenture or the Securi-
ties without notice to any other Securityholder. However,
without the consent of each Securityholder affected, an amend-
ment, supplement or waiver may not:
(a) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver
of any provision of this Indenture or the Securities;
(b) reduce the principal of or change the fixed
maturity of any Security or alter the provisions with
respect to the redemption of the Securities;
<PAGE>
79
(c) reduce the rate of or change the time for pay-
ment of interest, Additional Payments or Liquidated Dam-
ages on any Security;
(d) waive a Default or Event of Default in the pay-
ment of principal of or premium, if any, or interest on
the Securities (except a rescission of acceleration of the
Securities by the Holders of at least a majority in aggre-
gate principal amount of the Securities and a waiver of
the payment default that resulted from such acceleration);
(e) make any Security payable in money other than
that stated in the Securities;
(f) make any change in the provisions of this Inden-
ture relating to waivers of past Defaults of the right of
Holders of Securities to receive payments of principal of
or premium, if any, or interest, Additional Payments or
Liquidated Damages on the Securities;
(g) waive a redemption payment with respect to any
Security;
(h) make any change in the Obligation of the Company
to make or consummate a Change of Control Offer or modify
any of the provisions or definitions relating thereto in a
manner that adversely affects the rights of any Holder of
the Securities; or
(i) make any change in the amendment and waiver pro-
visions contained in this Article Nine.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the amend-
ment, supplement or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental
indenture.
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80
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or
the Securities shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of that Security or
portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or sub-
sequent Holder may revoke the consent as to his Security or
portion of a Security. Such revocation shall be effective only
if the Trustee receives written notice of revocation before the
date the amendment, supplement or waiver becomes effective.
Notwithstanding the above, nothing in this paragraph shall
impair the right of any Securityholder under SS 316(b) of the
TIA.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the second and third sen-
tences of the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent
to such amendment, supplement or waiver or to revoke any con-
sent previously given, whether or not such Persons continue to
be Holders after such record date. Such consent shall be
effective only for actions taken within 90 days after such
record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the
terms of a Security, the Trustee shall (in accordance with the
specific direction of the Company) request the Holder of the
Security to deliver it to the Trustee. The Trustee shall (in
accordance with the specific direction of the Company) place an
appropriate notation on the Security about the changed terms
and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new
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81
Security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect
the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or
waiver authorized pursuant to this Article Nine if the amend-
ment, supplement or waiver does not adversely affect the
rights, duties or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive,
if requested, a reasonable indemnity satisfactory to it and to
receive, and (subject to Section 7.1) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of any amendment, supplement
or waiver authorized pursuant to this Article Nine is autho-
rized or permitted by this Indenture. The Company may not sign
an amendment until its Board of Directors approves it.
SECTION 9.7 Effect on Senior Indebtedness.
Anything to the contrary contained in this
Article Nine notwithstanding, no amendment of this Indenture
shall materially and adversely affect the rights of the lenders
under the New Credit Agreement without the consent of such
lenders.
ARTICLE X
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior
Indebtedness.
The Company covenants and agrees, and the Trustee and
each Holder of the Securities, by its acceptance thereof, like-
wise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article Ten; and the Trustee
and each Person holding any Note, whether upon original issue
or upon transfer, assignment or exchange thereof, accepts and
agrees that the payment of all Obligations on the Securities by
the Company shall, to the extent and in the manner herein set
forth, be subordinated to the prior payment in cash or Cash
Equivalents when due of the principal of, and premium, if any,
and accrued and unpaid interest on and, subject to
Section 10.13, all other amounts owing in respect of, all
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82
existing and future Senior Indebtedness of the Company; that
the subordination is for the benefit of, and shall be enforce-
able directly by, the holders of Senior Indebtedness, and that
each holder of Senior Indebtedness whether now outstanding or
hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Indebtedness in reliance upon
the covenants and provisions contained in this Indenture and
the Securities.
SECTION 10.2 No Payment on Securities in
Certain Circumstances.
(a) Upon the occurrence of any default beyond the
applicable grace period in the payment of any principal of or
interest on or other amounts due on any Senior Indebtedness of
the Company (a 'Payment Default'), no payment shall be made by
the Company with respect to the Securities unless and until
such Payment Default shall have been cured or waived or shall
have ceased to exist, such Senior Indebtedness has been dis-
charged or paid in full or the benefits of this sentence have
been waived by or on behalf of the holders of such Senior
Indebtedness of the Company, immediately after which the Com-
pany must resume making any and all required payments, includ-
ing missed payments, in respect of its obligations under the
Securities.
(b) Upon (1) the occurrence of a continuing event of
default (other than a Payment Default) relating to Senior
Indebtedness of the Company, as such event of default is
defined therein or in the instrument or agreement under which
it is outstanding, which event of default, pursuant to the
instruments governing such Senior Indebtedness, entitles the
holders (or a specified portion of the holders) of such Senior
Indebtedness to immediately accelerate without further notice
(except such notice as may be required to effect such accelera-
tion) the maturity of such Senior Indebtedness (a 'Non-payment
Default') and (2) the receipt by the Trustee and the Company
from a Senior Representative of written notice (a 'Payment
Blockage Notice') of such occurrence, no payment is permitted
to be made by the Company in respect of the Securities for a
period (a 'Payment Blockage Period') commencing on the date of
receipt by the Trustee of such notice and ending on the ear-
liest to occur of the following events (subject to any blockage
of payments that may then be in effect due to a Payment Default
on Senior Indebtedness of the Company): (w) such Non-payment
Default has been cured or waived or has ceased to exist; (x) a
179-consecutive-day period commencing on the date such written
notice is received by the Trustee has elapsed; (y) such Payment
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83
Blockage Period has been terminated by written notice to the
Trustee from the Senior Representative, whether or not such
Non-payment Default has been cured or waived or has ceased to
exist; and (z) such Senior Indebtedness of the Company has been
discharged or paid in full, immediately after which, in the
case of clause (w), (x), (y) or (z), the Company must resume
making any and all required payments, including missed pay-
ments, in respect of its obligations under the Securities.
Notwithstanding the foregoing, (a) not more than one Payment
Blockage Period may be commenced in any period of 365 consecu-
tive days and (b) no default or event of default with respect
to the Senior Indebtedness of the Company that was the subject
of a Payment Blockage Notice which existed or was continuing on
the date of the giving of any Payment Blockage Notice shall be
or serve as the basis for the giving of a subsequent Payment
Blockage Notice whether or not within a period of 365 consecu-
tive days unless such default or event of default shall have
been cured or waived for a period of at least 120 consecutive
days after such date.
(c) In the event that, notwithstanding the fore-
going, any payment or distribution of assets of the Company
whether in cash, property or securities (other than securities
that are subordinated at least to the same extent as the Secu-
rities are to Senior Indebtedness of the Company), shall be
received by the Trustee or the Holders of Securities at a time
when such payment or distribution is prohibited by this
Section 10.2, such payment or distribution shall be held in
trust for the benefit of the holders of Senior Indebtedness of
the Company and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of the Senior
Indebtedness of the Company remaining unpaid or unprovided for
or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instru-
ments evidencing any of such Senior Indebtedness of the Company
may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness
of the Company held or represented by each, for application to
the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay or to provide for the
payment of all such Senior Indebtedness in full in cash and
Cash Equivalents after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
<PAGE>
84
SECTION 10.3 Payment Over of Proceeds
upon Dissolution, Etc.
(a) Upon any distribution to creditors of the Com-
pany of the assets of the Company in a liquidation or dissolu-
tion of the Company or in a bankruptcy, reorganization, insol-
vency, receivership or similar proceeding relating to the Com-
pany, (i) the holders of all Senior Indebtedness of the Company
then outstanding shall be entitled to be paid in full in cash
or Cash Equivalents (including interest accruing subsequent to
a bankruptcy or insolvency, whether or not such interest is an
allowed claim enforceable against the Company in bankruptcy)
before the Holders are entitled to receive any payment on or
with respect to the Securities; and (ii) the holders of all
Senior Indebtedness of the Company shall be entitled to be paid
in full in cash (including interest accruing subsequent to a
bankruptcy or insolvency, whether or not such interest is an
allowed claim enforceable against the Company in bankruptcy)
before the Holders are entitled to receive any cash payment on
or with respect to the Securities. Until all Senior Indebted-
ness of the Company is paid in full in cash or Cash Equiva-
lents, any distribution to which the Holders would be entitled
but for the subordination provisions shall be made to holders
of Senior Indebtedness of the Company as their interests may
appear, and until all Senior Indebtedness of the Company is
paid in full in cash (or in Cash Equivalents subsequently con-
verted to cash), any cash distribution to which the Holders
would be entitled but for the subordination provisions of this
Article Ten shall be first, exchanged for Cash Equivalents pre-
viously applied to the payment of Senior Indebtedness (and not
subsequently converted to cash), and second, made to holders of
Senior Indebtedness of the Company as their interests may
appear, subject to Section 7.7 hereof.
(b) In the event that, notwithstanding the fore-
going, any payment or distribution of assets of the Company
whether in cash, property or securities (other than securities
that are subordinated at least to the same extent as the Secu-
rities are to Senior Indebtedness of the Company), shall be
received by the Trustee or the Holders of Securities at a time
when such payment or distribution is prohibited by this
Section 10.3, such payment or distribution shall be held in
trust for the benefit of the holders of Senior Indebtedness of
the Company and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of the Senior
Indebtedness of the Company remaining unpaid or unprovided for
or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any
<PAGE>
85
instruments evidencing any of such Senior Indebtedness of the
Company may have been issued, ratably according to the aggre-
gate amounts remaining unpaid on account of the Senior Indebt-
edness of the Company held or represented by each, for applica-
tion to the payment of all Senior Indebtedness of the Company
remaining unpaid to the extent necessary to pay or to provide
for the payment of all such Senior Indebtedness in full in cash
and Cash Equivalents after giving effect to any concurrent pay-
ment or distribution to the holders of such Senior
Indebtedness.
(c) The consolidation of the Company with, or the
merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the convey-
ance or transfer of all or substantially all of its assets, to
another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of
the Senior Indebtedness shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Com-
pany's obligations hereunder in accordance with Article Five
hereof.
SECTION 10.4 Payments May Be Paid
Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in
this Indenture shall prevent (i) the Company, except under the
conditions described in Sections 10.2 and 10.3, from making
payments at any time for the purpose of making payments of
principal of and interest, Additional Payments and Liquidated
Damages on the Securities, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohib-
ited by Section 10.2 or 10.3, the application by the Trustee of
any moneys deposited with it for the purpose of making such
payments of principal of, and interest, Additional Payments and
Liquidated Damages on, the Securities to the Holders entitled
thereto unless at least one Business Day prior to the date upon
which such payment would otherwise become due and payable, the
Trustee shall have received the written notice provided for in
Section 10.2(b) or in Section 10.7. The Company shall give
prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
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SECTION 10.5 Subrogation.
Subject to the payment in full in cash or Cash Equiv-
alents of all Senior Indebtedness, the Holders of the Securi-
ties shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior
Indebtedness until the Securities shall be paid in full; and,
for the purposes of such subrogation, no such payments or dis-
tributions to the holders of the Senior Indebtedness by or on
behalf of the Company or by or on behalf of the Holders by vir-
tue of this Article Ten which otherwise would have been made to
the Holders shall, as between the Company and the Holders of
the Securities, be deemed to be a payment by the Company to or
on account of the Senior Indebtedness, it being understood that
the provisions of this Article Ten are and are intended solely
for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
SECTION 10.6 Obligations of the Company
Unconditional.
Nothing contained in this Article Ten or elsewhere in
this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to
the Holders the principal of and any interest, Additional Pay-
ments and Liquidated Damages on the Securities as and when the
same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders
of the Senior Indebtedness, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on
its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to
the rights of the holders of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders of the
Securities.
SECTION 10.7 Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit
the making of any payment to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article Ten.
Regardless of anything to the contrary contained in this
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87
Article Ten or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Indebtedness or
of any other facts which would prohibit the making of any pay-
ment to or by the Trustee unless and until the Trustee shall
have received notice in writing from the Company or a Senior
Representative therefor specifically setting forth the prohibi-
tion against such payment, and, prior to the receipt of any
such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge to the contrary) that no
such facts exist.
In the event that the Trustee determines in good
faith that any evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article Ten,
the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of
Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of
such Person under this Article Ten, and if such evidence is not
furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such person
to receive such payment.
SECTION 10.8 Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject
to the provisions of Article Seven hereof, and the Holders of
the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganiza-
tion proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, delivered to
the Trustee or the Holders of the Securities, for the purpose
of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness
and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article Ten.
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88
SECTION 10.9 Trustee's Relation to Senior
Indebtedness.
The Trustee and any agent of the Company or the Trus-
tee shall be entitled to all the rights set forth in this
Article Ten with respect to any Senior Indebtedness which may
at any time be held by it in its individual or any other capac-
ity to the same extent as any other holder of Senior Indebted-
ness and nothing in this Indenture shall deprive the Trustee or
any such agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in
this Article Ten, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness.
Whenever a distribution is to be made or a notice
given to holders or owners of Senior Indebtedness, the distri-
bution may be made and the notice may be given to their Senior
Representative, if any.
SECTION 10.10 Subordination Rights Not Impaired
by Acts or Omissions of the Company
or Holders of Senior Indebtedness.
No right of any present or future holders of any
Senior Indebtedness to enforce subordination as provided herein
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or
notice to the Trustee, without incurring responsibility to the
Trustee or the Holders of the Securities and without impairing
or releasing the subordination provided in this Article Ten or
the obligations hereunder of the Holders of the Securities to
the holders of the Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of pay-
ment or extend the time of payment of, or renew or alter,
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89
Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness, or any instrument evidencing the
same or any agreement under which Senior Indebtedness is out-
standing; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for
the payment or collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Com-
pany and any other Person.
SECTION 10.11 Holders Authorize Trustee To
Effectuate Subordination of
Securities.
Each Holder of Securities by its acceptance of them
authorizes and expressly directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effec-
tuate, as between the holders of Senior Indebtedness and the
Holders of Securities, the subordination provided in this
Article Ten, and appoints the Trustee its attorney-in-fact for
such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency, receivership, reorganiza-
tion or similar proceedings or upon an assignment for the bene-
fit of creditors or otherwise) tending towards liquidation of
the business and assets of the Company, the filing of a claim
for the unpaid balance of its Securities and accrued interest,
Additional Payments and Liquidated Damages in the form required
in those proceedings.
If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30
days before the expiration of the time to file such claim or
claims, then the holders of the Senior Indebtedness are, or
their Senior Representative is, hereby authorized to have the
right to file and hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trus-
tee or the holders of Senior Indebtedness or their Senior Rep-
resentative to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee or
the holders of Senior Indebtedness or their Senior Representa-
tive to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 10.12 This Article Ten Not To
Prevent Events of Default.
If the Company fails to make any payment on the Secu-
rities when due or within any applicable grace period, whether
or not such failure is on account of the subordination provi-
sions contained in Article Ten, such failure shall constitute
an Event of Default under this Indenture and shall enable the
Holders to accelerate the maturity of the Securities pursuant
to Section 6.2.
SECTION 10.13 Trustee's Compensation
Not Prejudiced.
Notwithstanding anything contained herein, nothing in
this Article Ten will apply to amounts due to the Trustee pur-
suant to other sections in this Indenture, including, but not
limited to Section 7.7.
ARTICLE XI
GUARANTEE OF SECURITIES
SECTION 11.1 Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein
as the 'Guarantee') to each Holder of a Security authenticated
and delivered by the Trustee and to the Trustee and its succes-
sors and assigns, that: (i) the principal of and interest and,
if applicable, Additional Payments and Liquidated Damages on
the Securities and any other amounts owing under the Indenture,
including all amounts due to the Trustee under Section 7.7,
will be promptly paid in full when due, subject to any appli-
cable grace period, whether at maturity, by acceleration or
otherwise and interest on the overdue principal, if any, and
interest on any interest and, if applicable, Additional Pay-
ments and Liquidated Damages, to the extent lawful, of the
Securities and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time
of payment or renewal of any Securities or of any such other
Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration or otherwise, subject, how-
ever, in the case of clauses (i) and (ii) above, to the
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limitations set forth in Section 11.4. Each Guarantor hereby
agrees that its Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might other-
wise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, present-
ment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and in
this Guarantee. If any Securityholder or the Trustee is
required by any court or otherwise to return to the Company,
any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Guar-
antor, any amount paid by the Company or any Guarantor to the
Trustee or such Securityholder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the
purposes of this Guarantee, notwithstanding any stay, injunc-
tion or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for
the purpose of this Guarantee.
SECTION 11.2 Severability.
In case any provision of this Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 11.3 Release of a Subsidiary Guarantor.
Upon the sale or disposition of all of the Equity
Interests of a Subsidiary Guarantor by the Company, or upon the
consolidation or merger of a Subsidiary Guarantor with or into
any entity or the sale, conveyance, assignment, transfer, lease
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or other disposition of all or substantially all of its proper-
ties and assets to any entity (in each case, other than the
Company or an Affiliate of the Company), such Subsidiary Guar-
antor shall be automatically and unconditionally released from
all obligations under its guarantee of the Securities; provided
that the proceeds received by the Company, or any Subsidiary of
the Company, from such transaction shall be applied pursuant to
the provisions of Section 4.11 above or of Article Three above
and Section 7 of the Securities. The Trustee shall deliver an
appropriate instrument evidencing such release upon receipt of
a request by the Company accompanied by an Officers' Certifi-
cate certifying as to the compliance with this Section 11.3.
Any Guarantor not so released remains liable for the full
amount of principal of and interest and, if applicable, Addi-
tional Payments and Liquidated Damages on the Securities as
provided in this Article Eleven.
SECTION 11.4 Limitation of Subsidiary Guarantor's
Liability.
Notwithstanding anything contained in this
Article Eleven to the contrary, at all times, if any, during
which any Subsidiary Guarantor is the obligor under the New
Credit Agreement or any guarantee related thereto or any other
guarantee of Participating Indebtedness (as defined below) (any
such Subsidiary Guarantor being at all such times (and only at
such times), a 'Participating Guarantor'), each Subsidiary
Guarantor and by its acceptance hereof each Holder hereby con-
firms that it is the intention of all such parties that the
Guarantee by such Subsidiary Guarantor pursuant to its Guaran-
tee not constitute a fraudulent transfer or conveyance for pur-
poses of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal
or state law. To effectuate the foregoing intention, the Obli-
gations of each Subsidiary Guarantor under the Guarantee and
each other guarantee of Participating Indebtedness shall be
limited, collectively, to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of
such Participating Guarantor and after giving effect to any
rights of contribution of such Participating Guarantor in
respect of the obligations of such other Participating Guaran-
tor under its Guarantee or pursuant to Section 11.6 or pursuant
to any other agreement providing for an equitable distribution
among such Participating Guarantors and other Affiliates of the
Company of payments made under guarantees by such parties,
result in the obligations of such Participating Guarantor under
the Guarantee not constituting such fraudulent transfer or con-
veyance. For the purposes of this Section 11.4, 'Participating
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Indebtedness' means, as to any Subsidiary Guarantor, any
Indebtedness of the Company that is guaranteed by such Subsid-
iary Guarantor pursuant to a guaranty (i) the incurrence of
which is not prohibited by the terms of this Indenture or any
agreement governing any other Participating Indebtedness then
outstanding (or, if so prohibited by the terms of this Inden-
ture or any such agreement, is permitted as a result of a con-
sent or waiver thereunder) and (ii) that contains a limitation
of liability and confirmation of intention regarding ratability
of payments on substantially the terms set forth in this sub-
section.
SECTION 11.5 Contribution.
In order to provide for just and equitable contribu-
tion among the Guarantors, the Guarantors agree, among them-
selves, that in the event any payment or distribution is made
by any Guarantor (a 'Funding Guarantor') under the Guarantee,
such Funding Guarantor shall be entitled to a contribution from
all other Guarantors in a pro rata amount based on the Adjusted
Net Assets of each Guarantor (including the Funding Guarantor)
for all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's Obligations with respect
to the Securities or any other Guarantor's Obligations with
respect to the Guarantee. 'Adjusted Net Assets' of such Guar-
antor at any date shall mean the lesser of the amount by which
(x) the fair value of the property of such Guarantor exceeds
the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed
and contingent liabilities), but excluding liabilities under
the Guarantee, of such Guarantor at such date and (y) the pre-
sent fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the prob-
able liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities and after
giving effect to any collection from any Subsidiary of such
Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding debt in respect of the Guaran-
tee, as they become absolute and matured.
SECTION 11.6 Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under the Guarantee
and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and
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any right to participate in any claim or remedy of any Holder
of Securities against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or
security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the pre-
ceding sentence and the Securities shall not have been paid in
full, such amount shall have been deemed to have been paid to
such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated
by this Indenture and that the waiver set forth in this Section
11.6 is knowingly made in contemplation of such benefits.
SECTION 11.7 Agreement To Subordinate.
Each Guarantor agrees, and each Securityholder by
accepting a Security agrees, that all payments pursuant to the
Guarantee of such Guarantor are subordinated in right of pay-
ment to the prior payment in full of all Senior Indebtedness of
such Guarantor, to the same extent and manner that all payments
pursuant to the Securities are subordinated in right of payment
to the prior payment in full of all Senior Indebtedness of the
Company.
SECTION 11.8 Execution of Guarantee.
To evidence its Guarantee to the Securityholders
specified in Section 11.1, each Guarantor hereby agrees that a
notation of such Guarantee shall be endorsed on each Security
authenticated and delivered by the Trustee. Each Guarantor
hereby agrees that its Guarantee set forth in Section 11.1
shall remain in full force and effect notwithstanding any fail-
ure to endorse on each Security a notation of such Guarantee.
Each such Guarantee shall be signed on behalf of each Guarantor
by two Officers, or an Officer and an Assistant Secretary or
one Officer shall sign and one Officer or an Assistant Secre-
tary (each of whom shall, in each case, have been duly autho-
rized by all requisite corporate actions) shall attest to such
Guarantee prior to the authentication of the Security on which
it is endorsed, and the delivery of such Security by the Trus-
tee, after the authentication thereof hereunder, shall
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constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantee may be by manual
or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such
officer who shall have signed the Guarantee shall cease to be
such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Security neverthe-
less may be authenticated and delivered or disposed of as
though the person who signed the Guarantee had not ceased to be
such officer of the Guarantor.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with the duties imposed by the TIA or with another
provision which is required to be included in this Indenture by
the TIA, the imposed duties or the required provision shall
control, as the case may be.
SECTION 12.2 Notices.
Any notice or communication shall be sufficiently
given if in writing and delivered in Person or mailed by first-
class mail or by telecopier, followed by first-class mail, or
by overnight service guaranteeing next-day delivery, addressed
as follows:
(a) if to the Company:
PF ACQUISITION CORP.
90 Linden Place
P.O. Box 681
Rochester, New York 14603
Attention: Treasurer
Telecopier Number: (716) 383-1606
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with copies to:
HOWARD, DARBY & LEVIN
1330 Avenue of the Americas
New York, New York 10019
Attention: Scott F. Smith, Esq.
Telecopier Number: (212) 841-1010
and
HARRIS BEACH & WILCOX
130 East Main Street
Rochester, New York 14604
Attention: Thomas M. Hampson, Esq.
Telecopier Number: (716) 232-6925
(b) if to Pro-Fac:
PRO-FAC COOPERATIVE, INC.
90 Linden Place
P.O. Box 681
Rochester, New York 14603
Attention: Treasurer
Telecopier Number: (716) 383-1606
with copies to:
HOWARD, DARBY & LEVIN
1330 Avenue of the Americas
New York, New York 10019
Attention: Scott F. Smith, Esq.
Telecopier Number: (212) 841-1010
and
HARRIS BEACH & WILCOX
130 East Main Street
Rochester, New York 14604
Attention: Thomas M. Hampson, Esq.
Telecopier Number: (716) 232-6925
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(c) if to the Trustee:
IBJ SCHRODER BANK & TRUST COMPANY
One State Street
New York, New York 10004
Attention: Corporate Trust Administration
Telecopier Number: (212) 425-0542
The Company, Pro-Fac or the Trustee by written notice
to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed to a Security-
holder, including any notice delivered in connection with TIA
SS 310(b), TIA SS 313(c), TIA SS 314(a) and TIA SS 315(b), shall be
mailed to him, first-class postage prepaid, at his address as
it appears on the registration books of the Registrar and shall
be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its suffi-
ciency with respect to other Securityholders. Except for a
notice to the Trustee, which is deemed given only when
received, if a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee
receives it.
SECTION 12.3 Communications by Holders with
Other Holders.
Securityholders may communicate pursuant to TIA
SS 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and any other Person shall have the
protection of TIA SS 312(c).
SECTION 12.4 Officers' Certificate and Opinion of
Counsel as to Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee
(a) an Officers' Certificate in form and substance satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (b) an
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Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of counsel, all such con-
ditions have been complied with and (c) where applicable, a
certificate or opinion by an independent certified public
accountant satisfactory to the Trustee that complies with TIA
SS 314(c).
SECTION 12.5 Statements Required in Officers'
Certificate and Opinion of Counsel.
Each Officers' Certificate and Opinion of Counsel
with respect to compliance with a condition or covenant pro-
vided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provi-
sions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such Offic-
ers' Certificate or rendering such Opinion of Counsel has
read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
contained in such Officers' Certificate or Opinion of
Counsel are based;
(c) a statement that, in the opinion of such Person,
he has made such examination or investigation as is neces-
sary to enable him to express an informed opinion as to
whether or not such covenant or condition has been com-
plied with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been com-
plied with; provided, however, that with respect to mat-
ters of law, an Officers' Certificate may be based upon an
Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion
of Counsel is erroneous, and, provided, further, that with
respect to matters of fact, an Opinion of Counsel may rely
on an Officers' Certificate or certificates of public
officials, unless the signer knows, or in the exercise of
reasonable care should know, that any such document is
erroneous.
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SECTION 12.6 Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance
with the Trustee's customary practices for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may
make reasonable rules for its functions.
SECTION 12.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeed-
ing day that is not a Legal Holiday, and no interest, Addi-
tional Payments or Liquidated Damages shall accrue for the
intervening period.
SECTION 12.8 Governing Law.
The internal laws of the State of New York shall gov-
ern this Indenture, the Securities and the Guarantees without
regard to principles of conflicts of law.
SECTION 12.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder,
member or beneficiary, as such, of the Company or any Guarantor
shall not have any liability for any Obligations of the Company
under the Securities, this Indenture or the Guarantees or for
any claim based on, in respect of or by reason of such Obliga-
tions or their creation. Each Security holder by accepting a
Security waives and releases all such liability.
SECTION 12.10 Successors.
All agreements of the Company in this Indenture and
the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 12.11 Counterparts.
The parties may sign any number of counterparts of
this Indenture. Each such counterpart shall be an original,
but all of them together represent the same agreement.
SECTION 12.12 Severability.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
100
<PAGE>
validity, legality and enforceability of the remaining provi-
sions shall not in any way be affected or impaired thereby, and
a Holder shall have no claim therefor against any party hereto.
SECTION 12.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, and are not to
be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 12.14 Certain Registration Rights.
Any Holder of Securities which are not freely trans-
ferable without registration under the Securities Act (other
than by reason of such Holder being an Affiliate of the Com-
pany) shall have the right to require the Company, at the Com-
pany's option, to (i) file a shelf registration statement under
the Securities Act with respect to the Securities of all such
Holders and use its best efforts to cause such Registration
Statement to be declared effective or (ii) file and use its
best efforts to consummate an offer to exchange, registered
under the Securities Act, for any and all of the Securities a
like aggregate principal amount of Securities, to be issued
under this Indenture, identical to the Securities in all mate-
rial respects. The foregoing rights shall be set forth and
shall be subject to the limitations contained in the Registra-
tion Rights Agreement.
101
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first written
above.
PF ACQUISITION CORP.,
as Issuer
By /s/ Roy A. Myers
Name: Roy A. Myers
Title: General Manager
PRO-FAC COOPERATIVE, INC.,
as Guarantor
By /s/ Roy A. Myers
Name: Roy A. Myers
Title: President
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By /s/ Thomas J. Bogert
Name: Thomas J. Bogert
Title: Assistant Vice President
<PAGE>
Exhibit A
(FACE OF SECURITY)
[Legend if Security is a Transfer Restricted Security]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE 'SECURITIES ACT'), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THERE-
FROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLI-
CABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
TO THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
<PAGE>
PF ACQUISITION CORP.
(to be merged with and into Curtice-Burns Foods, Inc.)
No. $__________
12 1/4% SENIOR SUBORDINATED NOTE DUE 2005
PF ACQUISITION CORP. promises to pay to __________ or
registered assigns the principal sum of ________________
______________ Dollars on February 1, 2005.
Interest Payment Dates: February 1, August 1, commencing
February 1, 1995 and at maturity
Record Dates: January 15 and July 15
Pursuant to the Indenture (defined below), the pay-
ment of principal of and premium, if any, and interest and, if
applicable, Additional Payments and Liquidated Damages on this
Security is unconditionally guaranteed by Pro-Fac Cooperative,
Inc., a New York cooperative corporation ('Pro-Fac'), and such
other Persons as may from time to time execute endorsements of
guarantees hereon (together with Pro-Fac, 'Guarantors').
PF ACQUISITION CORP.
By:
Authorized Signature
By:
Authorized Signature
Dated: _________________
[SEAL]
Certificate of Authentication
This is one of the 12 1/4% Senior Subordinated Notes Due
2005 referred to in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
Authorized Signatory
<PAGE>
2
(REVERSE OF SECURITY)
PF ACQUISITION CORP.
(to be merged with and into Curtice-Burns Foods, Inc.)
12 1/4% SENIOR SUBORDINATED NOTE DUE 2005
1. Interest. PF ACQUISITION CORP., a New York cor-
poration (the 'Company'), promises to pay, until the principal
hereof is paid or made available for payment, interest on the
principal amount set forth on the reverse side hereof at a rate
of 12 1/4% per annum, together with Additional Payments until the
date on which the Exchange Offer is Consummated and Liquidated
Damages as provided in the Registration Rights Agreement.
Interest and, if applicable, Additional Payments and Liquidated
Damages on the Securities will accrue from and including the
most recent date to which interest and, if applicable, Addi-
tional Payments and Liquidated Damages have been paid or, if no
interest and, if applicable, Additional Payments or Liquidated
Damages has been paid, from and including November 3, 1994
through but excluding the date on which interest and, if appli-
cable, Additional Payments and Liquidated Damages are paid.
Interest and, if applicable, Additional Payments and Liquidated
Damages shall be payable in arrears on February 1, August 1 and
at the stated maturity (each an 'Interest Payment Date'), com-
mencing February 1, 1995. Interest and, if applicable, Addi-
tional Payments and Liquidated Damages will be computed on the
basis of a 360-day year of twelve full 30-day months. The Com-
pany shall pay interest on overdue principal and on overdue
interest and, if applicable, Additional Payments and Liquidated
Damages (to the full extent permitted by law) at a rate of 12 1/4%
per annum.
2. Method of Payment. The Company will pay inter-
est and, if applicable, Additional Payments and Liquidated Dam-
ages on the Securities (except defaulted interest) to the Per-
sons who are registered Holders of Securities at the close of
business on the January 15 or July 15 next preceding the Inter-
est Payment Date (or, if any such January 15 or July 15 is not
a business day, at the close of business on the business day
immediately preceding such January 15 or July 15). Holders
must surrender Securities to a Paying Agent to collect princi-
pal payments. The Company will pay principal, premium, if any,
and interest and, if applicable, Additional Payments and Liqui-
dated Damages in money of the United States that at the time of
<PAGE>
3
payment is legal tender for payment of public and private
debts.
3. Paying Agent and Registrar. Initially, IBJ
Schroder Bank & Trust Company (the 'Trustee') will act as Pay-
ing Agent and Registrar. The Company may change any Paying
Agent, Registrar or co-Registrar without notice to Holders.
Neither the Company nor any of its Subsidiaries may act as Pay-
ing Agent, Registrar or co-Registrar.
4. Indenture. The Company issued the Securities
under an Indenture dated as of November 3, 1994 (the 'Inden-
ture') among the Company, Pro-Fac and the Trustee. This Secu-
rity is one of an issue of Securities of the Company issued, or
to be issued, under the Indenture. The terms of the Securities
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code SS 77aaa-77bbbb) as amended from time to time.
The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and such Act for
a statement of them. Capitalized terms used herein and not
otherwise defined have the meanings set forth in the Indenture.
The Securities are unsecured senior subordinated obligations of
the Company limited in aggregate principal amount to
$160,000,000. The Indenture limits, among other things, the
incurrence of Indebtedness and preferred stock by the Company
and its Subsidiaries; the creation of Liens by the Company and
its Subsidiaries; purchases, redemptions, and other acquisi-
tions or retirements of equity interests of the Company and its
Subsidiaries; transactions by the Company and its Subsidiaries
with their Affiliates; and the ability of the Company to merge
with or into another entity. The limitations are subject to a
number of important qualifications and exceptions. The Company
must report to the Trustee annually on compliance with the lim-
itations contained in the Indenture.
5. Guarantees. This Security is initially entitled
to the benefits of the unsecured senior subordinated Guarantee
of Pro-Fac and may thereafter be entitled to certain other
unsecured senior subordinated Guarantees made for the benefit
of the Holders. Reference is hereby made to Article Eleven of
the Indenture and to the Guarantees endorsed on this Security
for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors,
the Trustee and the Holders.
6. Subordination. The Securities and the Guaran-
tees are subordinated in right of payment, in the manner and to
<PAGE>
4
the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Indebtedness of
the Company, whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed. Each
Holder by his acceptance hereof agrees to be bound by such pro-
visions and authorizes and expressly directs the Trustee, on
his behalf, to take such action as may be necessary or appro-
priate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for
such purposes.
7. Optional Redemption. Except as set forth below,
the Securities are not redeemable at the option of the Company
prior to February 1, 2000. At any time on or after February 1,
2000, the Securities will be redeemable, at the option of the
Company, in whole or in part, at the redemption prices
(expressed as percentages of the principal amount) set forth
below, plus accrued interest and, if applicable, Additional
Payments and Liquidated Damages to the redemption date, if
redeemed during the 12-month period beginning February 1, of
the years indicated below:
%
-------
2000............................... 104.594
2001............................... 103.063
2002............................... 101.531
2003 and thereafter................ 100.000
Notwithstanding the foregoing, at any time on or
prior to February 1, 1998, the Company may redeem up to $56.0
million aggregate principal amount of Securities (provided that
at least $104.0 million aggregate principal amount of Securi-
ties remains outstanding immediately after the occurrence of
such redemption), at a redemption price equal to 110.0% of the
principal amount of such Securities, plus accrued interest,
Additional Payments and Liquidated Damages to the date of
redemption, with the proceeds of any offering of Capital Stock
(other than a public offering pursuant to a registration state-
ment on Form S-8 or an offering of Disqualified Stock) or the
proceeds of any Asset Sale generating Net Proceeds in excess of
$20.0 million to the extent such proceeds are not otherwise
applied in accordance with the terms of the Indenture.
8. Notice of Redemption. Notice of redemption will
be mailed at least 30 days but not more than 60 days before the
redemption date to each holder of Securities to be redeemed at
its registered address. On and after the Redemption Date,
unless the Company defaults in making the redemption payment,
<PAGE>
5
interest, Additional Payments and Liquidated Damages cease to
accrue on Securities or portions thereof called for redemption.
9. Offers to Purchase. Sections 4.11 and 4.14 of
the Indenture provide that after an Asset Sale (as defined in
the Indenture), or upon the occurrence of a Change of Control
(as defined in the Indenture), and subject to further limita-
tions contained therein, the Company shall make an offer to
purchase certain amounts of Securities in accordance with the
procedures set forth in the Indenture.
10. Registration Rights. Any Holder of Securities
which are not freely transferable without registration under
the Securities Act (other than by reason of such Holder being
an Affiliate of the Company) shall have the right to require
the Company, at the Company's option, to (i) file a shelf reg-
istration statement under the Securities Act with respect to
the Securities of all such Holders and use its best efforts to
cause such Registration Statement to be declared effective or
(ii) file and use its best efforts to consummate an offer to
exchange, registered under the Securities Act, for any and all
of the Securities a like aggregate principal amount of Securi-
ties, to be issued under this Indenture, identical to the Secu-
rities in all material respects. The foregoing rights shall be
set forth and shall be subject to the limitations contained in
the Registration Rights Agreement.
11. Denominations, Transfer, Exchange. The Securi-
ties are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to
it any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any
Security or portion of a Security selected for redemption, or
transfer or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed.
12. Persons Deemed Owners. The registered holder of
a Security may be treated as the owner of it for all purposes.
13. Unclaimed Money. If money for the payment of
principal or interest, Additional Payments or Liquidated Dam-
ages remains unclaimed for two years, the Trustee or Paying
Agent will pay the money back to the Company at its request.
After that, Holders entitled to the money must look to the
<PAGE>
6
Company for payment as general creditors unless an 'abandoned
property' law designates another Person.
14. Amendment, Supplement, Waiver. The Company and
the Trustee may, without the consent of the holders of any out-
standing Securities, amend, waive or supplement the Indenture
or the Securities for certain specified purposes, including,
among other things, curing ambiguities, defects or inconsisten-
cies, maintaining the qualification of the Indenture under the
Trust Indenture Act of 1939 or making any other change that
does not adversely affect the rights of any Holder. Other
amendments and modifications of the Indenture or the Securities
may be made by the Company and the Trustee with the consent of
the holders of not less than a majority of the aggregate prin-
cipal amount of the outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particu-
lar Securities to be affected.
15. Successor Corporation. When a successor corpo-
ration assumes all the obligations of its predecessor under the
Securities and the Indenture and the transaction complies with
the terms of Article Five of the Indenture, the predecessor
corporation will be released from those obligations.
16. Defaults and Remedies. Events of Default are
set forth in the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default other than an Event of
Default specified in Section 6.1(a)(ix) or (x) of the Indenture
occurs and is continuing, then the Holders of not less than 25%
in aggregate principal amount of the outstanding Securities
may, or the Trustee may, declare the principal of, premium, if
any, plus accrued interest, Additional Payments and Liquidated
Damages, if any, to be due and payable immediately. If an
Event of Default specified in Section 6.1(a)(ix) or (x) of the
Indenture occurs and is continuing, the principal of, premium,
if any, and accrued interest and, if applicable, Additional
Payments and Liquidated Damages on all of the Securities shall
ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any
Holder. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee
may require reasonable indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exer-
cise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a
default in payment of principal or interest, Additional
<PAGE>
7
Payments or Liquidated Damages) if it determines that withhold-
ing notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
17. Trustee Dealings with Company. The Trustee, in
its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
18. No Recourse Against Others. A director, offi-
cer, employee, member or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any Obliga-
tions of the Company under the Securities, the Guarantees or
the Indenture or for any claim based on, in respect of or by
reason of, such Obligations or their creation. Each
Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consid-
eration for the issue of the Securities and the Guarantees.
19. Discharge. The Company's obligations pursuant
to the Indenture will be discharged, except for certain speci-
fied obligations, subject to the terms of the Indenture, upon
the payment of all the Securities or upon the irrevocable
deposit with the Trustee of money or U.S. Government Obliga-
tions sufficient to pay when due principal or the interest,
Additional Payments and Liquidated Damages on the Securities to
maturity or redemption, as the case may be.
20. Authentication. This Security shall not be
valid until the Trustee manually signs the certificate of
authentication on the other side of this Security.
21. Abbreviations. Customary abbreviations may be
used in the name of a Securityholder or an assignee, such as:
TEN COM (= tenants in common), TENANT (= tenants by the entire-
ties), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
22. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company will cause CUSIP numbers to be printed
on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be
placed only on the other identification numbers printed hereon.
<PAGE>
8
[The Transferor Certificate (Exhibit B to the Inden-
ture) will be attached to the Senior Subordinated Note.]
The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture.
Requests may be made to:
PF ACQUISITION CORP.
90 Linden Place
P.O. Box 681
Rochester, New York 14603
Attention: Treasurer
<PAGE>
9
[FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE]
For value received, each Guarantor (which term
includes any successor Person under the Indenture) has, jointly
and severally, unconditionally guaranteed, to the extent set
forth in the Indenture and subject to the provisions in the
Indenture, that (i) the principal of and interest and, if
applicable, Additional Payments and Liquidated Damages on the
Securities will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by accelera-
tion or otherwise and interest on the overdue principal, if
any, and interest and, if applicable, Additional Payments and
Liquidated Damages on any interest, to the extent lawful, of
the Securities and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time
of payment or renewal of any Securities or of any such other
Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration or otherwise.
The Obligations of the Guarantors to the Holders of
Securities and to the Trustee pursuant to the Guarantee are
expressly set forth in Article Eleven of the Indenture and ref-
erence is hereby made to the Indenture for the precise terms of
the Guarantee. The Indebtedness evidenced by the Guarantee is,
to the extent and in the manner provided in the Indenture, sub-
ordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, as defined in the Inden-
ture, of the Guarantors, and this Guarantee is issued subject
to such provisions. Each Holder of a Security, by accepting
the same, (i) agrees to and shall be bound by such provisions,
(ii) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate
to effectuate such subordination as provided in the Indenture
and (iii) appoints the Trustee as attorney-in-fact of such
Holder for such purpose.
<PAGE>
10
This Guarantee shall not be valid until the Trustee
manually signs the certificate of authentication on the Secu-
rity upon which this Guarantee is noted.
Guarantor:
PRO-FAC COOPERATIVE, INC.
By: ________________________
Name:
Title:
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________
(Insert assignee's social security or tax ID number) __________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type assignee's name, address and zip code) and irre-
vocably appoint
_______________________________________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
_______________________________________________________________
Date:______________ Your signature:____________________________
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:___________________________________________
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the
Company pursuant to Section 4.11 or 4.14 of the Indenture,
check the Box: [ ]
If you wish to have a portion of this Security pur-
chased by the Company pursuant to Section 4.11 or 4.14 of the
Indenture, state the amount you wish to have purchased:
$_____________
Date: ________________ Your Signature: ____________________
Tax Identification No.:______________
(Sign exactly as your name appears on the other side of this
Security)
Signature Guarantee: _______________________
<PAGE>
Exhibit B
[FORM OF TRANSFEROR CERTIFICATE]
[Letterhead of Selling Holder or U.S. Registered
Broker-Dealer Acting in Such Person's Behalf]
PF Acquisition Corp. Date: _______________
(to be merged with and into
Curtice-Burns Foods, Inc.)
90 Linden Place
P.O. Box 681
Rochester, New York 14603
Attention: Treasurer
Dear Ladies and Gentlemen:
This certificate relates to $__________ aggregate
principal amount of % Senior Subordinated Notes Due 2005
(the 'Senior Subordinated Notes'), of PF Acquisition Corp., a
New York corporation (the 'Company'), held in:* [ ] book-
entry or [ ] definitive form by ___________________ (the
'Transferor').
I. The Transferor:*
[ ] has requested the Trustee by written order to
deliver in exchange for its beneficial interest in the Global
Security held by the depository a Security or Securities in
definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in
such Global Security (or the portion thereof indicated above);
or
[ ] has requested the Trustee by written order to
exchange or register the transfer of a Security or Securities.
II. In connection with such request and in respect
of each such Security, the Transferor does hereby certify that
the Transferor is familiar with the Indenture relating to the
above captioned Securities and as provided in Section 2.6 of
<PAGE>
2
such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below)
because:*
[ ] Such Security is being acquired for the Trans-
feror's own account, without transfer (in satisfaction of Sec-
tion 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a 'quali-
fied institutional buyer' (as defined in Rule 144A under the
Securities Act of 1933, as amended (the 'Securities Act')) in
reliance on Rule 144A (in satisfaction of Section
2.6(a)(ii)(B), Section 2.6(b)(i) or Section 2.6(d)(i)(B) of the
Indenture) or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (in satisfac-
tion of Section 2.6(a)(ii)(B) or Section 2.6(d)(i)(B) of the
Indenture).
[ ] Such Security is being transferred in accordance
with Rule 144 under the Securities Act, or pursuant to an
effective registration statement under the Securities Act (in
satisfaction of Section 2.6(a)(ii)(B) or Section 2.6(d)(i)(B)
of the Indenture).
[ ] Such Security is being transferred in reliance
on and in compliance with an exemption from the registration
requirements of the Securities Act, other than Rule 144A, 144
or Rule 904 under the Securities Act. An Opinion of Counsel to
the effect that such transfer does not require registration
under the Securities Act accompanies this Certificate (in sat-
isfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of
the Indenture).
_________________________________
[INSERT NAME OF TRANSFEROR]
By: _____________________________
Dated: _________________
<PAGE>
Exhibit C
[Additional Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCES-
SOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURI-
TIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSI-
TORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUM-
STANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REP-
RESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
- --------------------------------------------------------------------
CURTICE-BURNS FOODS, INC.
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
and
IBJ SCHRODER BANK & TRUST COMPANY, as Trustee
_______________
FIRST SUPPLEMENTAL INDENTURE
dated as of November 3, 1994
to
INDENTURE
dated as of November 3, 1994
among
PF ACQUISITION CORP., as Issuer,
and
PRO-FAC COOPERATIVE, INC., as Guarantor,
and
IBJ SCHRODER BANK & TRUST COMPANY, as Trustee
_______________
$160,000,000
12 1/4% Senior Subordinated Notes due 2005
- --------------------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE dated as of November 3,
1994 (the 'First Supplemental Indenture') among CURTICE-BURNS
FOODS, INC., a New York corporation (the 'Company'), certain
subsidiaries of the Company listed on the signature pages
hereof (collectively, the 'Designated Subsidiaries') and IBJ
SCHRODER BANK & TRUST COMPANY, as Trustee (the 'Trustee').
WHEREAS, PF Acquisition Corp., a New York corporation
('PFAC'), and Pro-Fac Cooperative, Inc., a New York cooperative
corporation ('Pro-Fac'), have heretofore executed and delivered
to the Trustee an Indenture dated as of November 3, 1994 (the
'Indenture') providing for the issuance of $160,000,000 aggre-
gate principal amount of 12 1/4% Senior Subordinated Notes due
2005 (the 'Notes') of PFAC and of the related guarantee (the
'Guarantee') of Pro-Fac; and
WHEREAS, pursuant to an Agreement and Plan of Merger
dated as of September 27, 1994 among the Company, PFAC and Pro-
Fac, PFAC is merging with and into the Company, with the Com-
pany continuing as the surviving corporation (the 'Merger')
and, in connection therewith, the Company is assuming all of
PFAC's debts, liabilities, duties and obligations, including
PFAC's Obligations in respect of the Notes and under the Inden-
ture; and
WHEREAS, in connection with the Merger and related
transactions, the Designated Subsidiaries have guaranteed cer-
tain Senior Indebtedness of the Company and, as a consequence
thereof, are required, pursuant to Section 4.17 of the Inden-
ture, to become Subsidiary Guarantors under the Indenture; and
WHEREAS, the Company desires by this First Supplemen-
tal Indenture, pursuant to and as contemplated by Sections 5.1
and 9.1 of the Indenture, to expressly assume the covenants,
agreements and undertakings of PFAC in respect of the Notes and
under the Indenture; and
WHEREAS, the Designated Subsidiaries desire by this
First Supplemental Indenture, pursuant to and as contemplated
by Sections 4.17 and 9.1 of the Indenture, to become Subsidiary
Guarantors under the Indenture; and
WHEREAS, the execution and delivery of this First
Supplemental Indenture have been authorized by resolutions of
the respective Boards of Directors of the Company and the Des-
ignated Subsidiaries; and
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WHEREAS, all conditions and requirements necessary to
make this First Supplemental Indenture a valid, binding and
legal instrument in accordance with its terms have been per-
formed and fulfilled by the parties hereto and the execution
and delivery thereof have been in all respects duly authorized
by the parties hereto;
NOW, THEREFORE, in consideration of the above prem-
ises, each party agrees, for the benefit of the others and for
the equal and ratable benefit of the Holders of the Securities,
as follows:
ARTICLE XIII
ASSUMPTION OF OBLIGATIONS OF PFAC
SECTION 13.1 Assumption. The Company hereby expressly
and unconditionally assumes each and every covenant, agreement
and undertaking of PFAC in the Indenture as if the Company had
been the original Issuer of the Notes, and also hereby
expressly and unconditionally assumes each and every covenant,
agreement and undertaking in each Note outstanding on the date
of this First Supplemental Indenture.
SECTION 13.2 Note. To evidence its assumption of the
Obligations of PFAC in respect of the Notes and under the
Indenture as set forth in Section 1.1 hereof, the Company
shall, simultaneously with the Consummation of the Exchange
Offer, execute and deliver a Note in the form set forth as
Exhibit A to the Indenture, but identifying the Company as the
Issuer.
ARTICLE XIV
SUBSIDIARY GUARANTORS
SECTION 14.1 Guarantees. Each Designated Subsid-
iary hereby guarantees the Obligations of the Company in
respect of the Notes and of the Indenture and agrees to become
a Subsidiary Guarantor under the Indenture as if each such Des-
ignated Subsidiary had been an original Guarantor of the Obli-
gations of the Company in respect of the Notes and under the
Indenture.
SECTION 14.2 Notation on Security Relating to Guar-
antee. To evidence its guarantee of the Obligations of the
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Company as set forth in Section 2.1 hereof, each Designated
Subsidiary shall, simultaneously with the execution and deliv-
ery of this First Supplemental Indenture, execute and deliver
an endorsement in the form set forth in Exhibit A to the Inden-
ture, but identifying such Designated Subsidiary as Guarantor.
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1 Terms Defined. For all purposes of
this First Supplemental Indenture, except as otherwise defined
or unless the context otherwise requires, terms used in capi-
talized form in this First Supplemental Indenture and defined
in the Indenture have the meanings specified in the Indenture.
SECTION 15.2 Indenture. Except as amended hereby,
the Indenture and the Securities are in all respects ratified
and confirmed and all the terms shall remain in full force and
effect.
SECTION 15.3 Governing Law. THIS FIRST SUPPLEMEN-
TAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 15.4 Successors. All agreements of the
Company in this First Supplemental Indenture and the Securities
shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 15.5 Multiple Counterparts. The parties
may sign multiple counterparts of this First Supplemental
Indenture. Each signed counterpart shall be deemed an origi-
nal, but all of them together represent the same agreement.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed as of the
date first written above.
CURTICE-BURNS FOODS, INC.
By: /s/ Roy A. Myers
Name: Roy A. Myers
Title: Chief Executive Officer
HUSMAN SNACK FOODS COMPANY, INC.
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
FINGER LAKES PACKAGING COMPANY, INC.
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
CURTICE-BURNS MEAT SNACKS, INC.
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
CURTICE-BURNS EXPRESS, INC.
By: /s/ Roy A. Myers
Name: Roy A. Myers
Title: President
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PRO-FAC HOLDING COMPANY OF IOWA, INC.
By: /s/ Roy A. Myers
Name: Roy A. Myers
Title: Vice President
SEASONAL EMPLOYERS, INC.
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
QUALITY SNAX OF MARYLAND, INC.
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
NALLEY'S CANADA LIMITED
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
KENNEDY ENDEAVORS, INCORPORATED
By: /s/ William D. Rice
Name: William D. Rice
Title: Vice President
IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
By: /s/ Thomas J. Bogert
Name: Thomas J. Bogert
Title: Assistant Vice President
