<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM T-3
FOR APPLICATIONS FOR QUALIFICATION
OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
AMERICOLD CORPORATION
(Name of applicant)
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
(Address of principal executive offices)
----------------------------------
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
15% Senior Subordinated Up to $115,000,000
Debentures Due 2007 aggregate principal amount
----------------------------------
Approximate date of proposed public offering: July 1, 1995
Name and address of agent for service:
Joel M. Smith
Senior Vice President and
Chief Financial Officer
Americold Corporation
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
With a copy to:
Thomas P. Palmer, Esq.
Tonkon, Torp, Galen, Marmaduke & Booth
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204-8779
----------------------------------
The obligor hereby amends this application for qualification on
such date or dates as may be necessary to delay its effectiveness
until (i) the 20th day after the filing of a further amendment
which specifically states that it shall supersede this amendment,
or (ii) such date as the Securities and Exchange Commission,
acting pursuant to Section 307(c) of the Act, may determine upon
the written request of the obligor.<PAGE>
GENERAL
1. GENERAL INFORMATION. Furnish the following as to the
applicant:
(a) Form of organization.
A corporation.
(b) State or other sovereign power under the laws of which
organized.
Oregon.
2. SECURITIES ACT EXEMPTION APPLICABLE. State briefly the
facts relied upon by the applicant as a basis for the claim that
registration of the indenture securities under the Securities Act
of 1933 is not required.
Americold Corporation ("Americold" or the "Company") is
a debtor-in-possession under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") in a bankruptcy case entitled
IN RE AMERICOLD CORPORATION pending in the United States
Bankruptcy Court for the District of Oregon. Americold filed a
plan of reorganization (the "Plan") pursuant to Section 1121 of
the Bankruptcy Code and filed a motion for approval of the Plan.
The Plan provides, among other things, for the issuance of 15%
Senior Subordinated Debentures due 2007 (the "Subordinated
Debentures") pursuant to the indenture to which this application
relates (the "Indenture"). Under the Plan, the Subordinated
Debentures will be issued to certain creditors of Americold in
exchange for their claims against the Company. Section
1145(a)(1) of the Bankruptcy Code provides that Section 5 of the
Securities Act of 1933 (the "Securities Act") does not apply to
the offer or sale under a plan of reorganization of a security of
the debtor in exchange for a claim against, an interest in or a
claim for an administrative expense in, the case concerning the
debtor, or principally in such exchange and partly for cash or
property. Accordingly, registration of the Subordinated
Debentures under the Securities Act is not required.
AFFILIATIONS
3. AFFILIATES. Furnish a list or diagram of all
affiliates of the applicant and indicate the respective
percentage of voting securities or other bases of control.
Americold holds 50 percent of the voting stock of
Logistics Resource Management, Inc., an Oregon corporation. In
addition, Americold owns 100 percent of the stock of Americold
Services Corporation, a Delaware corporation, and 100 percent of
the stock of Americold Acquisition Co., a Delaware corporation.
The following shareholders may be deemed to be
"affiliates" of Americold by virtue of their ownership of the
Company's stock as of May 1, 1995. Reference is made to Item 5,
below, including the footnotes thereto, for information
concerning the extent and nature of such ownership.
KIA III-Americold, Inc. L.P.
Kelso Investment Associates II, L.P.
Kelso Equity Partners, L.P.
Kelso & Company
Joseph S. Schuchert
Frank T. Nickell
George E. Matelich
Thomas R. Wall, IV
The Northwestern Mutual Life Insurance Company
New York Life Insurance Company
Certain directors or executive officers of Americold
may also be deemed to be "affiliates" of the Company by virtue of
their positions. Reference is made to Item 4, below, for
information concerning the identity of such directors and
executive officers.
Americold anticipates no change in the list of
potential "affiliates" up to the effective date of the Plan.
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. List the names
and complete mailing addresses of all directors and executive
officers of the applicant and all persons chosen to become
directors or executive officers. Indicate all offices with the
applicant held or to be held by each person named.
<TABLE>
<CAPTION>
NAME ADDRESS OFFICE
- ---- ------- ------
<S> <C> <C>
Ronald H. Dykehouse 7007 S.W. Cardinal Lane Chairman of the Board, President,
Suite 135 Chief Executive Officer and Director
Portland, OR 97224
Joel M. Smith 7007 S.W. Cardinal Lane Senior Vice President, Chief Financial
Suite 135 Officer and Director
Portland, OR 97224
John P. LeNeveu 7007 S.W. Cardinal Lane Senior Vice President, Operations and
Suite 135 Sales
Portland, OR 97224
F. Stanley Sena 7007 S.W. Cardinal Lane Senior Vice President, Administration
Suite 135 and Technical Services
Portland, OR 97224
J. Roy Coxe 7007 S.W. Cardinal Lane Senior Vice President, Logistics
Suite 135
Portland, OR 97224
Ronald A. Nickerson 7007 S.W. Cardinal Lane Vice President, Operations
Suite 135
Portland, OR 97224
Lon V. Leneve 7007 S.W. Cardinal Lane Vice President, Treasurer and Secretary
Suite 135
Portland, OR 97224
Frank Edelstein 620 Newport Center Drive Director
Suite 1400
Newport Beach, CA 92660
George E. Matelich Kelso & Company Director
350 Park Avenue
21st Floor
New York, NY 10022
James C. Pigott Pigott Enterprises Director
1405 - 42nd Avenue East
Seattle, WA 98112
William A. Marquard Eaglestone Farm Director
2199 Maysville Road
Carlisle, KY 40311
</TABLE>
5. PRINCIPAL OWNERS OF VOTING SECURITIES. Furnish the
following information as to each person owning 10 percent or more
of the voting securities of the applicant.
As of May 1, 1995:
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
NAME AND COMPLETE TITLE OF AMOUNT VOTING SECURITIES
MAILING ADDRESS CLASS OWNED OWNED OWNED
<S> <C> <C> <C>
KIA III-Americold, Inc. L.P. Common Stock 2,000,000 41.1%
("KIA III")
c/o Kelso & Company
350 Park Avenue, 21st Floor
New York, NY 10017
Kelso Investment Associates II, Common Stock 500,000 10.3%
L.P.<F1> ("KIA II")
c/o Kelso & Company
350 Park Company, 21st Floor
New York, NY 10017
Kelso Equity Partners, L.P.<F1> Common Stock 70,000 1.4%
("Kelso Equity")
c/o Kelso & Company
350 Park Avenue, 21st Floor
New York, NY 10017
Joseph S. Schuchert<F1> Common Stock 2,593,600 53.3%
350 Park Avenue, 21st Floor
New York, NY 10017
Frank T. Nickell<F1> Common Stock 2,593,600 53.3%
350 Park Avenue, 21st Floor
New York, NY 10017
George E. Matelich<F1> Common Stock 2,593,600 53.3%
350 Park Avenue, 21st Floor
New York, NY 10017
Thomas R. Wall, IV<F1> Common Stock 2,593,600 53.3%
350 Park Avenue, 21st Floor
New York, NY 10017
The Northwestern Mutual Life Common Stock 500,000 10.3%
Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
New York Life Insurance Company Common Stock 330,000 6.8%
51 Madison Avenue
New York, NY 10010
New York Life Insurance and Common Stock 250,000 5.1%
Annuity Corporation
51 Madison Avenue
New York, NY 10010
Ronald H. Dykehouse<F2> Common Stock 117,900 2.4%
7007 S.W. Cardinal Lane, Suite 135
Portland, OR 97224
Joel M. Smith<F2> Common Stock 38,278 0.8%
7007 S.W. Cardinal Lane, Suite 135
Portland, OR 97224
John P. LeNeveu<F2> Common Stock 14,000 0.3%
7007 S.W. Cardinal Lane, Suite 135
Portland, OR 97224
F. Stanley Sena<F2> Common Stock 38,279 0.8%
7007 S.W. Cardinal Lane, Suite 135
Portland, OR 97224
J. Roy Coxe<F2> Common Stock 6,000 0.1%
7007 S.W. Cardinal Lane, Suite 135
Portland, OR 97224
Frank Edelstein Common Stock --- ---
The Gordon + Morris Group
Suite 1400
620 Newport Center Drive
Newport Beach, CA 92660
James C. Pigott Common Stock --- ---
1405-42nd Avenue East
Seattle, WA 98112
William A. Marquard Common Stock --- ---
Eaglestone Farm
2199 Maysville Road
Carlisle, KY 40311
All directors and officers
as a group (11 persons)<F1><F2> Common Stock 284,095 5.8%
Management Group (30 persons)<F2> Common Stock 557,556 11.5%
_________________
<FN>
<F1> Messrs. Schuchert, Nickell, Matelich and Wall may be deemed
to share beneficial ownership of shares owned of record by
KIA III, KIA II, Kelso Equity and Kelso & Company (Kelso &
Company owns 23,600 shares) by virtue of their status as the
general partners of Kelso Partners III, L.P. (the general
partner of KIA III), Kelso Partners II, L.P. (the general
partner of KIA II) and Kelso Equity and the controlling
stockholders and officers of Kelso & Company. Messrs.
Schuchert, Nickell, Matelich and Wall share investment and
voting powers with respect to securities owned by the
foregoing entities. Messrs. Schuchert, Nickell, Matelich,
and Wall disclaim beneficial ownership of such securities
(other than the 23,600 shares owned by Kelso & Company).
<F2> Includes the following numbers of shares of common stock
that may be acquired within 60 days after May 1, 1995
through the exercise of stock options granted pursuant to
the Company's Option Plan: 100,000 shares for Mr.
Dykehouse; 8,278 shares for Mr. Smith; 12,000 shares for Mr.
LeNeveu; 8,279 shares for Mr. Sena; 6,000 shares for Mr.
Coxe; 145,595 shares for all directors and officers as a
group; and 207,656 shares for the Management Group.
</FN>
</TABLE>
Americold anticipates no change in the identity of the
principal owners of its voting securities up to the effective
date of the Plan.
<PAGE>
UNDERWRITERS
6. UNDERWRITERS. Give the name and complete mailing
address of (a) each person who, within three years prior to the
date of filing the application, acted as an underwriter of any
securities of the obligor which were outstanding on the date of
filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each
person specified in (a), give the title of each class of
securities underwritten.
(a) Name and Mailing Address Title of Securities
------------------------ -------------------
The First Boston Corporation 11 1/2% First
Park Avenue Plaza Mortgage Bonds,
55 East 52nd Avenue Series B,
New York, NY 10055 Due 2005
(b) None.
CAPITAL SECURITIES
7. CAPITALIZATION. (a) Furnish the following information
as to each authorized class of securities of the applicant.
PRIOR TO PLAN
-------------
COL. A COL. B COL. C
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
- -------------- ----------------- ------------------
Common Stock 10,000,000 4,860,934
Series A Variable Rate
Cumulative Preferred
Stock ("Preferred
Stock") 1,000,000 52,936
11.45% First Mortgage
Bonds, Series A, Due
2002 150,000,000 150,000,000
11 1/2% First Mortgage
Bonds, Series B, Due
2005 176,250,000 176,250,000
11% Senior Subordinated
Debentures Due 1997 115,000,000 112,822,073
AS OF THE EFFECTIVE DATE OF THE PLAN
------------------------------------
COL. A COL. B COL. C
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
- -------------- ----------------- ------------------
Common Stock 10,000,000 4,860,934
Series A Variable
Cumulative Preferred
Stock ("Preferred
Stock") 1,000,000 52,936
11.45% First Mortgage
Bonds, Series A, Due
2002 150,000,000 140,000,000
11 1/2% First Mortgage
Bonds, Series B, Due
2005 176,250,000 176,250,000
15% Senior Subordinated
Debentures Due 2007 115,000,000 115,000,000
(b) Give a brief outline of the voting rights of each
class of voting securities referred to in paragraph (a) above.
COMMON STOCK: Holders of outstanding shares of common
stock are entitled to one vote for each share held of record on
all matters submitted to a vote of shareholders.
PREFERRED STOCK: Holders of outstanding shares of
Preferred Stock do not have the right to vote on any matter
submitted to the shareholders, with certain exceptions as
provided in the Articles of Incorporation of the Company and as
required by Chapter 60 of the Oregon Revised Statutes. Such
exceptions relate generally to any proposed change in the rights
of the Preferred Stock, creation of new classes of stock ranking
senior to the Preferred Stock, approval of certain special
corporate actions and certain amendments to the Articles of
Incorporation, if the holders of the Preferred Stock will be
entitled to vote as a separate voting group, or relate generally
to approval of a plan of merger or share exchange, if such plan
contains a provision which, if contained in a proposed amendment
to the Articles of Incorporation, would require action by one or
more separate voting groups for its approval.
<PAGE>
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point
the analysis of indenture provisions required under section
305(a)(2) of the Act.
The following analysis of certain provisions of the
Indenture does not purport to be complete and is subject to, and
is qualified in its entirety by reference to, the Indenture,
including the definitions of certain terms it contains, which
Indenture is attached hereto as Exhibit T3C and incorporated
herein by this reference. The capitalized terms used below are
used as defined in the Indenture.
EVENTS OF DEFAULT
Events of Default are described in the Indenture as:
(i) a default in the payment of interest on any Subordinated
Debentures when due and payable, continuing for a period of 30
days, (ii) a default in the payment of the principal of any
Subordinated Debentures when the same becomes due and payable at
its stated maturity, upon redemption, upon declaration or
otherwise, (iii) the failure by the Company to comply with the
requirements for consolidation, merger or conveyance, transfer or
lease of all or substantially all the Company's assets to a
successor corporation, (iv) the failure by the Company to comply
for 30 days after notice with any of its covenants or agreements
in the Subordinated Debentures or the Indenture (other than those
described in clause (i), (ii) or (iii) of this paragraph),
(v) debt of the Company or any subsidiary is not paid within any
applicable grace period after final maturity or is accelerated by
the holders thereof because of a default and the total amount of
such debt unpaid or accelerated exceeds $5.0 million or its
foreign currency equivalent and such failure continues for 10
days after notice (the "cross acceleration provision"),
(vi) certain events of bankruptcy, insolvency or reorganization
of the Company or a subsidiary (the "bankruptcy provisions"), or
(vii) any judgment or decree for the payment of money in excess
of $5.0 million is rendered against the Company and is not
discharged and either (A) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or
(B) there is a period of 60 days following such judgment or
decree during which such judgment or decree is not discharged,
waived or the execution thereof stayed and, in the case of (B),
such default continues for 10 days after notice (the "judgment
default provision"). However, a default under clause (iv), (v)
or (vii)(B) above will not constitute an Event of Default until
the Trustee or the holders of 25% in principal amount of the
outstanding Subordinated Debentures notify the Company of the
default and the Company does not cure such default within the
time specified after receipt of such notice.
The Indenture provides that if a default occurs and is
continuing and is known to the Trustee, the Trustee must mail to
each holder of the Subordinated Debentures notice of the Default
or Event of Default within 90 days after it occurs. Except in
the case of a Default in the payment of principal of, premium (if
any) or interest on any Subordinated Debentures, the Trustee may
withhold notice if and so long as a committee of its trust
officers determines that withholding notice is in the interest of
the holders of the Subordinated Debentures. In addition, the
Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year, an officers' certificate
indicating whether the signers thereof know of any Default or
Event of Default that occurred during the previous year. The
Company also is required to deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of
an officers' certificate of any event which would constitute
certain Defaults, their status and what action the Company is
taking or proposes to take in respect thereof.
AUTHENTICATION, DELIVERY AND APPLICATION OF PROCEEDS
The Subordinated Debentures will be executed on behalf
of the Company by one of its Vice Presidents and Secretary or
Assistant Secretary. Upon the execution and delivery of the
Indenture, and from time to time thereafter, the Subordinated
Debentures up to the aggregate principal amount of $115,000,000,
may be executed by the Company and delivered to the Trustee for
authentication. Any such Subordinated Debentures will thereupon
be authenticated and delivered by the Trustee, upon an order by
the Company.
The Subordinated Debentures are being issued pursuant
to the Company's Plan of Reorganization in exchange for certain
claims against the Company and, as a result, there will be no
cash proceeds to the Company upon issuance of the Subordinated
Debentures.
RELEASE AND SUBSTITUTION OF COLLATERAL
The obligations represented by the Indenture and the
Subordinated Debentures will not be secured. Accordingly, there
are no provisions relating to the release and substitution of
collateral.
SATISFACTION AND DISCHARGE
Except for certain surviving rights of the Trustee as
expressly provided in the Indenture, the Indenture will cease to
be of further effect and the Trustee shall acknowledge
satisfaction and discharge of the Indenture when (i)(a) the
issuer delivers to the Trustee for cancellation all outstanding
Subordinated Debentures (other than Subordinated Debentures which
have been destroyed, lost or stolen, and which have been
replaced) or (b) all Subordinated Debentures have become due and
payable and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity all outstanding Subordinated
Debentures, including interest thereon (other than Subordinated
Debentures which have been destroyed, lost or stolen, and which
have been replaced), (ii) the Company has paid all other sums due
and payable under the Indenture and (iii) the Company has
delivered an officers' certificate and opinion of counsel.
In addition, subject to certain covenants in documents
governing the Company's senior indebtedness, which prohibit
certain restricted payments, including defeasance of the
Subordinated Debentures, the Company may terminate all its
obligations under the Subordinated Debentures and the Indenture
("legal defeasance") except for certain obligations, including
those respecting the defeasance trust and obligation to register
the transfer or exchange of the Subordinated Debentures, to
replace mutilated, destroyed, lost or stolen Subordinated
Debentures and to maintain a registrar and paying agent in
respect of the Subordinated Debentures. Alternatively, the
Indenture provides that the Company may exercise a "covenant
defeasance" option pursuant to which it may terminate (a) its
obligations under the operating and financial covenants contained
in the Indenture, and the covenants relating to payment of taxes
and other claims, the corporate existence of the Company's
subsidiaries, and certain obligations regarding books of record
and account, notices and providing information to the Trustee, in
each case, as described in the Indenture; (b) the operation of
the following default provisions described above under "Events of
Default": the provision contained in clause (iv) concerning
failure to comply with covenants (with respect to those covenants
being defeased), the cross-acceleration provision contained in
clause (v), certain of the bankruptcy provisions contained in
clause (vi) (with respect to any subsidiary) and the judgment
default provision contained in clause (vii); and (c) certain
limitations contained in the Indenture relating to consolidation,
merger and sale of all or substantially all assets ("covenant
defeasance").
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option,
payment of the Subordinated Debentures may not be accelerated
because of an Event of Default. If the Company exercises its
covenant defeasance option, payment of the new Subordinated
Debentures may not be accelerated because of an Event of Default
which is being defeased, as described in the preceding paragraph.
In order to exercise either defeasance option, the
Company must irrevocably deposit in trust (the "defeasance
trust") with the Trustee money or U.S. government obligations for
the payment of principal, and interest on the Subordinated
Debentures to the date of redemption or maturity, as the case may
be, and must comply with certain other conditions, including
delivering to the Trustee an opinion of counsel to the effect
that holders of the Subordinated Debentures will not recognize
income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and
defeasance had not occurred (and, in the case of legal defeasance
only, such opinion of counsel must be based on a ruling of the
Internal Revenue Service or a change in applicable federal income
tax law).
EVIDENCE OF COMPLIANCE WITH COVENANTS
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, an
officers' certificate stating whether or not the signers know of
any Default or Event of Default, as of the last day of such prior
fiscal year, and, if so, specifying the nature of such Default or
Event of Default and its status.
In addition, if the Company becomes aware of any
condition or event of (i) default under the Indenture, (ii)(a)
any default under any material provision of any agreement,
instrument, or undertaking to which the Company or any subsidiary
is a party, (b) any litigation, investigation or proceeding which
default or litigation could have a material adverse effect on the
Company or any subsidiary, (iii) any litigation or proceeding
affecting the company or any subsidiary in which the amount
involved is $500,000 or more and is either not covered by
insurance or is covered by insurance as to which the insurer has
disclaimed liability or in which injunctive or similar relief is
sought; or (iv) any material adverse change in the business,
operations, or condition of the Company and its subsidiaries,
taken as a whole, it will promptly provide the Trustee with a
certificate specifying the nature and period of existence of such
condition or event and specify the action the Company is taking
or proposes to take in response to such condition or event.
9. OTHER OBLIGORS. Give the name and complete mailing
address of any person, other than the applicant, who is an
obligor upon the indenture securities.
None.
CONTENTS OF APPLICATION FOR QUALIFICATION. This application
for qualification comprises:
(a) Pages numbered 1 to (pages not numbered --
application filed via EDGAR).
(b) The statement of eligibility and qualification of
each trustee under the indenture to be qualified: Form T-1.
(c) The following exhibits in addition to those filed
as a part of the statement of eligibility and qualification of
each trustee.
Exhibit T3A. Second Restated Articles of Incorporation
as amended, filed as Exhibit (3)(i) to the Company's Quarterly
Report on Form 10-Q, dated October 11, 1989, for the quarter
ended August 31, 1989.
Exhibit T3B. Restated Bylaws, as amended, filed as
Exhibit (3)(ii) to the Company's Annual Report on Form 10-K for
the year ended February 28, 1995, filed on May 30, 1995.
Exhibit T3C. Form of Indenture to be qualified.
Exhibit T3D. Not applicable.
Exhibit T3E. Information mailed to creditors of
Americold Corporation, including Disclosure Statement and Plan of
Reorganization dated April 14, 1995, incorporated by reference to
Exhibit (2) filed with the Company's Current Report on Form 8-K,
dated May 9, 1995 filed on May 11, 1995.
Exhibit T3F. Cross-reference sheet (included with the
form of Indenture filed as Exhibit T3C).
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the applicant, Americold Corporation, a corporation
organized and existing under the laws of the State of Oregon, has
duly caused this application to be signed on its behalf by the
undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the City of Portland, and
State of Oregon, on the 2nd day of June, 1995.
AMERICOLD CORPORATION
By: /s/ Joel M. Smith
--------------------------
Joel M. Smith
Senior Vice President
and Chief Financial Officer
Attest:
By: /s/ Lon V. Leneve
------------------------
Lon V. Leneve
Secretary
004787\00001\0080767.Wp
<PAGE>
FORM T-1
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)_______
__________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5459866
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
__________________
AMERICOLD CORPORATION
(Exact name of obligor as specified in its charter)
Oregon 93-0295215
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
7007 S.W. Cardinal Lane 97224
Suite 135 (Zip code)
Portland, Oregon
(Address of principal executive offices)
__________________
15% Senior Subordinated Debentures due 2007
(Title of the indenture securities)
=================================================================
<PAGE>
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Reserve Bank of New York (2nd District), New York,
New York (Board of Governors of the Federal Reserve
System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
(a) United States Trust Company of New York currently is
Trustee for Americold Corporation's 11% Senior Subordinated
Debentures Due 1997 (the "Old Subordinated Debentures"), issued
under that certain indenture (the "1987 Indenture") dated as of
May 1, 1987, which is in default.
(b) Pursuant to a plan of reorganization under Chapter 11
of the United States Bankruptcy Code (the "Plan") for each $1,000
principal amount of the Old Subordinated Debentures, each holder
of the Old Subordinated Debentures will receive, in payment in
full of the Old Subordinated Debentures, $1,000 of the Company's
15% Senior Subordinated Debentures Due 2007 (the "New
Subordinated Debentures") and an amount in cash equal to 100% of
the accrued but unpaid interest on the Old Subordinated
Debentures up to but excluding the date the Plan becomes
effective, and the 1987 Indenture will be terminated.
Accordingly, there will be no conflicting interest within the
meaning of Section 310(b) (1) of the Trust Indenture Act of 1939,
as amended, as a result of the trusteeship of United States Trust
Company of New York under the 1987 Indenture and responses to
Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1
are not required under General Instruction B.
16. LIST OF EXHIBITS.
T-1.1 - "Chapter 204, Laws of 1853, An Act to Incorporate
the United States Trust Company of New York, as Amended", is
incorporated by reference to Exhibit T-1.1 to Form T-1 filed on
September 20, 1991 with the Securities and Exchange Commission
(the "Commission") pursuant to the Trust Indenture Act of 1939
(Registration No. 2221291).
T-1.2 - The trustee was organized by a special act of the
New York Legislature in 1853 prior to the time that the New York
Banking Law was revised to require a Certificate of authority to
commence business. Accordingly, under New York Banking Law, the
Charter (Exhibit T-1.1) constitutes an equivalent of a
certificate of authority to commence business.
T-1.3 - The authorization of the trustee to exercise
corporate trust powers is contained in the Charter (Exhibit
T-1.1).
T-1.4 - The By-laws of the United States Trust Company of
New York, as amended to date, are incorporated by reference to
Exhibit T-1.4 to Form T-1 filed on September 20, 1991 with the
Commission pursuant to the Trust Indenture Act of 1939
(Registration No. 2221291).
T-1.6 - The consent of the trustee required by Section
321(b) of the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990.
T-1.7 - A copy of the latest report of condition of the
trustee pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of May 25, 1995, the trustee had 2,999,020 shares of Common
Stock outstanding, all of which are owned by its parent company,
U.S. Trust Corporation. The term "trustee" in Item 2, refers to
each of United States Trust Company of New York and its parent
company, U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to
matters peculiarly within the knowledge of the obligor or its
directors, the trustee has relied upon information furnished to
it by the obligor and will rely on information to be furnished by
the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
__________________
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, United States Trust Company of New York, a
corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York,
on the 25th day of May, 1995.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ Louis P. Young
------------------------------------
Louis P. Young
Vice President
<PAGE>
Exhibit T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
March 19, 1992
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990, and subject to the limitations set forth therein,
United States Trust Company of New York ("U.S. Trust") hereby
consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon
request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Gerard F. Ganey
------------------------------
S/Gerard F. Ganey
Senior Vice President
<PAGE>
EXHIBIT T-1.7
Consolidated Report of Condition of
UNITED STATES TRUST COMPANY OF NEW YORK
and Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business on March 31, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
a. Noninterest bearing balances and currency and coin: $ 172,519
b. Interest bearing balances: 50,000
Securities 538,152
Federal funds sold and securities purchased under
agreements to resell 337,554
Loans 1,270,262
LESS: Allowance credit losses 13,215
Net Loans 1,257,047
Premises and Equipment 103,800
Other assets 120,886
---------
TOTAL ASSETS: $2,579,958
=========
LIABILITIES
Deposits: $2,166,456
(1) Non interest bearing 915,446
(2) Interest bearing 1,251,010
Federal funds purchased, securities sold under agreements
to repurchase and other borrowings 107,583
Accounts Payable & Accrued Liabilities 99,004
Long Term Debt 11,227
---------
TOTAL LIABILITIES: $2,384,270
=========
EQUITY CAPITAL
Common Stock $ 14,995
Capital Surplus 41,500
Undivided profits and capital reserves 137,599
Net unrealized holding gains (losses)
on available-for-sale securities (1,594)
TOTAL EQUITY CAPITAL: $ 195,688
---------
TOTAL LIABILITY AND EQUITY CAPITAL: $2,579,958
=========
</TABLE>
<PAGE>
I, RICHARD E. BRINKMANN, SENIOR VICE PRESIDENT & CONTROLLER, of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
RICHARD E. BRINKMANN, SVP & CONTROLLER
March 31, 1995
We, the undersigned directors, attest the correctness of this
Report of Condition and declare that it has been examined by us
and to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
H. MARSHALL SCHWARZ - Directors
JEFFREY S. MAURER -
FREDERICK S. WONHAM -
<PAGE>
EXHIBIT T3C
INDENTURE, dated as of ____________, 1995, by and
between AMERICOLD CORPORATION, an Oregon corporation (the
"Issuer"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New
York banking corporation, as Trustee hereunder (the "Trustee").
R E C I T A L S
A. On May 9, 1995, the Issuer filed for protection
under Chapter 11 of Title 11 of the United States Code in the
United States Bankruptcy Court for the District of Oregon. On
_________, 1995, the United States Bankruptcy Court for the
District of Oregon entered an order confirming the Plan of
Reorganization, dated as of _______ __, 1995, of the Issuer in
Case No. 395-33058elp11 (the "Plan"), which provides for the
issuance of the Securities (as hereinafter defined).
B. The Issuer has duly authorized the creation of an
issue of 15% Senior Subordinated Debentures, due 2007 (the
"Securities") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture. All things
necessary to make the Securities, when executed by the Issuer and
authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer, and to make this
Indenture a valid agreement of the Issuer, in accordance with
their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in
consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in this
Section (except as herein otherwise expressly provided or unless
the context otherwise requires), for all purposes of this
Indenture and of any indenture supplemental hereto, shall have
the respective meanings specified in this Section.
AFFILIATE: The term "Affiliate" means with respect to
any Person, (i) any other Person (or group of Persons acting in
concert in respect of such specified Person) which, directly or
indirectly, is in control of, is controlled by or is under common
control with such specified Person or (ii) any other Person who
is a director, executive officer or general partner (a) of such
specified Person, (b) of any Subsidiary of such specified Person
or (c) of any Person described in clause (i) above. For purposes
of this definition, control of a Person means the power, direct
or indirect, to direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise;
and the terms "control" and "controlled" have meanings
correlative to the foregoing; provided, however, that a Person
shall not be deemed to be an Affiliate of another Person solely
as a result of a warehouse management contract entered into
between such Persons in the ordinary course of business.
ASSET DISPOSITION: The term "Asset Disposition" means
any sale, lease, transfer or other disposition (or series of
related sales, leases, transfers or dispositions) of shares of
Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the
purposes of this definition as a "disposition") by the Issuer or
any of its Subsidiaries, other than (i) a disposition by a
Subsidiary to the Issuer or by the Issuer or a Subsidiary to a
Wholly Owned Subsidiary, (ii) a disposition of property or assets
at fair market value in the ordinary course of business, (iii) a
disposition of obsolete or worn out assets in the ordinary course
of business, (iv) a disposition subject to and made in accordance
with Section 3.01 of the First Mortgage Bonds Indenture, (v) a
disposition subject to Section 4.04, or (vi) a sale-and-leaseback
transaction pursuant to which either (x) the lease in such sale-
and-leaseback transaction is for a period, including renewal
rights, of not in excess of three years or (y) the Issuer could
incur Attributable Debt subject to Section 4.06.
ATTRIBUTABLE DEBT: The term "Attributable Debt" in
respect of a sale-and-leaseback transaction means, as at the time
of determination, the present value (discounted at the interest
rate borne by the Series B Bonds compounded annually) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement
(including any period for which such lease has been extended).
AVERAGE LIFE: The term "Average Life" means, as of the
date of determination, with respect to any Debt or Preferred
Stock, the quotient obtained by dividing (i) the sum of the
products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of
such Debt or redemption payment on such Preferred Stock
multiplied by the amount of such payment by (ii) the sum of all
such payments.
BANKRUPTCY LAW: The term "Bankruptcy Law" means Title
11, United States Code, or any similar Federal or state law for
the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
BOARD OF DIRECTORS: The term "Board of Directors"
means the Board of Directors of the Issuer or any committee
thereof duly authorized to act on behalf of such Board.
BOARD RESOLUTION: The term "Board Resolution" means a
copy of a resolution certified by the Secretary or an Assistant
Secretary of the Issuer to have been duly adopted by the Board of
Directors of the Issuer and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BOND TRUSTEE: The term "Bond Trustee" means the
trustee under the First Mortgage Bonds Indenture.
BUSINESS DAY: The term "Business Day" means each day
which is not a Legal Holiday.
CAPITAL LEASE OBLIGATION: The term "Capital Lease
Obligation" of a Person means any obligation which is required to
be classified and accounted for as a capital lease on the face of
a balance sheet of such Person prepared in accordance with
generally accepted accounting principles; the amount of such
obligation shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles; and the
Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee
without payment of a penalty.
CAPITAL STOCK: The term "Capital Stock" means any and
all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however
designated) corporate stock, including any Preferred Stock.
CASH: The term "Cash" means coin or currency of the
United States Government.
CHANGE OF CONTROL: The term "Change of Control" means
the occurrence of any of the following events:
(i) prior to the earlier to occur of (A) the first
public offering (which, for purposes of this definition,
shall mean the sale of shares of common stock of the
relevant entity pursuant to an effective registration
statement under the Securities Act that covers (together
with any such prior effective registrations) not less than
25% of the outstanding shares of common stock of such entity
on a fully diluted basis after giving effect to all such
registrations) of common stock of Parent or (B) the first
public offering of common stock of the Issuer, the Permitted
Holders cease to be the "beneficial owner" (as defined in
Rules 13d3 and 13d5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all
shares that any such Person has the right to acquire,
whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of a majority
in the aggregate of the total voting power of the Voting
Stock of the Issuer, whether as a result of issuance of
securities of the Issuer, any merger, consolidation,
liquidation or dissolution of the Issuer, any direct or
indirect transfer of securities by Parent or otherwise (for
purposes of this clause (i) and clause (ii) below, the
Permitted Holders shall be deemed to beneficially own any
Voting Stock of a corporation (the "specified corporation")
held by any other corporation (the "parent corporation") so
long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the
parent corporation);
(ii) any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than
one or more Permitted Holders, is or becomes the beneficial
owner (as defined in clause (i) above), directly or
indirectly, of more than 30% of the total voting power of
the Voting Stock of the Issuer; provided, however, that the
Permitted Holders beneficially own (as so defined), directly
or indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Issuer than
such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors of the
Issuer (for the purposes of this clause (ii), such other
Person shall be deemed to beneficially own any Voting Stock
of a specified corporation held by a parent corporation, if
such other Person "beneficially owns" (as so defined),
directly or indirectly, more than 30% of the voting power of
the Voting Stock of such parent corporation and the
Permitted Holders "beneficially own" (as so defined),
directly or indirectly, in the aggregate a lesser percentage
of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting
power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of such parent
corporation);
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Issuer (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Issuer
was approved by a vote of 66 2/3% of the directors of the
Issuer then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the
Issuer then in office; or
(iv) the Issuer consolidates with or merges with or
into any other Person or conveys, transfers or leases all or
substantially all of its assets to any Person or any Person
consolidates with or merges into the Issuer, in either event
pursuant to a transaction in which either (A) the
outstanding Voting Stock of the Issuer is changed into or
exchanged for Cash, securities or other property (excluding,
however, any such transaction where the outstanding Voting
Stock of the Issuer is changed into or exchanged for Voting
Stock of the surviving or transferee corporation which is
neither Redeemable Stock nor Exchangeable Stock) or (B) the
holders of the Voting Stock of the Issuer immediately prior
to such transaction, together with Kelso & Company and
Affiliates of Kelso & Company which are either controlled by
or under common control with Kelso & Company, own, directly
or indirectly, in the aggregate, less than 50.01% of the
Voting Stock of the surviving Person immediately after such
transaction.
CONSOLIDATED EBITDA COVERAGE RATIO: The term
"Consolidated EBITDA Coverage Ratio" as determined on any date
means the ratio of (i) the aggregate amount of Consolidated Net
Income plus (to the extent deducted in calculating Consolidated
Net Income) Consolidated Interest Expense, income taxes,
depreciation expense, amortization expense, non-cash write-offs
of deferred financing costs and non-cash deductions for
contributions to the ESOP (but without giving any effect to any
extraordinary gain or loss) for the Reference Period to (ii) the
aggregate amount of Consolidated Interest Expense for the
Reference Period.
CONSOLIDATED INTEREST EXPENSE: The term "Consolidated
Interest Expense" means, for any period, the total interest
expense of the Issuer and its consolidated Subsidiaries,
including (i) interest expense attributable to capital leases,
(ii) amortization of debt discount and debt issuance cost,
(iii) capitalized interest, (iv) noncash interest payments,
(v) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(vi) net costs under Interest Rate Protection Agreements
(including amortization of fees), (vii) Preferred Stock dividends
in respect of all Preferred Stock held by Persons other than the
Issuer or a Wholly Owned Subsidiary, (viii) interest incurred in
connection with investments in discontinued operations and
(ix) interest actually paid by the Issuer or any of its
consolidated Subsidiaries under any guarantee of Debt or any
other obligation of any other Person.
CONSOLIDATED NET INCOME: The term "Consolidated Net
Income" means, for any period, the net income of the Issuer and
its consolidated Subsidiaries determined on a consolidated basis
in accordance with generally accepted accounting principles;
provided, however, that there shall not be included in such
Consolidated Net Income:
(i) any net income of any Person if such Person is not
a Subsidiary, except that (A) the Issuer's equity in the net
income of any such Person for such period shall be included
in such Consolidated Net Income up to the aggregate amount
of Cash actually distributed by such Person during such
period to the Issuer or a Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution to a Subsidiary, to the limitations contained
in clause (iii) below) and (B) the Issuer's equity in a net
loss of any such Person for such period shall be included in
determining such Consolidated Net Income;
(ii) any net income of any Person acquired by the
Issuer or a Subsidiary in a pooling of interests transaction
for any period prior to the date of such acquisition;
(iii) any net income of any Subsidiary if such
Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of
distributions by such Subsidiary, directly or indirectly, to
the Issuer, except that (A) the Issuer's equity in the net
income of any such Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate
amount of Cash actually distributed by such Subsidiary
during such period to the Issuer or another Subsidiary as a
dividend or other distribution (subject, in the case of a
dividend or other distribution to another Subsidiary, to the
limitation contained in this clause) and (B) the Issuer's
equity in a net loss of any such Subsidiary for such period
shall be included in determining such Consolidated Net
Income;
(iv) any gain (but not loss) realized upon the sale or
other disposition of any property, plant or equipment of the
Issuer or its consolidated Subsidiaries (including pursuant
to any sale and leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and
any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person; or
(v) the cumulative non-cash effect of a change in
accounting principles, including (A) the cumulative or one-
time non-cash charges associated with the implementation of
SFAS 106 by the Issuer with respect to services rendered by
employees in periods prior to its implementation, but
excluding any effects of such implementation with respect to
services rendered in periods following such implementation
and (B) any cumulative or one-time non-cash charges
associated with the implementation of SFAS 109.
CONSOLIDATED NET TANGIBLE ASSETS: The term
"Consolidated Net Tangible Assets" means the total assets shown
on the balance sheet of the Issuer and its consolidated
Subsidiaries, determined on a consolidated basis using generally
accepted accounting principles, as of any date selected by the
Issuer not more than 90 days prior to the taking of any action
for the purpose of which the determination is being made, less
(i) all current liabilities and minority interests and
(ii) goodwill and other intangibles.
CONSOLIDATED NET WORTH: The term "Consolidated Net
Worth" of any Person means the total amounts shown on the balance
sheet of such Person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with generally
accepted accounting principles, as of the end of the most recent
fiscal quarter of such Person ending at least 45 days prior to
the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of
all outstanding Capital Stock of such Person plus (ii) paidin
capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any
accumulated deficit, (B) any amounts attributable to Redeemable
Stock and (C) any amounts attributable to Exchangeable Stock, and
excluding amounts attributable to cumulative or one-time non-cash
charges associated with the implementation of SFAS 106 and 109.
CORPORATE TRUST OFFICE: The term "Corporate Trust
Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered.
DEBT: The term "Debt" of any Person means, without
duplication:
(i) the principal of and premium (if any) in respect
of (A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by the Securities, the First
Mortgage Bonds, notes, debentures, bonds or other similar
instruments for the payment of which such Person is
responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed
as the deferred purchase price of property, all conditional
sale obligations of such Person and all obligations of such
Person under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of
business);
(iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other
than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business
of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement
following payment on the letter of credit);
(v) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of
any Redeemable Stock or Exchangeable Stock;
(vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons and all dividends
of other Persons for the payment of which, in either case,
such Person is responsible or liable as obligor, guarantor
or otherwise; provided, however that to the extent such
Person is responsible or liable only for the obligation of
another Person to pay interest on Debt, then a designated
percentage of such interest or the amount of the underlying
Debt, as the case may be, shall be deemed Debt of the
referent Person and the amount of such deemed Debt of the
referent Person shall be equal to the lesser of (A) the
aggregate principal amount of the underlying Debt or (B) the
aggregate amount of interest due or payable over the term of
such Debt (or the term of the Securities, if shorter)
determined based upon the rate of interest in effect as of
the date of such determination, together with the maximum
prepayment premium or penalty which could become due or
payable with respect to such Debt if such Debt was prepaid
prior to the maturity of the Securities;
(vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons secured by any
Lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value
of such property or assets or the amount of the obligation
so secured; and
(viii) all obligations of such Person consisting of
modifications, renewals, extensions, replacements and
refundings of any obligations described in clause (i), (ii),
(iii), (iv), (v), (vi) or (vii).
DEFAULT: The term "Default" means any condition or
event which constitutes or which, after notice or lapse of time
or both, would constitute an Event of Default hereunder.
DEFAULT RATE: The term "Default Rate" has the
respective meanings specified in the forms of Securities included
in this Indenture.
ESOP: The term "ESOP" means the Issuer's Employee
Stock Ownership Plan.
ESOP PREFERRED STOCK: The term "ESOP Preferred Stock"
means shares of Preferred Stock of the Issuer held by the ESOP.
EVENT OF DEFAULT: The term "Event of Default" means
any event specified as such in Section 5.01, continued for the
period of time, if any, and after the giving of notice, if any,
therein designated.
EXCHANGE ACT: The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended.
EXCHANGEABLE STOCK: The term "Exchangeable Stock"
means any Capital Stock which is exchangeable or convertible into
another security (other than Capital Stock of the Issuer which is
neither Exchangeable Stock nor Redeemable Stock).
FIRST MORTGAGE BONDS: The term "First Mortgage Bonds"
means the Issuer's First Mortgage Bonds issued under the First
Mortgage Bonds Indenture.
FIRST MORTGAGE BONDS INDENTURE: The term "First
Mortgage Bonds Indenture" means the Amended and Restated
Indenture, dated as of March 9, 1993, between the Issuer and
Shawmut Bank Connecticut, National Association.
HOLDER; SECURITYHOLDER: The term "Holder" of a
Security and the term "Securityholder" means the Person in whose
name at the time such Security is registered on the Security
Register kept for that purpose in accordance with the terms
hereof.
INDENTURE: The term "Indenture" means this Indenture
as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
INDEPENDENT ACCOUNTANTS: The term "Independent
Accountants" means a firm of independent public accountants
meeting the requirements therefor under the Securities Act and
rules and regulations of the SEC, which shall be KPMG Peat
Marwick or another firm of independent certified public
accountants of nationally recognized standing selected by the
Issuer and reasonably satisfactory to the Trustee.
INTEREST PAYMENT: The term "Interest Payment" has the
respective meanings specified in the forms of Securities included
in this Indenture.
INTEREST PERIOD: The term "Interest Period" has the
respective meanings specified in the forms of Securities included
in this Indenture.
INTEREST RATE PROTECTION AGREEMENT: The term "Interest
Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial
agreement or arrangement designed to protect the Issuer or any
Subsidiary against fluctuations in interest rates.
INVESTMENT: The term "Investment" in any Person means
any loan or advance to, any acquisition of Capital Stock, equity
interest, obligation or other security of, or capital
contribution or other investment in, such Person.
ISSUE: The term "issue" means issue, assume,
guarantee, incur or otherwise become liable for; provided,
however, that any Debt or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be
issued by such Subsidiary at the time it becomes a Subsidiary.
ISSUE DATE: The term "Issue Date" means, __________,
1995.
ISSUER: The term "Issuer" means the party named as
such in this Indenture until a successor replaces it, and
thereafter, means the successor, and, for purposes of any
provision contained herein and required by the TIA, each other
obligor on the Securities.
ISSUER ORDER AND ISSUER REQUEST: The terms "Issuer
Order" and "Issuer Request" mean, respectively, a written order
or request signed in the name of the Issuer by the Chairman of
the Board, the President or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer, and delivered to the Trustee.
LEGAL HOLIDAY: The term "Legal Holiday" has the
meaning set forth in Section 11.06.
LIEN: The term "Lien" means any mortgage, pledge,
security interest, conditional sale or other title retention
agreement, constructive trust or other similar lien.
MATURITY DATE: The term "Maturity Date" means, May 1,
2007.
NET AVAILABLE CASH: The term "Net Available Cash" from
an Asset Disposition means Cash payments received (including any
Cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but
only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of
Debt or other obligations relating to such properties or assets
or received in any other non-Cash form) therefrom, in each case
net of all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all federal, state,
provincial, foreign and local taxes required to be accrued as a
liability under generally accepted accounting principles, as a
consequence of such Asset Disposition, and in each case net of
all payments made on any Debt which is secured by any assets
subject to such Asset Disposition, in accordance with the terms
of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order
to obtain a necessary consent to such Asset Disposition, or by
applicable law be repaid out of the proceeds from such Asset
Disposition, and net of all distributions and other payments
required to be made and actually made to minority interest
holders in Subsidiaries or joint ventures as a result of such
Asset Disposition.
NET CASH PROCEEDS: The term "Net Cash Proceeds", with
respect to any issuance or sale of Capital Stock, means the Cash
proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
NEW CREDIT AGREEMENT: The term "New Credit Agreement"
means the Amended and Restated Credit Agreement, dated ________,
1995, between the Issuer and United States National Bank of
Oregon.
NON-CONVERTIBLE CAPITAL STOCK: The term "Non-
Convertible Capital Stock" means, with respect to any
corporation, any nonconvertible Capital Stock of such corporation
and any Capital Stock of such corporation convertible solely into
nonconvertible common stock of such corporation; provided,
however, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
NON-RECOURSE DEBT: The term "Non-Recourse Debt" means
Debt or that portion of Debt of a Subsidiary as to which
(i) neither the Issuer nor any Subsidiary (other than a Non-
Recourse Subsidiary) (A) provides credit support or (B) is
directly or indirectly liable and (ii) no default with respect to
such Debt (including any right which the holders thereof may have
to take enforcement action against such Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Debt
of the Issuer or any other Subsidiary to declare a default on
such other Debt or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.
NON-RECOURSE SUBSIDIARY: The term "Non-Recourse
Subsidiary" means a Subsidiary organized or acquired after the
date of this Indenture which has no Debt other than Non-Recourse
Debt and which has been designated as a Non-Recourse Subsidiary
by the Board of Directors of the Issuer, as provided below. The
Board of Directors of the Issuer may designate any Subsidiary
organized or acquired after the date of this Indenture as a Non-
Recourse Subsidiary, provided, however, that, notwithstanding the
foregoing, no Subsidiary as of the date of this Indenture shall
be reclassified as a Non-Recourse Subsidiary or become a
Subsidiary of a Non-Recourse Subsidiary. The Trustee shall be
given prompt notice by the Issuer of each resolution adopted by
the Board of Directors under this provision, together with a
certified copy of each such resolution adopted and an Officers'
Certificate certifying that such designation complies with the
foregoing conditions.
OBLIGATIONS: The term "Obligations" means (a) the due
and punctual payment of principal of, and interest on the
Securities, (b) the due and punctual payment by the Issuer of all
other sums due or to become due under the Securities or this
Indenture, and (c) the performance of all covenants, agreements,
obligations and liabilities of the Issuer under or pursuant to
the Securities and this Indenture.
OFFER: The term "Offer" has the meaning set forth in
Section 4.09(b).
OFFER AMOUNT: The term "Offer Amount" has the meaning
set forth in Section 4.09(c)(2).
OFFICER: The term "Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer or the
Secretary of the Issuer.
OFFICERS' CERTIFICATE: The term "Officers'
Certificate" means a certificate signed by two Officers.
OPINION OF COUNSEL: The term "Opinion of Counsel"
means a written opinion from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the
Issuer or the Trustee.
OUTSTANDING: The term "Outstanding", when used with
reference to Securities means, subject to the provisions of
Section 11.04, as of any particular time, all Securities
authenticated by the Trustee and delivered under this Indenture,
except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for the payment or redemption in whole
of which Cash in the necessary amount (including interest,
if any) shall have been deposited in trust with the Trustee
or any paying agents (other than in the case of defeasance
pursuant to Article Six), provided that if such Securities
are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities in lieu of or in substitution or
exchange for which other Securities shall have been
authenticated and delivered, or which have been paid,
pursuant to the terms of Section 2.07, unless proof
satisfactory to the Issuer and the Trustee is presented that
any such Securities are held by Persons in whose hands any
of such Securities is a valid, binding and legal obligation
of the Issuer.
PARENT: The term "Parent" means any Person of which
the Issuer is a Subsidiary at the relevant time.
PAYMENT DATE: The term "Payment Date" has the
respective meanings specified in the forms of Securities included
in this Indenture.
PERMITTED HOLDERS: The term "Permitted Holders" means
Kelso & Company and its Affiliates, the Co-Investors and the
Management Shareholders. The terms Co-Investors and Management
Shareholders have the respective meanings specified in the
Stockholders' Agreement, as in effect on the date hereof.
PERMITTED INVESTMENTS: The term "Permitted
Investments" means (i) U.S. Government Obligations maturing
within 90 days of the date of acquisition thereof,
(ii) investments in certificates of deposit maturing within 90
days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States or
any state thereof having capital, surplus and undivided profits
aggregating in excess of $500,000,000 or issued in an amount not
to exceed $1 million at any time by United States National Bank
of Oregon (or, if United States National Bank of Oregon ceases to
be the bank with which the Issuer has its principal banking
relationship, the bank with which the Issuer then has its
principal banking relationship), (iii) investments in commercial
paper given the highest rating (i.e., A-1/P-1 or better) by two
established national credit rating agencies and maturing not more
than 90 days from the date of acquisition thereof and (iv) solely
with respect to Investments by the Trustee, in the absence of any
direction by the Issuer or during the continuance of a Default or
an Event of Default, shares in any money market fund registered
under the Investment Company Act of 1940, as amended, the
portfolio of which is limited to U.S. Government Obligations and
U.S. agency obligations.
PERSON: The term "Person" means any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
PREFERRED STOCK: The term "Preferred Stock", as
applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
PRINCIPAL: The term "principal" of a Security means
the principal of the Security which is due or overdue or is to
become due at the relevant time.
PURCHASE DATE: The term "Purchase Date" has the
meaning set forth in Section 4.09(c)(1).
RECORD DATE: The term "Record Date" has the respective
meanings provided in the forms of Securities included in this
Indenture.
REDEEMABLE STOCK: The term "Redeemable Stock" means
any Capital Stock that by its terms or otherwise is required to
be redeemed on or prior to the first anniversary of the Stated
Maturity of the Securities or is redeemable at the option of the
holder thereof at any time on or prior to the first anniversary
of the Stated Maturity of the Securities.
REFERENCE PERIOD: The term "Reference Period", with
respect to any computation of the Consolidated EBITDA Coverage
Ratio, means the most recent four consecutive fiscal quarters
ending at least 45 days prior to the date of determination of the
Consolidated EBITDA Coverage Ratio.
RESTRICTED PAYMENT: The term "Restricted Payment" has
the meaning set forth in Section 4.04.
SEC: The term "SEC" means the Securities and Exchange
Commission.
SECURITIES ACT: The term "Securities Act" means the
Securities Act of 1933, as amended.
SECURITY: The term "Security" means any Security
authenticated by the Trustee and delivered under this Indenture.
SECURITY REGISTER: The term "Security Register" has
the meaning set forth in Section 2.06.
SECURITY REGISTRAR; SECURITY CO-REGISTRAR: The terms
"Security Registrar" and "Security Co-Registrar" have the
meanings set forth in Section 2.06.
SENIOR DEBT: The term "Senior Debt" means Debt unless,
in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such
obligations are pari passu or subordinate or junior in right of
payment to the Securities; provided, however, that Senior Debt
shall not be deemed to include (1) any obligation of the Issuer
to any Subsidiary, (2) any liability for federal, state, local or
other taxes owed or owing by the Issuer, (3) any accounts payable
or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments
evidencing such liabilities), (4) any indebtedness, guarantee or
obligation of the Issuer which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer (including, without limitation, the Securities), (5) the
portion of any Debt issued in violation of Section 4.05 or
Section 4.06 hereof or (6) any obligations of the Issuer or any
Subsidiary with respect to the redemption, repayment or other
repurchase of any Redeemable Stock or Exchangeable Stock.
SENIOR SUBORDINATED DEBT: The term "Senior
Subordinated Debt" has the meaning set forth in Section 10.02.
SERIES B BONDS: The term "Series B Bonds" means the 11
1/2% First Mortgage Bonds, Series B, Due 2005 of the Issuer
issued pursuant to the First Mortgage Bonds Indenture.
STATED MATURITY: The term "Stated Maturity" means,
with respect to any security, the date specified in such security
as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory
redemption provision.
STOCKHOLDERS' AGREEMENT: The term Stockholders'
Agreement means the Stockholders' Agreement, dated as of
December 24, 1986, as amended or restated, among the Issuer and
the parties listed on the signature pages thereof.
SUBORDINATED OBLIGATION: The term "Subordinated
Obligation" means any Debt of the Issuer (whether outstanding on
the date hereof or hereafter incurred) which is subordinate or
junior in right of payment to the Securities.
SUBSIDIARY: The term "Subsidiary" means any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) the Issuer, (ii) the Issuer and one or more
Subsidiaries or (iii) one or more Subsidiaries.
SUPERIOR DEBT: The term "Superior Debt" has the
meaning set forth in Section 10.02.
TANGIBLE PROPERTY: The term "Tangible Property" means
all land, buildings, machinery and equipment and leasehold
interests and improvements which would be reflected on a
consolidated balance sheet of the Issuer and its consolidated
Subsidiaries, prepared in accordance with generally accepted
accounting principles, excluding (i) all such tangible property
located outside the United States of America, (ii) all rights,
contracts and other intangible assets of any nature whatsoever
and (iii) all inventories and other current assets.
TIA: The term "TIA" means the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa--77bbbb) as in effect on the date
of this Indenture; provided, however, that in the event that the
Trust Indenture Act of 1939 is amended after such date, "TIA"
means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
TRUSTEE: The term "Trustee" means the corporation or
trust company or national banking association named as Trustee in
this Indenture until any successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
TRUST OFFICER: The term "Trust Officer" means any vice
president, trust officer or corporate trust officer of the
Trustee, in each case employed by the Corporate Trust
Administration department of the Trustee.
UNIFORM COMMERCIAL CODE: The term "Uniform Commercial
Code" means the Uniform Commercial Code as in effect in the State
of New York from time to time.
UNITED STATES: The term "United States" means the
United States of America, the Commonwealth of Puerto Rico and
each territory and possession of the United States of America and
all areas subject to its jurisdiction.
UNITED STATES PERSON: The term "United States Person"
means a Person who, for United States Federal income tax
purposes, is (a) a citizen or resident of the United States, (b)
an estate or trust the income of which is subject to United
States federal income taxation regardless of its source, or (c) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any State or the
District of Columbia.
U.S. GOVERNMENT OBLIGATIONS: The term "U.S. Government
Obligations" means direct obligations (or certificates evidencing
an ownership interest in such obligations) of the United States
of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United
States of America is pledged and which are not callable at the
issuer's option.
VOTING STOCK: The term "Voting Stock" of a corporation
means all classes of Capital Stock of such corporation then
outstanding and normally entitled to vote in the election of
directors.
WHOLLY OWNED SUBSIDIARY: The term "Wholly Owned
Subsidiary" means a Subsidiary all the Capital Stock of which
(other than directors' qualifying shares) is owned by the Issuer
or another Wholly Owned Subsidiary.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT. Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(2) "or" is not exclusive;
(3) "including" means including, without limitation;
(4) words in the singular include the plural and words
in the plural include the singular;
(5) the principal amount of any non-interest bearing
or other discount security at any time shall be the
principal amount thereof that would be shown on a balance
sheet of the Issuer dated such date prepared in accordance
with generally accepted accounting principles and accretion
of principal on such security shall be deemed to be the
issuance of Debt; and
(6) the principal amount of any Redeemable Stock shall
be the greater of (i) the maximum liquidation value of such
Redeemable Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Redeemable
Stock, whichever is greater.
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION
AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION, AMOUNT AND ISSUE OF
SECURITIES. The Securities shall be designated as the Issuer's
"15% Senior Subordinated Debentures, Due 2007." The Securities
will be limited to $115,000,000 in aggregate principal amount,
except as provided in Section 2.07.
SECTION 2.02. AUTHENTICATION AND DELIVERY OF
SECURITIES. Upon the execution and delivery of this Indenture,
and from time to time thereafter, the Securities shall be
executed by the Issuer and such Securities may thereupon be
delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Securities upon an
Issuer Order.
SECTION 2.03. FORM OF SECURITIES AND TRUSTEE'S
CERTIFICATE OF AUTHENTICATION GENERALLY. The Securities and the
Trustee's certificate of authentication to be borne by the
Securities shall be in substantially the form annexed hereto as
Exhibit A, with such appropriate insertions, omissions,
substitutions and other warranties as are required or permitted
under this Indenture, in temporary or definitive form, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Issuer may
deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to usage. The terms and
provisions contained in the form of the Securities annexed hereto
as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Issuer and
the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.04. DENOMINATION AND DATE OF SECURITIES;
PAYMENT OF PRINCIPAL AND INTEREST. The Securities shall be
issuable in registered form without coupons. The Securities
shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the
Issuer executing the same may determine with the approval of the
Trustee.
The Securities shall be issuable in denominations of
$1,000 and such greater denominations as are whole multiples of
$1,000. Each Security shall be dated the date of its
authentication and shall bear interest on the unpaid principal
amount thereof from and after the most recent Payment Date to
which interest has been paid or, if no interest has been paid,
from and after the Issue Date. Each Security authenticated
between the Record Date for any Payment Date and such Payment
Date shall be dated the date of its authentication but shall bear
interest from such Payment Date, unless the Issuer shall default
in the payment of interest due on such Payment Date, in which
case any such Security shall bear interest from the Payment Date
next preceding the date of such Security to which interest has
been paid or, if no interest has been paid on the Securities,
from the Issue Date.
The Person in whose name any Security is registered at
5:00 p.m., New York City time on any Record Date with respect to
any Payment Date for such Security shall be entitled to receive
the Interest Payment payable on such Payment Date notwithstanding
any transfer or exchange of such Security subsequent to the
Record Date and prior to such Payment Date, except that, if and
to the extent the Issuer shall default in the payment of the
Interest Payment due on such Payment Date or shall not have duly
provided for the payment thereof, such defaulted payment shall be
paid to the Persons in whose names Securities then Outstanding
are registered on a subsequent date of record established by
notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 10 days preceding such subsequent
date of record and payment of such defaulted Interest Payment
shall be made not less than five days after such date of record.
The principal of the Securities at maturity or upon
redemption in whole or in part shall be payable, together with
accrued interest, upon surrender of the Securities at the offices
of the paying agent of the Issuer designated for that purpose, as
provided in Section 4.12. Interest Payments on Securities will
be made in U.S. dollars, at the office of the Trustee, but, at
the option of the Issuer, such payments may be made by check
drawn on a bank in New York, New York mailed to the address of
the Holder as such address shall appear on the Security Register.
Interest on the Securities will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
SECTION 2.05. EXECUTION OF SECURITIES. Each Security
shall be signed in the name and on behalf of the Issuer manually
or by facsimile by its President or any Vice President under its
corporate seal (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise) attested by the
manual or facsimile signature of its Secretary or an Assistant
Secretary, prior to the authentication of the Security, and the
delivery of such Security by the Trustee upon an Issuer Order,
after the authentication thereof hereunder, shall constitute due
delivery of such Security on behalf of the Issuer. In case any
officer of the Issuer who shall have signed, or whose facsimile
signature appears on any of the Securities shall cease to be such
officer before the Securities shall have been authenticated and
delivered by the Trustee or disposed of, such Security
nevertheless may be authenticated and delivered or disposed of as
though the Person who signed such Security had not ceased to be
such officer. Any Security may be signed on behalf of the Issuer
by such officer as, at the actual date of the execution of such
Security shall be the proper officer of the Issuer, although at
the date of the execution of this Indenture any such Person was
not such an officer.
Only such Securities as shall bear thereon a
certificate of authentication substantially in the form herein
recited, executed by the Trustee by manual signature of one of
its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF
SECURITIES. The Issuer shall keep, at the office or agency to be
maintained by the Trustee for such purpose (herein referred to as
the "Security Registrar") in the Borough of Manhattan, The City
of New York, as provided in Section 4.12, a register (herein
sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of the Securities and
the registration of transfers thereof as in this Article Two
provided. Upon written notice to the Trustee and any acting
Security Registrar, the Issuer may appoint a successor Security
Registrar for such purposes. The Issuer may appoint one or more
Security Co-Registrars for such purposes. At all reasonable
times, any Security Register shall be open for inspection by the
Trustee. Upon due presentment for registration of transfer of
any Security at the office or agency of any Security Registrar or
any Security Co-Registrar, the Issuer shall execute, and the
Trustee shall authenticate and deliver, in the name of the
transferee or transferees, one or more new Securities of like
tenor of any authorized denominations for an aggregate principal
amount equal to the then current principal balance of the
Security presented for registration of transfer.
All Securities presented for registration of transfer
or for exchange, redemption or payment, as the case may be, shall
(if so required by the Issuer or the Trustee or the Security
Registrar or any Security Co-Registrar) be duly endorsed by, or
be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person
imposing such requirement duly executed by, the Holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Securities (except the costs of
mailing), but the Issuer may require payment of a sum sufficient
to cover any tax, assessment or other governmental charge that
may be imposed in connection therewith.
The Issuer shall not be required to exchange or
register the transfer of any Securities called for redemption or
any Securities for a period of fifteen days before a selection of
Securities to be redeemed.
Upon delivery by any Security Registrar or Security Co-
Registrar of a Security in exchange for a Security surrendered to
it in accordance with the provisions of this Indenture, the
Security so delivered shall, for all purposes of this Indenture,
be deemed to be fully registered in the Security Register;
provided, however, that in making any determination as to the
identity of Persons who are Holders of Securities, the Trustee
shall, subject to the provisions of Section 7.01, be fully
protected in relying on the Security Register.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN
SECURITIES. In case any Security shall become mutilated,
destroyed, lost or stolen, the Issuer shall execute, and the
Trustee shall authenticate and deliver, a new Security or
Securities of like series and tenor, bearing a number not
contemporaneously outstanding in an aggregate principal amount
equal to the current principal balance of, and in substitution
for, the Security so mutilated, destroyed, lost or stolen. In
every such case, the applicant for a substitute Security shall,
at the expense of the applicant, furnish to the Issuer, the
Trustee, the Security Registrar and any Security Co-Registrar
such security or indemnity as may be required by them to save
each of them harmless. Also, in every case of destruction, loss
or theft, the applicant shall furnish to the Issuer, the Trustee,
the Security Registrar and any Security Co-Registrar evidence to
their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. In every case of
mutilation, the applicant shall surrender to the Trustee the
Security so mutilated. The Trustee shall authenticate any such
substitute Security and deliver the same. Upon the issuance of
any substitute Security, the Issuer may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. If required by the Trustee or the Issuer,
such applicant shall furnish an indemnity bond sufficient in the
judgment of the Issuer and the Trustee to protect the Issuer, the
Trustee, the Paying Agent, the Security Registrar and any
Security Co-Registrar from any loss which any of them may suffer
if a Security is replaced. In case any Security shall have
become mutilated, destroyed, lost or stolen and has become or is
about to become due or payable, the Issuer may pay or authorize
the payment of the same instead of issuing a substitute Security
as permitted by this Section 2.07.
Every substitute Security issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any
Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not
the destroyed, lost or stolen Security shall at any time be found
by anyone, and shall be entitled to all the benefits and be
subject to all the terms and conditions of this Indenture equally
and proportionately with any and all other Securities duly issued
and outstanding hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall preclude any and all other rights or
remedies, notwithstanding any law or statute now existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES.
All Securities surrendered for redemption in whole or in part
pursuant to the provisions of Article Three and all Securities
surrendered for payment or for substitution or exchange or
registration of transfer hereunder shall be delivered to the
Trustee for cancellation and shall be canceled by the Trustee,
and no Securities shall be issued in lieu thereof, except as
otherwise provided in this Indenture. The Trustee shall destroy
all canceled Securities held by it and shall deliver to the
Issuer a certificate in respect of such destruction. If the
Issuer shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation. Any
Securities acquired by the Issuer and delivered to the Trustee
shall be canceled by the Trustee upon receipt of written
instructions from the Issuer.
SECTION 2.09. TEMPORARY SECURITIES. Until definitive
Securities are ready for delivery, the Issuer may prepare and,
upon written request signed by two Officers of the Issuer, the
Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities, but may have variations that the Issuer considers
appropriate for temporary Securities, as conclusively evidenced
by the execution of such Securities. Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate
definitive Securities and deliver them in exchange for temporary
Securities.
SECTION 2.10. FOREIGN HOLDER CERTIFICATION. Each
Holder that is a corporation organized outside of the United
States or that otherwise is not a United States person shall
provide the Issuer and the Trustee on or prior to the date of the
acquisition of a Security with two copies of a properly completed
United States Internal Revenue Service Form 4224 or Form 1001
(or, if a Holder is not described in Section 871(h)(3) or Section
881(c)(3) of the Code, Form W-8), as appropriate, or any
successor forms thereto, in each case together with such other
information or necessary certification establishing to the
satisfaction of the Issuer that such Holder is not subject to
United States federal withholding tax on interest paid by the
Issuer under the Securities (or subject to such tax at a reduced
rate of withholding), in each case based on applicable United
States law or the provisions of an applicable United States
treaty as in effect at the time of delivery by such Holder of the
appropriate forms. Further, each such Holder shall provide the
Issuer and the Trustee with a new Form 4224 or Form 1001 (or Form
W-8), or applicable successor forms, as appropriate, on or before
the date the previously delivered forms become obsolete or expire
or promptly after the occurrence of any event requiring a change
to the most recent forms previously delivered. In the case of
any payment of interest under the Securities to a Holder that is
a corporation organized outside of the United States or that
otherwise is not a United States person, unless the Issuer and
the Trustee shall have received such forms (or other documents),
satisfactory to them, indicating that such payment to such Holder
by the Issuer is not subject to United States federal withholding
tax, the Issuer or the Trustee shall withhold taxes from such
payment at the applicable rate. If such forms indicate that such
Holder is subject to United States federal withholding tax at a
reduced rate under an applicable income tax treaty, the Issuer or
the Trustee shall withhold at the applicable reduced treaty rate.
The Trustee may assume that any Holder is not a foreign Person
unless the Trustee has actual knowledge to the contrary or has
received such forms. Any amounts required to be withheld for
taxes under the laws of the United States shall be so withheld
and remitted to the appropriate tax authorities by the Issuer or
the Trustee. The Issuer or the Trustee shall promptly forward to
such Holder an original or certified copy of a tax receipt
evidencing the payment of such taxes.
Section 2.11. CUSIP NUMBERS. The Issuer, in issuing
the Securities, may use "CUSIP" numbers (if then generally in
use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided,
however, that any such notice shall state that no representation
is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or
exchange and that reliance may be placed only on the other
identification numbers printed on the Securities and any
redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will promptly notify the Trustee of the
receipt of or any change in CUSIP numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. OPTIONAL REDEMPTION. The Securities may
be redeemed in whole, or from time to time in part, at the option
of the Issuer, upon notice given pursuant to Section 3.02, at a
redemption price equal to 100% of the outstanding principal
amount of the Securities to be redeemed, plus accrued interest to
the redemption date prior to maturity. For purposes of this
Indenture and the Securities, the term "redeem" shall have the
same meaning as the term "prepay".
Section 3.02. NOTICE OF REDEMPTION. In the event that
the Issuer elects to redeem the Securities pursuant to
Section 3.01 hereof, the Issuer shall deliver to the Trustee, at
least 45 days prior to the date fixed for redemption, an
Officers' Certificate of the Issuer (i) stating that the Issuer
is entitled to effect such redemption and (ii) specifying the
date fixed for redemption and the principal amount of the
Securities to be redeemed. The Trustee will be entitled to rely
conclusively upon such Officers' Certificate. At least 30 but
not more than 60 days prior to any date fixed for redemption, the
Trustee shall mail by firstclass mail, postage prepaid, to the
Holders of the Securities at their addresses as the same appear
on the Security Register, a notice of such redemption containing
the following information:
(1) the date fixed for redemption;
(2) the redemption price;
(3) the name and address of the paying agent;
(4) that Securities called for redemption must be
surrendered to the paying agent to collect the redemption
price;
(5) if fewer than all the Outstanding Securities are
to be redeemed, the identification and principal amounts of
the particular Securities to be redeemed and, if any
Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that,
after the redemption date, upon surrender of such Security,
a new Security or Securities in principal amount equal to
the unredeemed portion will be issued;
(6) that, unless the Issuer defaults in making such
redemption payment, interest will cease to accrue on
Securities called for redemption on and after the redemption
date; and
(7) the paragraph of the Securities pursuant to which
the Securities called for redemption are being redeemed.
The notice, if mailed as herein provided, shall be
conclusively presumed to have been duly given to the Holder of a
Security to whom such notice is mailed whether or not any Holder
receives such notice. Neither any failure to give notice by mail
nor any defect in the notice to the Holder of any Security to be
redeemed shall affect the validity of the proceedings for the
redemption of any other Security.
SECTION 3.03. PROCEDURES FOR REDEMPTION. On or before
3 p.m. New York time on the Business Day next preceding the date
fixed for the redemption of Securities, the Issuer shall deposit
with the Trustee or with the paying agents an amount of money
sufficient to redeem on the date fixed for redemption, the
principal amount of the Securities to be redeemed (at the
applicable redemption price thereof, together with any interest
accrued thereon to the date of redemption in the case of
redemptions).
The Trustee shall not in any event be liable for the
payment of principal of, or interest on any Securities called for
redemption as herein provided, except to the extent that money
shall have been deposited with it for such purpose.
Upon any redemption of Securities pursuant to
Section 3.01, the Issuer shall deliver to the Trustee an
Officers' Certificate of the Issuer stating that such Securities
have been redeemed.
SECTION 3.04. SELECTION OF SECURITIES TO BE REDEEMED.
In the case of the partial redemption of Securities pursuant to
the terms of this Indenture, selection of the Securities for
redemption will be made by the Trustee on a pro rata basis, by
lot or by such other method that complies with applicable legal
and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and
appropriate. Securities and portions thereof selected by the
Trustee for redemption shall be in amounts of $1,000 or integral
multiples thereof (with such adjustments as may be deemed
appropriate by the Trustee so that only Securities in
denominations of $1,000 or integral multiples thereof shall be
redeemed). Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.05. WHEN SECURITIES CALLED FOR REDEMPTION
BECOME DUE AND PAYABLE. If notice of redemption has been mailed
as provided in Section 3.02, the Securities called for redemption
specified therein shall become due and payable on the date and at
the place or places stated in such notice, at the applicable
redemption price, and on and after said date (unless the Issuer
shall default in the payment of such principal at the applicable
redemption price) interest on such principal so to be redeemed
shall cease to accrue.
Upon surrender to the Trustee or a paying agent of a
Security to be redeemed in whole or in part in accordance with
the terms of this Indenture, a payment of principal with respect
to such Security shall be made in accordance with the terms of
this Indenture at the redemption price, plus accrued interest
thereon to the redemption date, provided that any Interest
Payment the maturity of which is on or prior to such redemption
date will be payable on the relevant Payment Date to the Holders
of record at the close of business on the relevant record dates
referred to in the Securities.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities, of
authorized denominations, in principal amount equal to the
current principal balance of the unredeemed portion of the
Security so presented.
ARTICLE FOUR
PARTICULAR COVENANTS, REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
The Issuer represents, warrants, covenants and agrees,
as follows:
SECTION 4.01. VALIDITY OF SECURITIES. The Issuer is
duly authorized under applicable law and its charter documents to
create and issue the Securities and to execute and deliver this
Indenture; all corporate action and governmental consents,
authorizations and approvals necessary or required therefor have
been duly and effectively taken or obtained. The Securities are
legal, valid and binding obligations of the Issuer.
SECTION 4.02. PAYMENT OF PRINCIPAL OF, AND INTEREST ON
SECURITIES. The Issuer will duly and punctually pay or cause to
be paid the principal of, and interest (without deduction or
withholding for or on account of any taxes except as required by
law) on each of the Securities at the places, at the respective
times and in the manner provided in the Securities and this
Indenture. Applicable United States taxes will be withheld from
payments on any Security for any year in which the Trustee has
not received from the Holder thereof, if such Holder is not a
United States Person, a properly executed Form 4224 or Form 1001
(or successor thereto) in accordance with appropriate U.S.
Treasury regulations.
SECTION 4.03. SEC REPORTS. The Issuer shall file with
the Trustee and provide Securityholders, within 15 days after it
files them with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Issuer is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Issuer may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Issuer shall continue to file with the SEC
so long as any Securities remain Outstanding and provide the
Trustee and Securityholders with such annual reports and such
information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which are specified in Sections 13 and
15(d) of the Exchange Act. The Issuer also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. (a)
The Issuer shall not, and shall not permit any Subsidiary,
directly or indirectly, to (i) declare or pay any dividend or
make any distribution on or in respect of its Capital Stock
(including any distribution in connection with any merger or
consolidation involving the Issuer) or to the direct or indirect
holders of its Capital Stock (except dividends or distributions
payable solely in its NonConvertible Capital Stock or in options,
warrants or other rights to purchase its NonConvertible Capital
Stock and except dividends or distributions payable to the Issuer
or a Subsidiary), (ii) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Issuer or of any direct
or indirect Parent of the Issuer, (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior
to scheduled maturity, scheduled repayment or scheduled sinking
fund payment any Subordinated Obligations (other than the
purchase, repurchase or other acquisition of Subordinated
Obligations purchased in anticipation of and used for satisfying
a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of
acquisition) or (iv) make any Investment in any Affiliate of the
Issuer, other than a Subsidiary that is not a Non-Recourse
Subsidiary or a Person which will become a Subsidiary that is not
a Non-Recourse Subsidiary as a result of any such Investment (any
such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being
hereinafter referred to as a "Restricted Payment") if at the time
the Issuer or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing
(or would result therefrom);
(2) the Issuer is not able to issue $1.00 of
additional Debt in accordance with the provisions of
Section 4.06(a); or
(3) the aggregate amount of such Restricted Payment
and all other Restricted Payments since the date of issuance
of the Securities would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period)
from the date of issuance of the Securities, to the end
of the most recent fiscal quarter ending at least 45
days prior to the date of such Restricted Payment (or,
in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit) and minus 100% of
the amount of any write-downs, write-offs, other
negative revaluations and other negative extraordinary
charges not otherwise reflected in Consolidated Net
Income during such period;
(B) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) subsequent to the date of issuance of the
Securities (other than an issuance or sale to a
Subsidiary or an employee stock ownership plan);
(C) the aggregate Net Cash Proceeds received by
the Issuer from the issuance or sale of its Capital
Stock (other than Redeemable Stock or Exchangeable
Stock) to an employee stock ownership plan subsequent
to the date of issuance of the Securities, but (if such
employee stock ownership plan incurs any Debt) only to
the extent that any such proceeds are equal to any
increase in the Consolidated Net Worth of the Issuer
resulting from principal repayments made by such
employee stock ownership plan with respect to Debt
incurred by it to finance the purchase of such Capital
Stock; and
(D) the amount by which Debt of the Issuer is
reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Subsidiary)
subsequent to the date of issuance of the Securities of
any Debt of the Issuer convertible or exchangeable for
Capital Stock (other than Redeemable Stock or
Exchangeable Stock) of the Issuer (less the amount of
any Cash, or other property, distributed by the Issuer
upon such conversion or exchange).
(b) The provisions of Section 4.04(a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Issuer made by exchange for,
or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Issuer (other than Redeemable Stock
or Exchangeable Stock and other than Capital Stock issued or
sold to a Subsidiary or an employee stock ownership plan);
provided, however, that (A) such purchase or redemption
shall be excluded in the calculation of the amount of
Restricted Payments made since the date of issuance of the
Securities and (B) the Net Cash Proceeds from such sale
shall be excluded from clauses (3)(B) and (3)(C) of
Section 4.04(a);
(ii) any purchase or redemption of Subordinated
Obligations of the Issuer made by exchange for, or out of
the proceeds of the substantially concurrent sale of,
Subordinated Obligations of the Issuer; provided, however,
that such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments made since
the date of issuance of the Securities;
(iii) any purchase or redemption of Subordinated
Obligations from Net Available Cash to the extent permitted
by Section 4.09; provided, however, that such purchase or
redemption shall be excluded in the calculation of the
amount of Restricted Payments made since the date of
issuance of the Securities;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such
dividends would have complied with this Section; provided,
however, that at the time of payment of such dividends, no
other Default shall have occurred and be continuing (or
result therefrom); provided further, however, that such
dividends shall be included in the calculation of the amount
of Restricted Payments made since the date of issuance of
the Securities;
(v) any repurchase of Capital Stock of the Issuer
after the date of issuance of the Securities pursuant to the
terms of the Stockholders' Agreement from officers and
employees (or their estates) of the Issuer or its
Subsidiaries upon death, disability or termination of
employment of such officers and employees; provided,
however, that (A) the aggregate amount of all such
repurchases (excluding repurchases made with proceeds of
life insurance policies maintained by the Issuer on such
employees or officers) in any fiscal year shall not exceed
$500,000; (B) to the extent that the aggregate amount of
such repurchases (excluding repurchases made with proceeds
of life insurance policies maintained by the Issuer on such
employees or officers) in any fiscal year is less than
$500,000, the difference between $500,000 and such amount
may be carried forward and applied to repurchases in
subsequent fiscal years; and (C) all such repurchases shall
be included in the calculation of the amount of Restricted
Payments made since the date of issuance of the Securities;
(vi) Cash dividends paid after the date of issuance of
the Securities with respect to the ESOP Preferred Stock;
provided, however, that (A) the aggregate amount of all such
dividends paid in any fiscal year shall not exceed $500,000;
(B) to the extent that the aggregate amount of such
dividends paid in any fiscal year is less than $500,000, the
difference between $500,000 and such amount may be carried
forward and applied to the payment of such dividends in
subsequent fiscal years; and (C) all such dividends shall be
included in the calculation of the amount of Restricted
Payments made since the date of issuance of the Securities;
(vii) Investments in Non-Recourse Subsidiaries, not to
exceed $5,000,000 in the aggregate during the term of this
Indenture; provided, however, that all such Investments
shall be excluded in the calculation of the amount of
Restricted Payments made since the date of issuance of the
Securities; or
(viii) Restricted Payments not to exceed $5,000,000 in
the aggregate during the term of this Indenture; provided,
however, that all such Restricted Payments shall be included
in the calculation of the amount of Restricted Payments made
since the date of issuance of the Securities.
SECTION 4.05. LIMITATION ON SENIOR SUBORDINATED DEBT.
The Issuer shall not, and shall not permit any Subsidiary to,
issue, directly or indirectly, any Debt that is expressly
subordinate in right of payment to any Superior Debt unless such
Debt, by its terms or by the terms of any agreement or instrument
pursuant to which such Debt is outstanding, is expressly made
pari passu with, or subordinate in right of payment to, the
Securities, pursuant to provisions substantially similar to those
contained in Article 10 of this Indenture; provided, that the
foregoing limitation shall not apply to distinctions between
categories of Superior Debt of the Issuer that exist by reason of
any Liens arising or created in respect of some but not all of
such Superior Debt.
SECTION 4.06. LIMITATION ON DEBT. (a) The Issuer
shall not issue, directly or indirectly, any Debt unless the
Consolidated EBITDA Coverage Ratio (as shown by a consolidated
pro forma income statement of the Issuer and its consolidated
Subsidiaries for the Reference Period after giving effect to
(i) the issuance of such Debt and (if applicable) the application
of the net proceeds thereof to refinance other Debt as if such
Debt was issued and the application of such proceeds occurred at
the beginning of the Reference Period, (ii) the issuance and
retirement of any other Debt since the last day of the most
recent fiscal quarter covered by such income statement as if such
Debt was issued or retired at the beginning of the Reference
Period and (iii) the acquisition or disposition of any company or
business acquired or disposed of by the Issuer since the first
day of the Reference Period, including any acquisition or
disposition which will be consummated substantially
contemporaneously with the issuance of such Debt, as if such
acquisition or disposition occurred at the beginning of the
Reference Period), exceeds 1.75 to 1.0 for the Reference Period.
(b) Notwithstanding Section 4.06(a), the Issuer may
issue the following Debt:
(1) Debt issued as working capital and letter of
credit financing in an aggregate principal amount
outstanding at any time not to exceed the greater of (i) the
sum of (A) 85% of the book value of the net trade
receivables of the Issuer and its Subsidiaries and (B)
$7.5 million or (ii) up to $27.5 million of Debt incurred
pursuant to the terms of the New Credit Agreement and Debt
issued in exchange for, or the proceeds of which are used to
refund or refinance, the Debt permitted by this clause (ii);
(2) Debt owed to and held by a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance
or transfer of any Capital Stock which results in any such
Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any transfer of such Debt (other than to a
Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt by the Issuer;
(3) the Securities and Debt issued in exchange for, or
the proceeds of which are used to refund or refinance, any
Debt permitted by this clause (3); provided, however, that
(i) the principal amount of the Debt so issued shall not
exceed the principal amount of the Debt so exchanged,
refunded or refinanced and (ii) the Debt so issued (A) shall
not mature prior to the Stated Maturity of the Debt so
exchanged, refunded or refinanced and (B) shall have an
Average Life equal to or greater than the remaining Average
Life of the Debt so exchanged, refunded or refinanced; and
(4) Debt (other than Debt described in clause (1),(2)
or (3) of this Section) outstanding on the date of issuance
of the Securities and Debt issued in exchange for, or the
proceeds of which are used to refund or refinance, any Debt
permitted by this clause (4); provided, however, that
(i) the principal amount of the Debt so issued shall not
exceed the principal amount of the Debt so exchanged,
refunded or refinanced and (ii) the Debt so issued (A) shall
not mature prior to the Stated Maturity of the Debt so
exchanged, refunded or refinanced, (B) shall have an Average
Life equal to or greater than the remaining Average Life of
the Debt so exchanged, refunded or refinanced and (C) shall
be subordinated in right of payment to the Securities if the
Debt so exchanged, refunded or refinanced is so
subordinated; and
(5) Debt in an aggregate principal amount which,
together with all other Debt of the Issuer then outstanding
(other than Debt permitted by clauses (1) through (4) of
this paragraph) does not exceed the greater of:
(i) $40,000,000 and (ii) 10% of Consolidated Net Tangible
Assets as of the end of the most recent fiscal quarter of
the Issuer ending not less than 45 days from the date of
determination.
The Issuer may issue Debt to finance the reasonable
underwriting fees and other transaction fees incurred by the
Issuer in connection with the issuance of the Debt referred to in
clauses (3) and (4) so long as the issuance of such Debt complies
with Section 4.06.
SECTION 4.07. LIMITATION ON SUBSIDIARY DEBT AND
PREFERRED STOCK. The Issuer shall not permit any Subsidiary to
issue, directly or indirectly, any Debt or Preferred Stock
except:
(1) Debt or Preferred Stock issued to and held by the
Issuer or a Wholly Owned Subsidiary; provided, however, that
(i) any subsequent issuance or transfer of any Capital Stock
which results in any such Wholly Owned Subsidiary ceasing to
be a Wholly Owned Subsidiary or (ii) any subsequent transfer
of such Debt or Preferred Stock (other than to the Issuer or
a Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the issuance of such Debt or Preferred Stock by
the issuer thereof;
(2) Debt or Preferred Stock of a Subsidiary issued and
outstanding on or prior to the date on which such Subsidiary
was acquired by the Issuer (other than Debt or Preferred
Stock issued as consideration in, or to provide all or any
portion of the funds utilized to consummate, the transaction
or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the
Issuer);
(3) Debt or Preferred Stock issued and outstanding on
or prior to the date on which the Securities were originally
issued, other than Debt or Preferred Stock described in
clause (1) or (2) of this Section;
(4) Non-Recourse Debt of a Non-Recourse Subsidiary
issued after the date of this Indenture to finance the
acquisition of assets acquired after the date hereof; and
(5) Debt or Preferred Stock issued in exchange for, or
the proceeds of which are used to refund or refinance, Debt
or Preferred Stock referred to in the foregoing clause (2)
or (3); provided, however, that (i) the principal amount of
such Debt or the liquidation value of such Preferred Stock
so issued shall not exceed the principal amount or
liquidation value of the Debt or Preferred Stock so
exchanged, refunded or refinanced; (ii) the Debt or
Preferred Stock so issued (A) shall have a Stated Maturity
later than the Stated Maturity of the Debt or final
redemption date (if any) of the Preferred Stock being
exchanged, refunded or refinanced and (B) shall have an
Average Life equal to or greater than the remaining Average
Life of the Debt or Preferred Stock being exchanged,
refunded or refinanced; (iii) the Debt so issued shall be
subordinate in right of payment to the Securities if the
Debt so exchanged, refunded or refinanced is so subordinate;
and (iv) Debt may not be issued in exchange for, and the
proceeds of such Debt may not be used to refund or
refinance, Preferred Stock.
SECTION 4.08. LIMITATION ON RESTRICTIONS ON
DISTRIBUTIONS FROM SUBSIDIARIES. The Issuer shall not, and shall
not permit any Subsidiary to, create or otherwise cause or permit
to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends
or make any other distributions on its Capital Stock or pay any
Debt or other obligation owed to the Issuer or any Subsidiary,
(ii) make any loans or advances to the Issuer or any Subsidiary
or (iii) transfer any of its property or assets to the Issuer or
any Subsidiary, except:
(1) any encumbrance or restriction pursuant to an
agreement in effect on the date hereof;
(2) any encumbrance or restriction with respect to a
Subsidiary pursuant to an agreement relating to any Debt
issued by such Subsidiary on or prior to the date on which
such Subsidiary became a Subsidiary or was acquired by the
Issuer (other than Debt issued as consideration in, or to
provide all or any portion of the funds utilized to
consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Issuer) and outstanding on
such date;
(3) any encumbrance or restriction pursuant to an
agreement effecting a refinancing of Debt issued pursuant to
an agreement referred to in clause (1) or (2) of this
Section; provided, however, that the encumbrances and
restrictions contained in any such refinancing agreement are
no less favorable to the Securityholders than the
encumbrances and restrictions contained in the agreements
being refinanced;
(4) any such encumbrance or restriction consisting of
customary nonassignment provisions in leases governing
leasehold interests to the extent such provisions restrict
the transfer of the lease;
(5) restrictions contained in security agreements
securing Debt of a Subsidiary to the extent such
restrictions restrict the transfer of the property subject
to such security agreements; and
(6) any such encumbrance or restriction relating to a
Non-Recourse Subsidiary.
SECTION 4.09. LIMITATION ON SALES OF ASSETS AND
SUBSIDIARY STOCK. (a) The Issuer shall not, and shall not
permit any Subsidiary to, make any Asset Disposition unless
(i) the Issuer or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors
(including a determination as to the value of all nonCash
consideration), of the shares and assets subject to such Asset
Disposition, and at least 90% of the consideration therefor
received by the Issuer or such Subsidiary is in the form of Cash
or Cash equivalents and (ii) an amount equal to 100% of the Net
Available Cash from such Asset Disposition is applied by the
Issuer (or such Subsidiary, as the case may be) either (A) to the
extent the Issuer elects (or is required by the terms of any
Senior Debt), to redeem, prepay, repay or purchase Senior Debt or
Debt of a Wholly Owned Subsidiary to the extent the asset
disposed of was previously held by such Wholly Owned Subsidiary
(in each case other than Debt owed to the Issuer or an Affiliate
of the Issuer) within 60 days (or such other period as may be
required for compliance with Section 4.12 of the First Mortgage
Bonds Indenture) from the later of the date such Asset
Disposition or the receipt of such Net Available Cash; or (B) to
the extent of Net Available Cash not so applied in accordance
with clause (A), to the acquisition by the Issuer or any Wholly
Owned Subsidiary of Tangible Property of a nature or type or that
is used in a business (or in a company having property and assets
of a nature or type, or engaged in a business) similar or related
to the nature or type of the Tangible Property of, or the
business of, the Issuer and its Subsidiaries existing on the date
of such acquisition (as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board
Resolution); and (C) to the extent there is Net Available Cash
after application in accordance with clauses (A) and (B), to make
an Offer (as defined below) to purchase Securities pursuant to
and subject to the conditions of the following paragraph and to
effect any Offer accepted, in each case within one year from the
later of the receipt of such Net Available Cash and the date the
Offer described in Section 4.09(b) is consummated; provided,
however, that in connection with any redemption, prepayment,
repayment or purchase of Debt pursuant to clause (A) above, the
Issuer shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so
redeemed, prepaid, repaid or purchased. Notwithstanding the
foregoing provisions of this Section, the Issuer and its
Subsidiaries shall only be required to apply Net Available Cash
in accordance with this Section to the extent that the aggregate
Net Available Cash from all Asset Dispositions exceeds
$25,000,000. Pending application of Net Available Cash pursuant
to this Section, such Net Available Cash shall be invested in
Permitted Investments.
(b) To the extent that there is Net Available Cash
from an Asset Disposition remaining after (i) any elected or
required payment of Senior Debt or Debt of a Wholly Owned
Subsidiary as described in Section 4.09(a)(ii)(A) and (ii) any
acquisition of Tangible Property as described in Section
4.09(a)(ii)(B), the Issuer will be required to purchase
Securities tendered pursuant to an offer by the Issuer for the
Securities (the "Offer") at a purchase price equal to not less
than 100% of their principal amount, plus accrued interest to the
Purchase Date (subject, in each case, to the right of Holders of
record on the relevant date to receive interest due on the
relevant interest Payment Date), in accordance with the
procedures (including prorating in the event of oversubscription)
set forth in Section 4.09(c). If the aggregate purchase price of
Securities tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Securities, the
Issuer shall apply the remaining Net Available Cash in accordance
with Section 4.09(a)(ii)(A) or (B). The Issuer shall not be
required to make an Offer for Securities pursuant to this Section
if the Net Available Cash available therefor (after application
of proceeds as provided in Section 4.09(a)(ii)(A) and (B)) is
less than $5,000,000 for any particular Asset Disposition (which
lesser amounts shall not be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 90 days (or
such other period as may be required for compliance with Section
4.12 of the First Mortgage Bonds Indenture) after the later of
the date of each Asset Disposition as to which the Issuer must
apply Net Available Cash in accordance with
Section 4.09(a)(ii)(C) or the receipt of Net Available Cash
therefrom, the Issuer shall be obligated to deliver to the
Trustee and send, by firstclass mail to each Holder, a written
notice stating that the Holder may elect to have his Securities
purchased by the Issuer either in whole or in part (subject to
prorationing as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price specified in
Section 4.09(b). The notice containing an Offer shall specify a
purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date") and shall contain
information concerning the business of the Issuer which the
Issuer in good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (i) the most
recently filed Annual Report on Form 10K (including audited
consolidated financial statements) of the Issuer, the most recent
subsequently filed Quarterly Report on Form 10Q and any Current
Report on Form 8K of the Issuer filed subsequent to such
Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or
corresponding successor reports), or if the Issuer becomes no
longer subject to the Exchange Act, equivalent information,
(ii) a description of material developments in the Issuer's
business subsequent to the date of the latest of such Reports,
and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to
tender Securities pursuant to the Offer, together with the
information contained in clause (3) of this Section 4.09(c).
(2) Not later than the date upon which written notice
of an Offer is delivered to the Trustee as provided below, the
Issuer shall deliver to the Trustee an Officers' Certificate as
to (i) the amount of the Offer (the "Offer Amount"), (ii) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of
Section 4.09(a). On such date, the Issuer shall also irrevocably
deposit in trust with the Trustee or with a paying agent (or, if
the Issuer is acting as its own paying agent, segregate and hold
in trust) in immediately available funds an amount equal to the
Offer Amount to be held by the Trustee or with a paying agent in
trust for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Issuer shall deliver to
the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Issuer. The
Trustee shall, on the Purchase Date, to the extent it has
received sufficient funds from the Issuer, mail payment to each
Holder who has surrendered Securities to the Issuer as provided
in paragraph(3) below in the amount of the purchase price. In
the event that the aggregate purchase price of the Securities
delivered by the Issuer to the Trustee is less than the Offer
Amount, the Trustee shall deliver the excess to the Issuer
immediately after the expiration of the Offer Period.
(3) Holders electing to have a Security purchased will
be required to surrender the Security, with an appropriate form
duly completed, to the Issuer at the address specified in the
notice at least ten Business Days prior to the Purchase Date.
Holders will be entitled to withdraw their election if the
Trustee or the Issuer receives not later than three Business Days
prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Issuer shall
select the Securities to be purchased on a pro rata basis in
accordance with the principles set forth in Section 3.04 (with
such adjustments as may be deemed appropriate by the Issuer so
that only Securities in denominations of $1,000, or integral
multiples thereof, shall be purchased). Holders whose Securities
are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Issuer delivers Securities to the
Trustee which are to be accepted for purchase, the Issuer will
also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this Section. To the extent
that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH
AFFILIATES. The Issuer shall not, and shall not permit any
Subsidiary to, conduct any business or enter into any transaction
or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any
service) with any Affiliate of the Issuer or any legal or
beneficial owner of five percent or more of any class of Capital
Stock of the Issuer or with any Affiliate of such owner (other
than a Wholly Owned Subsidiary of the Issuer or an employee stock
ownership plan for the benefit of the Issuer's or a Subsidiary's
employees) unless (i) the terms of such business, transaction or
series of transactions are (a) set forth in writing and (b) as
favorable to the Issuer or such Subsidiary as terms that would be
obtainable at the time for a comparable transaction or series of
related transactions in arm'slength dealings with an unrelated
third Person and (ii) the Board of Directors has, by resolution,
determined in good faith that such business or transaction or
series of related transactions meets the criteria set forth in
(i) above. This Section, however, will not prohibit any dividend
or distribution permitted under Section 4.04 hereof.
SECTION 4.11. CHANGE OF CONTROL. (a) Upon a Change
of Control, each Holder shall have the right to require that the
Issuer repurchase such Holder's Securities at a purchase price in
Cash equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase (subject to
the right of Holders of record on the relevant date to receive
interest due on the relevant interest Payment Date), in
accordance with the terms contemplated in Section 4.11(b).
(b) Within 30 days following any Change of Control,
the Issuer shall mail a notice to each Holder with a copy to the
Trustee stating:
(1) that a Change of Control has occurred and that
such Holder has the right to require the Issuer to purchase
all or part of such Holder's Securities at a purchase price
in Cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest
Payment Date);
(2) the circumstances and relevant facts regarding
such Change of Control (including, but not limited to,
information with respect to pro forma historical income,
cash flow and capitalization after giving effect to such
Change of Control);
(3) the repurchase date (which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date
such notice is mailed); and
(4) the instructions determined by the Issuer,
consistent with this Section, that a Holder must follow in
order to have its Securities purchased.
(c) Holders electing to have a Security purchased will
be required to surrender the Security, with an appropriate
election form duly completed, to the Issuer at the address
specified in the notice at least 10 Business Days prior to the
purchase date. Holders will be entitled to withdraw their
election if the Trustee or the Issuer receives not later than
three Business Days prior to the purchase date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such
Holder is withdrawing its election to have such Security
purchased.
(d) On the purchase date, all Securities purchased by
the Issuer under this Section shall be delivered by the Trustee
for cancellation, and the Issuer shall pay the purchase price
plus accrued and unpaid interest, if any, to the Holders entitled
thereto.
(e) The Issuer shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this Section 4.11. To the
extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 4.12. APPOINTMENT OF AGENTS. As long as any
of the Securities remain Outstanding, the Issuer will maintain
one or more agencies where notices and demands (other than in
respect of payment on the Securities) by Holders of Securities to
or upon the Issuer in respect of the Securities or this Indenture
may be served and where the Securities may be presented for
payment by the Issuer and for registration of transfer and for
exchange as in this Indenture provided. In addition, the Issuer
hereby appoints the Trustee at its Corporate Trust Office as the
paying agent of the Issuer, but the Issuer shall have the right
at any time and from time to time to vary or terminate any such
appointment as paying agent and to appoint additional and other
such agents. The Issuer will give to the Trustee notice of the
location of such additional and other offices or agencies of the
Issuer and of any change in the location of any of such offices
or agencies. No agent appointed by the Issuer pursuant to this
Section 4.12 shall be liable to the Issuer or to the Holder of
any Security except in the case of its own negligent action, its
own negligent failure to act or its own willful misconduct.
The Issuer hereby appoints the Trustee as Security
Registrar and paying agent for the Securities. The Corporate
Trust Office of the Trustee, at the date of this Indenture, is at
114 West 47th Street, 15th Floor, New York, New York 10036-1532,
Attention: Corporate Trust Division.
The Issuer agrees that at least one of the agencies
where the notices and demands referred to in this Section 4.12
may be served will, for as long as any of the Securities remain
Outstanding, be maintained in New York, New York. The Issuer
hereby initially appoints the Trustee at its Corporate Trust
Office as its agent for receipt of such notices and demands.
SECTION 4.13. PAYING AGENTS TO HOLD FUNDS IN TRUST.
Whenever the Issuer shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section 4.13,
(a) that it will hold all sums held by it as such
agent for the payment of the principal of, and interest on
the Securities in trust for the benefit of the Holders of
the Securities or the Trustee and will notify the Trustee of
the receipt of sums to be so held, and
(b) that it will give the Trustee notice of any
failure by the Issuer to make any payment of the principal
of, or interest on the Securities when the same shall be due
and payable.
SECTION 4.14. APPOINTMENT OF TRUSTEE BY ISSUER.
Whenever necessary to avoid or fill a vacancy in the office of
the Trustee, the Issuer will appoint, in the manner provided in
Section 7.08, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 4.15. AVAILABILITY OF INFORMATION. The
Trustee shall preserve, in as current a form as is reasonably
practicable, the most recent list available to it of the names
and addresses of the Holders of the Securities. From time to
time, whenever reasonably requested by the Trustee, but in any
event at intervals of not more than six months, the Issuer will
furnish or make available to the Trustee such information as may
be necessary to permit the Trustee to carry out its duties
hereunder. If at any time the Trustee shall not be the Security
Registrar, the Issuer will furnish or cause to be furnished to
the Trustee monthly not later than five Business Days before each
Payment Date and at such other times as the Trustee may
reasonably request a list in such form as the Trustee may
reasonably require of the names and addresses of Holders of
Securities as of the Record Date for such Payment Date.
SECTION 4.16. BOOKS OF ACCOUNT; INSPECTION BY THE
TRUSTEE; NOTICES; STATEMENTS AS TO COMPLIANCE. (a) The Issuer
will keep or cause to be kept proper books of record and account,
in which full, true and correct entries shall be made of all
dealings or transactions of or in relation to the Securities.
(b) The Issuer shall deliver to the Trustee within 120
days after the end of each fiscal year of the Issuer an Officers'
Certificate stating whether or not the signers know of any
Default or Event of Default that occurred during such period,
describing such Default or Event of Default, if any, and its
status.
(c) The Issuer agrees promptly to give notice to the
Trustee of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default (after any applicable grace period
has expired) under any material provision of any agreement,
instrument or undertaking to which the Issuer or a
Subsidiary is a party or by which any of them or any of
their respective properties is bound or (B) litigation,
investigation or proceeding which may exist at any time
between the Issuer or a Subsidiary and any Person, which
default or litigation, if adversely determined, could have a
material adverse effect on the business, operations or
condition, financial or otherwise, of the Issuer and its
Subsidiaries, taken as a whole, or any of their properties;
(iii) any litigation or proceeding affecting the Issuer
or a Subsidiary in which the amount involved is $500,000 or
more and is either not covered by insurance or is covered by
insurance as to which the insurer has disclaimed liability
or in which injunctive or similar relief is sought; or
(iv) a material adverse change in the business,
operations or condition, financial or otherwise, of the
Issuer and its Subsidiaries, taken as a whole.
Each notice given pursuant to this Section 4.16(c) shall be
accompanied by an Officers' Certificate setting forth details of
the occurrence referred to therein and stating what action, if
any, the Issuer proposes to take with respect thereto.
The statements and other information furnished to the
Trustee under this Section are to be retained by the Trustee in
its files. Copies of such information pursuant to this Section
shall be provided by the Trustee upon request only to the Holders
of Securities at the Issuer's expense or their duly designated
representatives or agents, and the Trustee shall be under no
other duty with respect to the same.
SECTION 4.17. PAYMENT OF TAXES AND OTHER CLAIMS. The
Issuer will, and will cause each of its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before any fines or
penalties are imposed, (a) all taxes, assessments and
governmental charges levied or imposed upon it or upon its
income, profits or property and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
Lien upon its property in such amount as may be material to the
Issuer; provided, however, that the Issuer shall have the right,
at its sole cost and expense, to contest or object in good faith
to the amount or validity of any tax, assessment, charge or claim
by appropriate legal proceedings for which appropriate
provisions, if any, as shall be required by generally accepted
accounting principles, shall have been made, but such right shall
not be deemed or construed in any way as relieving, modifying or
extending the Issuer's covenant to pay such tax, assessment,
charge or claim at the time and in the manner provided in this
Section, unless the Issuer has given _____ days prior written
notice to the Trustee of its intent so to contest or object.
SECTION 4.18. CORPORATE EXISTENCE AND RIGHTS. The
Issuer will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to preserve and keep in
full force and effect its existence and franchises; provided,
however, that the Issuer shall not be required to preserve any
such franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material
respect to the Holders of the Securities and shall deliver to the
Trustee an Officers' Certificate to that effect; provided,
further, however, that this Section 4.18 shall not prohibit the
merger of a Subsidiary into another Subsidiary or the merger of a
Subsidiary into the Issuer. Any determination by the Issuer
reflected in an Officers' Certificate delivered to the Trustee
pursuant to the first proviso of this Section 4.18 shall be
binding on the Trustee.
SECTION 4.19. MAINTENANCE OF PROPERTIES. The Issuer
shall cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Issuer may be
necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that
nothing in this Section shall prevent the Issuer from (or require
the Issuer to cause any Subsidiary to avoid) discontinuing the
operation or maintenance or disposing of any of such properties
if such discontinuance or disposition is, in the judgment of the
Board of Directors or the board of directors of the Subsidiary
concerned, or of any officer (or other agent employed by the
Issuer or any Subsidiary) having been delegated corporate
authority for any such property, in each case, in good faith,
desirable in the conduct of its business or the business of any
Subsidiary.
SECTION 4.20. MAINTENANCE OF INSURANCE. The Issuer
shall, and shall cause its Subsidiaries to, keep at all times all
of their properties which are of an insurable nature insured
(including appropriate self-insurance) against loss or damage
with insurers believed by the Issuer to be responsible to the
extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties in
accordance with good business practice unless such failure to
provide or cause to be provided such insurance would not have a
material adverse effect on the business affairs, financial
position, stockholder's equity or results of operations of the
Issuer and its Subsidiaries, considered on a consolidated basis.
SECTION 4.21. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Issuer to the
Trustee to take any action under this Indenture, the Issuer shall
furnish to the Trustee upon the Trustee's request:
(1) an Officers' Certificate, in form and substance
reasonably satisfactory to the Trustee, stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with;
(2) an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with; and
(3) if appropriate, a certificate from Independent
Accountants.
SECTION 4.22. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION. Each certificate or opinion with regard to compliance
with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion
of such Person, such covenant or condition has been complied
with.
SECTION 4.23. FURTHER INSTRUMENTS AND ACTS. Upon
request of the Trustee, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of
this Indenture.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of
Default" occurs if:
(1) the Issuer defaults in the payment of interest on
any Security when the same becomes due and payable, whether
or not such payment shall be prohibited by Article 10, and
such default continues for a period of 30 days;
(2) the Issuer (i) defaults in the payment of the
principal of any Security when the same becomes due and
payable at its Stated Maturity, upon redemption, upon
declaration or otherwise or (ii) fails to redeem or purchase
Securities when required pursuant to this Indenture or the
Securities, in either case whether or not such payment shall
be prohibited by Article 10;
(3) the Issuer fails to comply with the requirements
for consolidation, merger or conveyance, transfer or lease
of all or of substantially all of the Issuer's assets, as
set forth in Article Nine;
(4) the Issuer fails to observe or perform any of its
covenants or agreements set forth in the Securities or in
this Indenture (other than those referred to in clauses (1),
(2) or (3) above) and the Default continues for a period of
30 days after the notice specified below;
(5) Debt of the Issuer or any of its Subsidiaries is
not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of
a default, the total amount of such Debt unpaid or
accelerated exceeds $5,000,000 or its foreign currency
equivalent and such default continues for 10 days after the
notice specified below;
(6) the Issuer or any of its Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(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 any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any of
its Subsidiaries in an involuntary case;
(B) appoints a custodian of the Issuer or any of
its Subsidiaries or for any substantial part of their
respective property; or
(C) orders the winding up or liquidation of the
Issuer or any of its Subsidiaries;
or any similar relief is granted under any foreign laws and
the order or decree remains unstayed and in effect for 60
days;
(8) any judgment or decree for the payment of money in
excess of $5,000,000 is rendered against the Issuer or any
of its Subsidiaries and is not discharged and either (A) an
enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a period of 60
days following such judgment or decree during which such
judgment or decree is not discharged, waived or the
execution thereof stayed and, in the case of (B), such
default continues for 10 days after the notice specified
below.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or other
order, rule or regulation of any administrative or governmental
body.
Notwithstanding the foregoing, a Default under
clause (4), (5) or (8)(B) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Issuer of the Default and the Issuer does
not cure such Default within the time specified after receipt of
such Notice. Such Notice must specify the Default, demand that
it be remedied and state that such Notice is a "Notice of
Default".
The Issuer shall deliver to the Trustee, within 30 days
after the occurrence thereof, written notice in the form of an
Officers' Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default
under clause (4), (5) or (8) hereof, its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02. ACCELERATION. If an Event of Default
(other than an Event of Default specified in Section 5.01(6) or
(7) with respect to the Issuer) occurs and is continuing, the
Trustee by notice to the Issuer, or the Holders of at least 25%
in principal amount of the Outstanding Securities by notice to
the Trustee and the Issuer may declare the unpaid principal of
and accrued interest on all the Securities and all other amounts
due hereunder or thereunder to be due and payable; provided that
upon the occurrence of an Event of Default described in
clause (6) or (7) of Section 5.01, the principal of and accrued
interest on all of the Securities shall automatically become due
and payable, without presentment, demand or other requirements of
any kind, all of which are hereby expressly waived by the Issuer.
Upon such a declaration, such principal, interest and all other
amounts shall be due and payable immediately.
The Holders of a majority in principal amount of the
Securities by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not
conflict with any judgment or decree, if no amounts have been
paid to the Holders as principal or interest on the Securities as
a result of such acceleration, and if all existing Events of
Default have been cured or waived pursuant to the terms of this
Indenture except nonpayment of principal or interest that has
become due solely because of acceleration.
SECTION 5.03. OTHER REMEDIES. If an Event of Default
occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity or otherwise to collect
the payment of principal of or interest on the Securities or to
enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
Holder of Securities in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 5.04. WAIVER OF PAST DEFAULTS. Subject to
Section 8.02, the Holders of a majority in principal amount of
the Outstanding Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except
(a) a Default in the payment of the principal of, or interest on
a Security or (b) a Default in respect of any covenant or
provision of this Indenture that under Section 8.02 cannot be
amended or modified without the consent of the Holder of each
Security affected thereby. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
consequent right.
SECTION 5.05. CONTROL BY MAJORITY. The Holders of a
majority in principal amount of the Securities may direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or
power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability.
SECTION 5.06. LIMITATION ON SUITS. A Holder of
Securities may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of
the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability
or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
security or indemnity; and
(5) the Holders of a majority in principal amount of
the Securities do not give the Trustee a direction
inconsistent with the request during such 60day period.
A Holder of Securities may not use this Indenture to
prejudice the rights of another Holder or to obtain a preference
or priority over another Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on
the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected adversely without the
consent of such Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE. If an Event
of Default in payment of interest or principal specified in
Section 5.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express
trust against the Issuer (or any other obligor upon the
Securities) for the whole amount of principal and interest
remaining unpaid and the amounts provided for in Section 7.07.
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 5.10. PRIORITIES. If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the
following order:
FIRST: to the Trustee for amounts due under
Section 7.07, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
SECOND: to Securityholders for the payment of the
whole amount then owing and unpaid upon the Securities for
principal and interest; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Securities, then to the payment of such
principal and interest, without preference or priority of
principal over interest, or interest over principal, or of
any Interest Payment over any other Interest Payment, or of
any Securities over any other Securities, ratably to the
aggregate of such principal and interest;
THIRD: to the payment of any remaining Obligations;
and
FOURTH: the balance, if any, to the Issuer, its
successors or assigns or to whomsoever may be lawfully
entitled to receive the same, or as a court of competent
jurisdiction may determine.
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section. At
least 15 days before such record date, the Issuer shall mail to
each Securityholder a notice that states the record date, the
payment date and amount to be paid.
SECTION 5.11. UNDERTAKING FOR COSTS. In any suit for
the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 5.07 or a suit by Holders
of more than 10% in aggregate principal amount of the Securities
then Outstanding.
SECTION 5.12. WAIVER OF STAY OR EXTENSION LAWS. The
Issuer (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 6.01. DISCHARGE OF LIABILITY ON SECURITIES;
DEFEASANCE. When (i) the Issuer delivers to the Trustee all
Outstanding Securities (other than Securities replaced pursuant
to Section 2.07) for cancellation or (ii) all Outstanding
Securities have become due and payable and the Issuer irrevocably
deposits or causes to be deposited with the Trustee funds
sufficient to pay at maturity all Outstanding Securities,
including interest thereon (other than Securities replaced
pursuant to Section 2.07) solely for the benefit of the Holders
for such purpose, and if in either case the Issuer pays all other
Obligations, then this Indenture shall, subject to
Sections 6.01(c) and 6.06, cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Issuer.
(b) Subject to Sections 6.01(c), 6.02 and 6.06, the
Issuer at any time may terminate (i) all its obligations under
the Securities and this Indenture ("legal defeasance option") or
(ii) its obligations under Sections 4.01, 4.03, 4.04, 4.05, 4.06,
4.07, 4.08, 4.09, 4.10, 4.11, 4.16 (with respect to clauses (a)
and (c)(ii) through (c)(iv)), 4.17, 4.18 (as to Subsidiaries),
9.01 (iii) and 9.01(iv) and the operation of 5.01(4) (with
respect to those provisions of Article Four cited in this
clause (ii)) 5.01(5), 5.01(6) (with respect to any Subsidiary),
5.01(7) (with respect to any Subsidiary) and 5.01(8) ("covenant
defeasance option"). The Issuer may exercise its legal
defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Issuer exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an
Event of Default. If the Issuer exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in 5.01(4)
(with respect to those provisions of Article Four cited in
clause (ii) above), 5.01(5), 5.01(6) (with respect to any
Subsidiary), 5.01(7) (with respect to any Subsidiary) or 5.01(8)
or because of the failure of the Issuer to comply with
Section 9.01(iii) or 9.01(iv).
Upon satisfaction of the conditions set forth herein
and upon request of the Issuer, the Trustee shall acknowledge in
writing the discharge of those obligations that the Issuer
terminates.
(c) Notwithstanding clauses (a) and (b) above, the
Issuer's obligations in Sections 2.06, 2.07, 2.09, 4.12, 4.13,
4.14, 4.15, 4.16 (with respect to clauses (b) and (c)(i)), 4.19,
4.20, 6.04, 6.05, 6.06, 7.07 and 7.08, shall survive until the
Securities have been paid in full. Thereafter, the Issuer's
obligations in Sections 6.04, 6.05 and 7.07 shall survive.
SECTION 6.02. CONDITIONS TO DEFEASANCE. The Issuer
may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Issuer irrevocably deposits in trust with the
Trustee Cash or U.S. Government Obligations for the payment
of principal of, and interest on, the Securities to the date
of maturity or redemption, as the case may be;
(2) the Issuer delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited Cash without
investment will provide Cash at such times and in such
amounts (but, in the case of the legal defeasance option
only, not more than such amounts) as will be sufficient to
pay principal and interest when due on all Securities to
maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during
the 123-day period no Default specified in Section 5.01(6)
or (7) with respect to the Issuer occurs which is continuing
at the end of the period;
(4) no Default has occurred and is continuing on the
date of such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under
any other agreement binding on the Issuer;
(6) the Issuer delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the
Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Issuer has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) 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 Securityholders
will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same time as would have been the case
if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the
Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securityholders will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same time as would have been the case
if such covenant defeasance had not occurred; and
(9) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 6 have been
complied with.
Before or after a deposit, the Issuer may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 6.03. APPLICATION OF TRUST MONEY. The Trustee
shall hold in trust Cash or U.S. Government Obligations deposited
with it pursuant to this Article 6. It shall apply the deposited
Cash and the Cash from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment
of principal of and interest on the Securities.
SECTION 6.04. REPAYMENT TO ISSUER. The Trustee and
the Paying Agent shall promptly turn over to the Issuer upon
request any excess Cash or securities held by them at any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Issuer upon request
any Cash held by them for the payment of principal or interest
that remains unclaimed for two years, and, thereafter,
Securityholders entitled to the Cash must look to the Issuer for
payment as general creditors.
SECTION 6.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Issuer shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited
U.S. Government obligations or the principal and interest
received on such U.S. Government Obligations.
SECTION 6.06. REINSTATEMENT. If the Trustee or Paying
Agent is unable to apply any Cash or U.S. Government Obligations
in accordance with this Article 6 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuer's obligations under this
Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 6 until
such time as the Trustee or Paying Agent is permitted to apply
all such Cash or U.S. Government obligations in accordance with
this Article 6; provided, however, that, if the Issuer has made
any payment of interest on or principal of any Securities because
of the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Securities to
receive such payment from the Cash or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture, and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Sections 5.02, 5.04 or 5.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this Section.
(e) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Issuer. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may
rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on the Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided that the
Trustee's conduct does not constitute negligence.
(e) The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such work or direction.
(g) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Issuer shall be sufficient if signed by an Officer of the Issuer.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it
were not Trustee. Any paying agent, Registrar or coregistrar may
do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall
not be responsible for and makes no representation as to the
validity, adequacy or enforceability of this Indenture or the
Securities. The Trustee shall not be accountable for the
Issuer's use of proceeds from the Securities or any money paid to
the Issuer or upon the Issuer's direction under any provision of
this Indenture, the Trustee shall not be responsible for the use
or application of any money received from any paying agent other
than the Trustee, and the Trustee shall not be responsible for
any statement or recital herein or in the Securities or any other
document in connection with the sale of Securities or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or an
Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder of Securities,
as their names and addresses appear on the Security Register,
notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default in payment of principal
of, or interest on any Security, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in
good faith determines that the withholding of such notice is in
the interests of Holders of Securities. The Trustee shall not be
deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Section
5.01(1) or Section 5.01(2) of this Indenture, if the Trustee is
then acting as Paying Agent, or (ii) any Default or Event of
Default of which a Trust Officer shall have received written
notification from the Issuer or a Securityholder, and such
notification shall not be deemed to include receipt of
information contained in any report or other document furnished
under Section 4.03 of this Indenture.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As
promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior
to July 15 in each year and within 12 months from the date the
prior report hereunder was transmitted to the Holders of
Securities, the Trustee shall mail to each Holder of Securities
in accordance with TIA Section 313(c), a brief report dated as of
May 15 that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA
Section 313(b).
A copy of each report at the time of its mailing to
Holders of Securities shall be filed with the SEC and each stock
exchange, if any, on which to the Trustee's actual knowledge the
Securities are listed; the Issuer agrees to notify promptly the
Trustee whenever the Securities become listed on any stock
exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Issuer
shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon the
Trustee's request, in addition to compensation for its services
for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by it, including, without limitation,
the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents and counsel. The Issuer shall
indemnify the Trustee against any loss, liability or expense
incurred by it without negligence or bad faith on its part in
connection with the acceptance or the administration of this
trust and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder. The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity.
However, failure by the Trustee to so promptly notify the Issuer
shall not relieve the Issuer of its obligations under this
paragraph except to the extent such failure shall have materially
prejudiced the Issuer. The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. If the Trustee is
advised by counsel that it may have available to it defenses
which are in conflict with any defenses available to the Issuer,
then the Issuer may have separate counsel and the Issuer shall
pay the reasonable fees and expenses of such counsel. The Issuer
need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. The Issuer need not
reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through negligence or bad faith.
To secure the Issuer's payment obligations in this
Section, the Trustee shall have a Lien prior to the Securities on
all Cash or property held or collected by the Trustee, except
that held in trust to pay principal and interest on particular
Securities.
The Issuer's payment obligations pursuant to this
Section shall survive the discharge of this Indenture and the
resignation or removal of the Trustee. When the Trustee incurs
expenses or renders services after the occurrence of an Event of
Default specified in subsection 5.01(6) or (7), the expenses and
compensation for the services are intended to constitute expenses
of administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may
resign and be discharged from the trust created hereby by so
notifying the Issuer. The Holders of a majority in aggregate
principal amount of the Outstanding Securities may remove the
Trustee by so notifying the Trustee and the Issuer and may
appoint a successor Trustee. The Issuer may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, then, unless the
Holders of Securities have appointed a Successor Trustee as
provided above, the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Issuer.
Immediately after receiving such acceptance, the retiring Trustee
shall transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07, the resignation or removal of the retiring Trustee
shall then become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities. Notwithstanding
replacement of the Trustee pursuant to this Section, the Issuer's
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Issuer or the Holders of a majority in
aggregate principal amount of the Outstanding Securities may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Holder of Securities may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee. In determining whether the Trustee has
conflicting interests as defined in TIA Sec-tion 310(b)(1), the
provisions contained in the proviso to Section 310(b)(1) shall be
deemed incorporated herein.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee. In determining whether the Trustee has conflicting
interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to Section 310(b)(1) shall be deemed
incorporated herein.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The
Trustee shall at all times satisfy the requirements of TIA
Sections 310(a)(1) and (a)(2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b) during the period of time
required thereby.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST CORPORATION. The Trustee shall comply with
TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. WITHOUT CONSENT OF HOLDERS. The Issuer
and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder of
Securities:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 9;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(4) to make any change that does not adversely affect
the rights of any Holder of Securities; or
(5) to comply with any requirement of the SEC in
connection with the qualification of this Indenture under
the TIA.
After an amendment under this Section becomes
effective, the Issuer shall mail to Securityholders a notice
briefly describing such amendment. Failure to mail such notice
to all Securityholders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 8.02. WITH CONSENT OF HOLDERS. The Issuer may
amend or supplement this Indenture or the Securities without
notice to any Holder but with the written consent of the Holders
of at least a majority in aggregate principal amount of the
Outstanding Securities. The Holders of a majority in aggregate
principal amount of the Outstanding Securities may waive any past
default or compliance by the Issuer with any provision of this
Indenture or the Securities without notice to any Holder.
However, without the consent of each Holder affected, an
amendment or supplement to this Indenture or waiver may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment
of interest on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Article 10 that adversely
affects the rights of any Securityholder;
(6) change the time at which or circumstances under
which any Securities may be redeemed or repurchased;
(7) impair the right of any Securityholder to receive
payment of principal of and interest on such
Securityholders' Securities on or after the due dates
thereof or to institute suit for the enforcement of any
payment on or with respect to such holders' securities;
(8) make any change in Section 5.04 or 5.07 or this
Section; or
(9) waive any Default in the payment of principal of
or interest on any Security.
It shall not be necessary for the consent of the
Holders of the Securities under this Section 8.02 to approve the
particular form of any proposed amendment or supplement, but it
shall be sufficient if such consent shall approve the substance
thereof.
An amendment under this Section may not make any change
that adversely affects the rights under Article 10 of any holder
of Superior Debt then outstanding unless the holders of the issue
required pursuant to its terms consent to such change.
After an amendment under this Section becomes
effective, the Issuer shall mail to Holders a notice briefly
describing such amendment. The failure to mail such notice to
all Holders shall not affect the validity of an amendment under
this Section.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture executed
pursuant to this Article 8 shall comply with the TIA as then in
effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS. A
consent to an amendment, supplement or waiver by a Holder of a
Security shall bind such Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent as to such Holder's
Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or
waiver becomes effective. After an amendment, supplement or
waiver becomes effective, it shall bind every Holder unless it
makes a change described in clauses (1) through (6) of
Section 8.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security
that evidences the same Debt as the consenting Holder's Security.
The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders
entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons or Securityholders
at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such
record date. No such consents shall be valid or effective for
more than 120 days after such record date.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms. Failure to make an appropriate notation or
issue a new security shall not affect the validity and effect of
such amendment, supplement or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee
shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the
Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by
this Indenture and that it is not inconsistent herewith and that
it will be valid and binding on the Issuer in accordance with its
terms.
SECTION 8.07. WAIVER OF COMPLIANCE BY HOLDERS.
Anything in this Indenture to the contrary notwithstanding, any
of the acts which the Issuer is required to do or is prohibited
from doing by any of the provisions of this Indenture may, to the
extent that such provisions might be changed or eliminated by a
supplemental indenture pursuant to Section 8.02 hereof upon
consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding, be omitted or
done by the Issuer if there is obtained the prior written consent
thereto of the Holders of a majority of the aggregate principal
amount of the Securities at the time Outstanding, or the prior
written waiver of compliance with any such provision or
provisions signed by such Holders. The Issuer agrees promptly to
file with the Trustee a duplicate original of each such consent
or waiver.
ARTICLE NINE
SUCCESSOR COMPANY
SECTION 9.01. WHEN ISSUER MAY MERGE OR TRANSFER
ASSETS. The Issuer shall not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if
not the Issuer) shall be a Person organized and existing
under the laws of the United States of America, any State
thereof or the District of Columbia and such Person shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Issuer under the
Securities and this Indenture;
(ii) immediately prior to and after giving effect to
such transaction (and treating any Debt which becomes an
obligation of the resulting, surviving or transferee Person
or any Subsidiary as a result of such transaction as having
been issued by such Person or such Subsidiary at the time of
such transaction), no Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such
transaction, the Consolidated EBITDA Coverage Ratio of the
Successor Company is at least 1:1; provided, however, that,
if the Consolidated EBITDA Coverage Ratio of the Issuer
before giving effect to such transaction is within the range
set forth in column (A) below, then the Consolidated EBITDA
Coverage Ratio of the Successor Company, as the case may be,
shall be at least equal to the lesser of (1) the ratio
determined by multiplying the percentage set forth in column
(B) below by the Consolidated EBITDA Coverage Ratio prior to
such transaction and (2) the ratio set forth in column C
below:
(A) (B) (C)
1.11:1 to 1.99:1 90% 1.50:1
2.00:1 to 2.99:1 80% 2.10:1
3.00:1 to 3.99:1 70% 2.40:1
4.00:1 or more 60% 2.50:1
(iv) immediately after giving effect to such
transaction, the resulting, surviving or transferee Person
shall have Consolidated Net Worth in an amount which is not
less than the Consolidated Net Worth of the Issuer prior to
such transaction; and
(v) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel prior to the
consummation of such transaction, each stating that such
consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture.
The resulting, surviving or transferee Person shall be
the successor Issuer and shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under
this Indenture, but the predecessor Issuer in the case of a
conveyance, transfer or lease shall not be released from the
obligation to pay the principal of and interest on the
Securities.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The Issuer
agrees, and each Holder by accepting a Security agrees, that the
Debt evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article
10, to the prior payment of all Superior Debt and that the
subordination is for the benefit of the holders of Superior Debt,
but the Securities shall in all respects rank pari passu with all
other Senior Subordinated Debt of the Issuer. The Securities
shall rank senior to all existing and future Debt of the Issuer
which is neither Superior Debt nor Senior Subordinated Debt and
only Debt of the Issuer which is Superior Debt shall rank senior
to the Securities in accordance with the provisions set forth
herein.
SECTION 10.02. CERTAIN DEFINITIONS. "Representatives"
means any of United States National Bank of Oregon, the Bond
Trustee and any other trustee, agent or representative for the
holders of Superior Debt, and "Representative" means any of them.
"Superior Debt" means (a) the principal of, and premium
(if any) and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Issuer whether or not a claim
for postfiling interest is allowed in such proceeding) on (i)
indebtedness of the Issuer for money borrowed, whether
outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, together with all
amounts for fees and expenses due to the agent banks under the
New Credit Agreement and other Representatives, and all
reimbursement and other contingent obligations with respect to
letters of credit issued in accordance with the New Credit
Agreement, (ii) guarantees by the Issuer of indebtedness for
money borrowed by any other Person, whether outstanding on the
date of execution of this Indenture or thereafter created,
incurred or assumed, (iii) obligations of the Issuer under any
agreement to lease, or any lease of, any real or personal
property, which in accordance with generally accepted accounting
principles, is classified upon the Issuer's consolidated balance
sheet as a liability, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, and (iv)
indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness for the payment of which the Issuer
is responsible or liable, by guarantees or otherwise, whether
outstanding of this Indenture or thereafter created, incurred or
assumed and (b) modifications, renewals, extensions, replacements
and refundings of any such indebtedness, obligations or
guarantees; unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligations or guarantees, or such
modifications, renewals, extensions or refundings thereof, are
not superior in right of payment to the Securities; provided,
however, that Superior Debt shall not be deemed to include (1)
any obligation of the Issuer to any Subsidiary, (2) any accounts
payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities), (3) any indebtedness,
guarantee or obligation of the Issuer of the type described in
clause (a) or (b) above which is subordinate or junior in any
respect to any other indebtedness, guarantee or obligation of the
Issuer or (4) the portion of any Debt issued in violation of
section 4.05 or 4.06 hereof.
"Senior Subordinated Debt" means the Securities and any
other indebtedness, guarantee or obligation of the Issuer of the
type described in clause (a) or (b) in the definition of Superior
Debt, which by its terms or the terms of the instrument creating
or evidencing the same or pursuant to which the same is
outstanding contains for the benefit of the holders of Superior
Debt provisions no less favorable to such holders than the
subordination provisions of the Securities and ranks pari passu
with the Securities. Any indebtedness, guarantee or obligation
of the Issuer which is subordinate or junior in ranking in any
respect to any other such indebtedness, guarantee or obligation
will be subordinate to Senior Subordinated Debt unless the
instrument creating or evidencing the same or pursuant to which
the same is outstanding specifically provides that such
indebtedness, guarantee or obligation is to rank pari passu with
other Senior Subordinated Debt.
SECTION 10.03. LIQUIDATION, DISSOLUTION, BANKRUPTCY.
Upon any distribution to creditors of the Issuer in a liquidation
or a total or partial dissolution of the Issuer or in a
bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Issuer or its property:
(1) holders of Superior Debt shall be entitled to
receive payment in full of the Superior Debt before Holders
shall, subject to Section 10.14, be entitled to receive any
payment of principal of, or premium, if any, or interest on
the Securities (other than shares of stock or subordinated
indebtedness provided by a plan of reorganization or
adjustment which does not alter the rights of holders of
Superior Debt); and
(2) until the Superior Debt is paid in full, any
distribution to which Holders would be entitled but for this
Article 10 shall be made to holders of Superior Debt as
their interests may appear, except that Holders may receive
securities that are subordinated to Superior Debt to at
least the same extent as the Securities.
For purposes of this Section, "payment in full", as used with
respect to Superior Debt, means the receipt of cash or securities
(taken at their fair value at the time of receipt, determined as
hereinafter provided) of the principal amount of the Superior
Debt and premium, if any, and interest thereon to the date of
such payment. "Fair value" means (a) if the securities are
quoted on a nationally recognized securities exchange, the
closing price on the day such securities are received or, if
there are no sales reported on that day, the reported closing bid
price on that day, and (b) if the securities are not so quoted, a
price determined by a nationally recognized investment banking
house selected by the Holders and the holders of Superior Debt
receiving such securities, such price to be determined as of the
date of receipt of such securities by the holders of Superior
Debt.
SECTION 10.04. DEFAULT ON SUPERIOR DEBT. The Issuer
may not pay principal of or interest on, the Securities or make
any deposit pursuant to Section 6.01 and may not repurchase,
redeem or otherwise retire any Securities if (i) any Superior
Debt is not paid when due and such default is not cured or waived
or (ii) any other default on Superior Debt occurs and the
maturity of such Superior Debt is accelerated in accordance with
its terms and such acceleration is not rescinded. In addition,
during the continuance of an event of default with respect to any
Superior Debt pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, upon the receipt by
the Issuer and the Trustee of written notice thereof from or on
behalf of the holders of a majority in aggregate principal amount
of such Superior Debt, the Issuer may not for a period of 180
days from the receipt of such notice take any action which would
be prohibited by the first sentence of this Section if any
Superior Debt had not been paid; provided, however, that nothing
in this Section shall have any effect on the rights of the
Holders to accelerate the maturity of the Securities pursuant to
Section 5.02; and provided further, that nothing in this sentence
shall prevent payment by the Issuer on the Securities after 120
days have passed following notice to the holders of Superior Debt
of such acceleration pursuant to Section 10.05.
SECTION 10.05. ACCELERATION OF PAYMENT OF SECURITIES.
If payment of the Securities is accelerated because of an Event
of Default, the Issuer or the Trustee shall promptly notify
holders of Superior Debt of the acceleration. The Issuer may not
pay the Securities until 120 days after the acceleration occurs
and, thereafter, may pay the Securities only if this Article 10
otherwise permits the payment at that time.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders that because of this Article
10 should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Superior Debt
and pay it over to them as their interests may appear.
SECTION 10.07. SUBROGATION. After all Superior Debt
is paid in full and until the Securities are paid in full,
Holders shall be subrogated to the rights of holders of Superior
Debt to receive distributions applicable to Superior Debt. A
distribution made under this Article 10 to holders of Superior
Debt which otherwise would have been made to Holders is not, as
between the Issuer and Holders, a payment by the Issuer on
Superior Debt.
SECTION 10.08. RELATIVE RIGHTS. This Article 10
defines the relative rights of Holders and holders of Superior
Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Holders, the
obligation of the Issuer, which is absolute and
unconditional, to pay principal and interest on the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising
its available remedies upon a Default, subject to the rights
of holders of Superior Debt to receive distributions
otherwise payable to Holders.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY
ISSUER. No right of any holder of Superior Debt to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Issuer or
by its failure to comply with this Indenture.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
The Trustee or Paying Agent may continue to make payments on the
Securities unless, not less than two Business Days prior to the
date of such payment, it receives notice satisfactory to it that
payments may not be made under this Article 10. The Issuer, the
Registrar or coregistrar, the Paying Agent, a Representative or a
holder of Superior Debt may give the notice; provided, however,
that if an issue of Superior Debt has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may
hold Superior Debt with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent
may do the same with like rights.
SECTION 10.11. DISTRIBUTION OR NOTICE TO
REPRESENTATIVE. Whenever a distribution is to be made or a
notice given to holders of Superior Debt, the distribution may be
made and the notice given to their Representative.
SECTION 10.12. ARTICLE 10 NOT TO PREVENT EVENTS OF
DEFAULT OR LIMIT RIGHT TO ACCELERATE. The failure to make a
payment pursuant to the Securities by reason of any provision in
this Article 10 shall not be construed as preventing the
occurrence of a Default or an Event of Default. Nothing in this
Article 10 shall have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Securities.
SECTION 10.13. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government
Obligations held in trust by the Trustee for the payment of
principal of, premium, if any, and interest on the Securities
shall not be subordinated to the prior payment of any Superior
Debt or subject to the restrictions set forth in this Article 10
and none of the Holders shall be obligated to pay over any such
amount to the Issuer or any holder of Superior Debt of the Issuer
or any other creditor of the Issuer.
SECTION 10.14. TRUSTEE ENTITLED TO RELY. Upon any
payment or distribution pursuant to this Article 10, the Trustee
and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 10.03 are
pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the
Trustee or the Holders or (iii) upon the Representatives for the
holders of Superior Debt for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution,
the holders of the Superior Debt and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect
to the right of any Person as a holder of Superior Debt to
participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Superior Debt held by such Person, the extent to which
such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such
Person under this Article 10, 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. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.
SECTION 10.15. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by accepting a Security authorizes and directs the
Trustee on his behalf to take such action as may be requested by
the Issuer to acknowledge or effectuate the subordination between
the Holders and the holders of Superior Debt as provided in this
Article 10 and appoints the Trustee as attorney-in-fact for any
and all such purposes.
SECTION 10.16. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF
PROHIBITION. Notwithstanding the provisions of this Article 10
or any other provision of this Indenture, but subject to the
provisions of Sections 7.01 and 7.02, the Trustee and any Paying
Agent shall not be charged with knowledge of the existence of any
Superior Debt, or of any default in the payment of the principal
of, premium, if any, or interest on, any Superior Debt, or of any
facts which would prohibit the making of any payment of money to
or by the Trustee or any such Paying Agent, unless and until the
Trustee or such Paying Agent shall have received at least two
Business Days prior to the date set for payment under the terms
of this Indenture written notice thereof from the Issuer or a
holder of any kind or category of any Superior Debt or the
Representative of such holder; nor shall the Trustee or any such
Paying Agent be charged with knowledge of the curing of any such
default or of the elimination of the fact or condition preventing
any such payment, unless and until the Trustee or such Paying
Agent shall have received an Officers' Certificate to such
effect. Nothing contained in this Section shall limit the rights
of holders of Superior Debt to recover payments pursuant to
Section 10.06. The Trustee shall be entitled to rely
conclusively on any notice received by it pursuant to this
Article 10.
SECTION 10.17. RIGHTS OF TRUSTEE AS HOLDER OF SUPERIOR
DEBT. The Trustee shall be entitled to all the rights set forth
in this Article 10 with respect to any Superior Debt which may at
any time be held by it, to the same extent as any other holder of
Superior Debt; and nothing in Article 7 shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article 10
shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.18. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
SUPERIOR DEBT. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Superior Debt and shall not be
liable to any such holders if it shall mistakenly pay over or
distribute to Holders or the Issuer or any other Person, money or
assets to which any holders of Superior Debt shall be entitled by
virtue of this Article 10 or otherwise. With respect to the
holders of Superior Debt, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are
specifically set forth in this Article 10, and no implied
covenants or obligations with respect to the holders of Superior
Debt shall be read into this Indenture against the Trustee.
Before the Trustee acts or refrains from acting under this
Article 10, it may consult with counsel and may require an
Officers' Certificate or an Opinion of Counsel, and the Trustee
shall not be liable for any action it takes or omits to take in
good faith reliance on such certificate or opinion.
SECTION 10.19. ARTICLE APPLYING TO PAYING AGENTS. In
case at any time any Paying Agent other than the Trustee shall
have been appointed by the Issuer and be then acting hereunder,
the term "Trustee" as used in this Article 10 shall in such case
(unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent
were named in this Article 10 in addition to or in place of the
Trustee.
SECTION 10.20. RELIANCE BY HOLDERS OF SUPERIOR DEBT ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Superior Debt, whether such
Superior Debt was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or
to continue to hold, such Superior Debt and such holder of
Superior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Superior Debt.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02. COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS. Holders of Securities may communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Issuer, the Trustee,
the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 11.03. NOTICES. Any notice or communication
shall be sufficiently given if in writing and delivered in person
or mailed by firstclass mail, postage prepaid, addressed as
follows:
if to the Issuer:
Americold Corporation
7007 S.W. Cardinal Lane, Suite 135
Portland, Oregon 97224
Attention: Joel M. Smith
if to the Trustee:
United States Trust Company of New York
114 West 47th Street, 15th Floor
New York, New York 10036-1532
Attention: Corporate Trust Division
The Issuer or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder of
Securities shall be mailed to such Holder at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder
of Securities or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.04. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Issuer or by any Affiliate of
the Issuer shall be disregarded and deemed not to be Outstanding,
except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned
shall be so disregarded. Also, subject to the foregoing, only
Securities Outstanding at the time shall be considered in any
such determination.
SECTION 11.05. RULES BY TRUSTEE, PAYING AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by
or a meeting of Holders of Securities. The Registrar and the
paying agent may make reasonable rules for their functions.
SECTION 11.06. LEGAL HOLIDAYS. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York or the State of
Oregon. If a Payment Date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period on such
amounts to be paid on such Payment Date; provided that if the
Maturity Date is a Legal Holiday, interest shall accrue for such
intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 11.07. SUCCESSORS. All agreements of the
Issuer in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.08. MULTIPLE ORIGINALS. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 11.09. SEPARABILITY CLAUSE. In case any
provision in this Indenture or in the Securities 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 11.10. GOVERNING LAW. This Indenture and each
of the Securities issued hereunder shall be deemed to be
contracts made under the laws of the State of New York and shall
for all purposes be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required
thereby.
SECTION 11.11. TABLE OF CONTENTS; HEADINGS. The table
of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not being considered a part hereof and shall
in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, AMERICOLD CORPORATION has caused
this Indenture to be signed and acknowledged by its Vice
President, and its corporate seal to be affixed hereunto, and the
same to be attested by its Assistant Secretary; and UNITED STATES
TRUST COMPANY OF NEW YORK has caused this Indenture to be signed
and delivered by one of its Vice Presidents and its corporate
seal to be affixed hereunto, and the same to be attested by one
of its Authorized Persons, all as of the day and year first above
written.
AMERICOLD CORPORATION
By________________________________
Name: Joel M. Smith
Title: Senior Vice President and
Chief Financial Officer
Attest:
_________________________
Name: Lon V. Leneve
Title: Secretary
[Seal]
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By________________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __________ day of _________ 1995, before me
personally came _______________, to me known, and who,
being by me duly sworn, did depose and say that he resides
at ________________________, that he is the
_______________ of AMERICOLD CORPORATION, one of the
corporations described in and which executed the above
instrument; that he knows the corporate seal of said
corporation; that one of the seals affixed to the said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
__________________________
Name:
Commission Expires _______
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _______ day of March 1995, before me
personally came _______________, to me known, and who,
being by me duly sworn, did depose and say that he resides
at __________________________________, that he is the
______________ of UNITED STATES TRUST COMPANY OF NEW YORK,
one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of
said corporation; that one of the seals affixed to the
said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my official seal the day and year in this
certificate first above written.
[NOTARIAL SEAL]
__________________________
Name:
Commission Expires _______
<PAGE>
[FORM OF FACE OF SECURITY]
AMERICOLD CORPORATION
No. R $
15% Senior Subordinated Debenture, Due 2007
AMERICOLD CORPORATION, an Oregon corporation,
promises to pay to , or registered
assigns, the aggregate principal sum of Dollars on
or before May 1, 2007.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth
on the other side of this Security.
Dated:
AMERICOLD CORPORATION,
By
______________________________
Vice President
______________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee, certifies that [SEAL]
this is one of the Securities
referred to in the Indenture.
By
____________________________
Authorized Signatory
Date of Authentication:
<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
AMERICOLD CORPORATION
15% Senior Subordinated Debenture, Due 2007
1. PAYMENT OF INTEREST; DEFAULT RATE; PAYMENT
OF PRINCIPAL.
Americold Corporation (the "Issuer", which term
includes any successor as defined in the Indenture
hereinafter referred to) promises to pay interest on the
outstanding principal amount of this Security (a
"Security") from the date hereof to maturity at a rate of
15% per annum, and to pay, on demand, interest, compounded
monthly, on any overdue principal and (to the extent not
prohibited by applicable law) interest at a rate (the
"Default Rate") equal to the lesser of (a) the greater of
(i) 18% per annum and (ii) 4% per annum over the prime
rate or equivalent rate of interest from time to time in
effect as announced by United States Trust Company of New
York, and (b) the maximum rate of interest on this
Security then permitted by applicable law, in each case
computed on the basis of a 360day year of twelve 30day
months. This Security shall bear interest on the unpaid
principal amount hereof from and after the most recent
Payment Date (as hereinafter defined) to which interest
has been paid or, if no interest has been paid, from and
after the date of original issuance of the Securities.
Such principal and interest (other than any
interest payable at the Default Rate, which is payable on
demand) shall be payable in the manner set forth in
Section 3 below in lawful money of the United States of
America, as follows:
(i) the full amount of all interest accrued on
the outstanding principal amount of this Security
shall be due and payable on May 1 and November 1 of
each year, commencing November 1, 1995; and
(ii) payment of principal shall be due and
payable on May 1, 2007.
The payments described in clause (i) above are herein
called the "Interest Payments" and the dates upon which
such payments and the payment described in clause (ii)
above are due are herein called the "Payment Dates";
provided that, if any Payment Date would otherwise be on a
day which is not a Business Day, then such Payment Date
shall be the next succeeding Business Day. Capitalized
terms used herein without definition shall have the
meanings specified in the Indenture (as hereinafter
defined).
The Interest Payment payable on any Payment
Date will, subject to certain conditions set forth below,
be paid to the Person in whose name this Security (or one
or more predecessor Securities) is registered at the close
of business on the April 15 or October 15 next preceding
such Payment Date, as the case may be; provided that any
Interest Payment not punctually paid or duly provided for
on such Payment Date shall cease to be so payable, but
instead shall be payable to the Person in whose name this
Security is registered at the close of business on such
date as shall be determined by the Issuer in accordance
with the Indenture (as hereinafter defined).
2. INDENTURE.
This Security is a general unsecured obligation
of the Issuer and is one of a duly authorized issue of
securities of the Issuer designated as its 15% Senior
Subordinated Debentures, Due 2007, limited in aggregate
principal amount to $115,000,000, except as provided in
the Indenture (as hereinafter defined), all issued or to
be issued, under and pursuant to the Indenture, dated as
of _____, 1995 (herein, together with all supplements and
amendments thereto, called the "Indenture"). This
Security has been duly executed and delivered by the
Issuer to United States Trust Company of New York (herein,
together with its successors and assigns as trustee under
the Indenture, called the "Trustee"), as Trustee for
authentication. Reference is hereby made to the Indenture
and all indentures supplemental thereto for a description
of the nature and extent of the security, the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of
the Securities and this Security is subject in all
respects to such Indenture.
3. METHOD OF PAYMENT; TAX WITHHOLDING.
(a) Interest Payments on the Securities will
be made in U.S. dollars, at the office of the Trustee,
but, at the option of the Issuer, such payments may be
made by check drawn on a bank in New York City mailed to
the Holder at such Holder's registered address, except as
otherwise provided in the Indenture. Payment of principal
on this Security upon maturity or redemption in whole or
in part, together with accrued interest, will, except as
otherwise provided in the Indenture, be made against
surrender hereof at the office of the paying agent or
copaying agent maintained by the Issuer in New York City,
which initially shall be at the office of the United
States Trust Company of New York, 114 West 47th Street,
15th Floor, New York, New York 10036-1532.
(b) No deduction or withholding from any
payment of interest on this Security for or on account of
any taxes will be made except as required by law.
Applicable United States Federal taxes will be withheld
from payments on this Security for any year in which the
Trustee has not received from any Holder hereof that is
not a United States Person (as defined in the Indenture)
properly executed Form 4224 or Form 1001 (or Form W-8) (or
successor thereto) in accordance with the provisions of
the Indenture, certifying to the effect that such Holder
is not subject to United States Federal withholding tax on
interest payable under this Security.
4. DENOMINATIONS.
Securities are issuable only in fully
registered form without coupons and may be transferred in
minimum denominations of $1,000 and such greater
denominations as are whole multiples of $1,000, only in
the manner and upon payment of the charges provided in the
Indenture. The Trustee will authenticate and deliver
Securities for issue in an aggregate principal amount not
to exceed $115,000,000 upon a written order of the Issuer.
5. DEFAULTS AND REMEDIES.
If an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the
principal amount of each Security may become or be
declared to be due and payable. Upon payment by the
Issuer of such principal amount, and all accrued interest,
the obligations of the Issuer with respect to the payment
of principal of, and interest on this Security shall
terminate.
The Indenture provides that a declaration that
the Securities are due and payable upon the occurrence of
certain Events of Default and the consequences of such
declaration may be annulled by the Holders of a majority
in aggregate principal amount of the Securities then
Outstanding, considered as a single class. It is also
provided in the Indenture that under certain circumstances
prior to any such declaration the Holders of a majority in
aggregate principal amount of the Securities at the time
Outstanding may on behalf of the Holders of all the
Securities waive any past Default or Event of Default
under the Indenture and its consequences except a default
in the payment of principal of, or interest on any of the
Securities, or a default in respect of a covenant or
provision of the Indenture which cannot be amended or
modified without the consent of the Holder of each
Security affected.
6. AMENDMENT; SUPPLEMENT; WAIVER.
The Indenture contains provisions permitting
the Issuer and the Trustee, without the consent of the
Holders of Securities, to modify and amend the terms and
conditions of the Indenture and the Securities for certain
purposes including, without limitation, (a) adding to the
covenants of the Issuer for the benefit of the Holders of
Securities, (b) curing any ambiguity or correcting or
supplementing any defective provisions contained therein,
or (c) making such other provisions in regard to matters
or questions arising under the Indenture as shall not
adversely affect the interests of the Holders of the
Securities. The Indenture contains provisions permitting
the Issuer and the Trustee, with the consent of the
Holders of a majority in aggregate principal amount of the
Securities then Outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or any supplemental
indenture or modifying in any manner the rights of the
Holders of Securities under the Indenture; provided that
no such supplemental indenture shall, without the consent
in each case of the Holder of each Security so affected,
(a) extend the fixed maturity of any Securities, or reduce
the principal amount thereof, or change the time at which
or circumstances under which any Security may or shall be
redeemed or repurchased, or reduce the rate of or extend
the time of payment of interest thereon, or make the
principal thereof or interest thereon payable in any coin
or currency other than that hereinbefore provided, or
impair the right to institute suit for the enforcement of
any such payment, make any changes to the subordination
provisions set forth in the Indenture that adversely
affect the rights of any Securityholder, or (b) amend
certain provisions of the Indenture to reduce quorum or
voting requirements, or reduce the aforesaid percentage in
aggregate principal amount of Securities the consent of
the Holders of which is required for any such supplemental
indenture, or reduce the percentage of Securities the
Holders of which are required to make or give certain
directions or to consent to certain waivers or (c) modify
or affect in any manner adverse to the Holders of the
Securities the terms and conditions of the obligations of
the Issuer in respect of the due and punctual payment of
the principal of, and interest on the Securities.
Any such consent or waiver by the Holder of
this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and
any Security which may be issued in substitution or
exchange hereof, irrespective of whether any notation of
such consent or waiver is made upon this Security or such
other Security.
7. REDEMPTION.
The Securities may be redeemed, in whole or in
part, upon notice given pursuant to the Indenture, at a
redemption price equal to 100% of the outstanding
principal amount of the Securities to be redeemed,
together with accrued interest to the date of redemption.
In the case of any redemption of Securities,
the Issuer is required to deliver to the Trustee an
Officers' Certificate of the Issuer stating that the
Issuer is entitled to effect such redemption and setting
forth in reasonable detail a statement of facts showing
that the conditions precedent, if any, to the right of the
Issuer to redeem the Securities have occurred.
8. SUBORDINATION.
The indebtedness evidenced by this Security is,
to the extent provided in the Indenture, subordinate and
subject in right of payment to the prior payment in full
of all Superior Debt and this Security is issued subject
to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions and (b)
authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to
effectuate the subordination so provided.
9. PUT PROVISIONS.
Upon a Change of Control, any Holder of
Securities will have the right to cause the Issuer to
repurchase all or any part of the Securities of such
Holder at a repurchase price equal to 100% of the
principal amount of the Securities to be repurchased plus
accrued interest to the date of repurchase, as provided
in, and subject to, the Indenture.
10. ASSET SALES.
The Indenture provides, under certain circum-
stances, for the payment of principal of the Securities
from certain asset sales.
11. DEFEASANCE.
Subject to certain conditions, the Issuer at
any time may terminate some or all of its obligations
under the Securities and the Indenture if the Issuer
deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on
the Securities to redemption or maturity, as the case may
be.
12. PERSONS DEEMED OWNERS.
The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the Person in
whose name this Security shall be registered upon the
Security Register (as such term is defined in the
Indenture) as the absolute owner of this Security (whether
or not this Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for
the purpose of receiving payment thereof and for all other
purposes, and neither the Issuer nor the Trustee nor any
agent of the Issuer or the Trustee shall, except to the
extent required by applicable law, be affected by any
notice to the contrary. All such payments so made to any
such Person shall be valid and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge all
liability for the money payable hereupon.
13. VALIDITY; AUTHENTICATION.
The Indenture and this Security shall be deemed
to be contracts made under the laws of the State of New
York and shall for all purposes be governed by, and
construed in accordance with, the laws of such State
without giving effect to applicable principles of
conflicts of laws to the extent that the application of
the laws of another jurisdiction would be required
thereby.
This Security shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by
the Trustee under the Indenture.
14. UNCLAIMED MONEY.
If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or
Paying Agent shall pay the money back to the Issuer at its
request. After any such payment, Securityholders entitled
to the money must look only to the Issuer and not to the
Trustee for payment unless an abandoned property law
designates another person.
15. ABBREVIATIONS.
Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as TEN COM
(tenants in common). TEN ENT (tenants by the entireties),
JT TEN (joint tenants with right of survivorship and not
as tenants in common), CUST (custodian), and U/G/M/A
(Uniform Gift to Minors Act).
The Issuer will furnish to any Securityholder
upon written request and without charge a copy of the
Indenture which has in it the text of this Security in
larger type.
16. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures,
the Issuer has caused CUSIP numbers to be printed on the
securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Security
or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers
placed thereon.
<PAGE>
- ---------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form
below:
I or we assign and transfer this Security to
- ---------------------------------------------------------
(Print or type assignee's name, address and zip code)
- ---------------------------------------------------------
(insert assignee's social security or
taxpayer I.D. number)
and irrevocably appoint ---------------------------------
agent to transfer this Security on the books of the
Issuer. The agent may substitute another to act for him.
Date: __________________
Signature:
----------------------------------------------
(Sign exactly as your name appears on the
other side of this Security)
- ---------------------------------------------------------
<PAGE>
AMERICOLD CORPORATION
15% New Subordinated Debentures, Due 2007
CROSSREFERENCE TABLE
Between the Indenture and the Trust Indenture Act of 1939
TIA
Section Indenture Section
- ------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.08; 7.10
(c) Not Applicable
311(a) 7.11
(b) 7.11
(c) Not Applicable
312(a) 4.15
(b) 11.02
(c) 11.02
313(a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 11.03
(d) 7.06
314(a) 4.03; 4.16; 11.03
(b)(1) Not Applicable
(b)(2) 4.19
(c)(1) 4.19
(c)(2) 4.19
(c)(3) Not Applicable
(d) Not Applicable
(e) 4.20
(f) Not Applicable
315(a) 7.01
(b) 7.05; 11.03
(c) 7.01
(d) 7.01
(e) 5.11
316(a) (last sentence) 11.04
(a)(1)(A) 5.05
(a)(1)(B) 5.04
(a)(2) Not Applicable
(b) 5.07
317(a)(1) 5.08
(a)(2) 5.09
(b) 4.13
318(a) 11.01
__________________________
Note: This CrossReference Table shall not, for any
purpose, be deemed to be a part of this Indenture.
<PAGE>
TABLE OF CONTENTS<F1>
Page
ARTICLE ONE Definitions
SECTION 1.01. Definitions
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act
SECTION 1.03. Rules of Construction
ARTICLE TWO Issuance, Description, Execution and
Exchange of Securities
SECTION 2.01. Designation, Amount and Issue of
Securities
SECTION 2.02. Authentication and Delivery of Securities
SECTION 2.03. Form of Securities and Trustee's
Certificate of Authentication Generally
SECTION 2.04. Denomination and Date of Securities;
Payment of Principal and Interest
SECTION 2.05. Execution of Securities
SECTION 2.06. Exchange and Registration of Transfer of
Securities
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Securities
SECTION 2.08. Cancellation of Surrendered Securities
SECTION 2.09. Temporary Securities
SECTION 2.10. Foreign Holder Certification
Section 2.11. CUSIP Numbers
ARTICLE THREE Redemption of Securities
SECTION 3.01. Optional Redemption
Section 3.02. Notice of Redemption
SECTION 3.03. Procedures for Redemption
SECTION 3.04. Selection of Securities To Be Redeemed
SECTION 3.05. When Securities Called for Redemption
Become Due and Payable
ARTICLE FOUR Particular Covenants, Representationsand
Warranties of the Issuer
SECTION 4.01. Validity of Securities
SECTION 4.02. Payment of Principal of, and Interest on
Securities
SECTION 4.03. SEC Reports
SECTION 4.04. Limitation on Restricted Payments
SECTION 4.05. Limitation on Senior Subordinated Debt
SECTION 4.06. Limitation on Debt
SECTION 4.07. Limitation on Subsidiary Debt and
Preferred Stock
- --------------------
<F1> This Table of Contents shall not, for any purpose,
be deemed to be part of the Indenture.<PAGE>
SECTION 4.08. Limitation on Restrictions on
Distributions
from Subsidiaries
SECTION 4.09. Limitation on Sales of Assets and
Subsidiary Stock
SECTION 4.10. Limitation on Transactions with Affiliates
SECTION 4.11. Change of Control
SECTION 4.12. Appointment of Agents
SECTION 4.13. Paying Agents to Hold Funds in Trust
SECTION 4.14. Appointment of Trustee by Issuer
SECTION 4.15. Availability of Information
SECTION 4.16. Books of Account; Inspection by the
Trustee; Notices; Statements as to
Compliance
Section 4.17 Payment of Taxes and Other Claims
SECTION 4.18 Corporate Existence and Rights
SECTION 4.19. Maintenance of Properties
SECTION 4.20. Maintenance of Insurance
SECTION 4.21. Certificate and Opinion as to
Conditions Precedent
SECTION 4.22. Statements Required in Certificate or
Opinion
SECTION 4.23. Further Instruments and Acts
ARTICLE FIVE Events of Default and Remedies
SECTION 5.01. Events of Default
SECTION 5.02. Acceleration
SECTION 5.03. Other Remedies
SECTION 5.04. Waiver of Past Defaults
SECTION 5.05. Control by Majority
SECTION 5.06. Limitation on Suits
SECTION 5.07. Rights of Holders To Receive Payment
SECTION 5.08. Collection Suit by Trustee
SECTION 5.09. Trustee May File Proofs of Claim
SECTION 5.10. Priorities
SECTION 5.11. Undertaking for Costs
SECTION 5.12. Waiver of Stay or Extension Laws
ARTICLE SIX Discharge of Indenture; Defeasance
SECTION 6.01. Discharge of Liability on Securities;
Defeasance
SECTION 6.02. Conditions to Defeasance
SECTION 6.03. Application of Trust Money
SECTION 6.04. Repayment to Issuer
SECTION 6.05. Indemnity for Government Obligations
SECTION 6.06. Reinstatement
ARTICLE SEVEN Concerning the Trustee
SECTION 7.01. Duties of Trustee
SECTION 7.02. Rights of Trustee
SECTION 7.03. Individual Rights of Trustee
SECTION 7.04. Trustee's Disclaimer
SECTION 7.05. Notice of Defaults
SECTION 7.06. Reports by Trustee to Holders
SECTION 7.07. Compensation and Indemnity
SECTION 7.08. Replacement of Trustee
SECTION 7.09. Successor Trustee by Merger
SECTION 7.10. Eligibility; Disqualification
SECTION 7.11. Preferential Collection of Claims Against
Corporation
ARTICLE EIGHT Amendments, Supplements and Waivers
SECTION 8.01. Without Consent of Holders
SECTION 8.02. With Consent of Holders
SECTION 8.03. Compliance with Trust Indenture Act
SECTION 8.04. Revocation and Effect of Consents
SECTION 8.05. Notation on or Exchange of Securities
SECTION 8.06. Trustee To Sign Amendments
SECTION 8.07. Waiver of Compliance by Holders
ARTICLE NINE Successor Company
SECTION 9.01. When Issuer May Merge or Transfer Assets
ARTICLE TEN Subordination
SECTION 10.01. Agreement To Subordinate
SECTION 10.02. Certain Definitions
SECTION 10.03. Liquidation, Dissolution, Bankruptcy
SECTION 10.04. Default on Superior Debt
SECTION 10.05. Acceleration of Payment of Securities
SECTION 10.06. When Distribution Must Be Paid Over
SECTION 10.07. Subrogation
SECTION 10.08. Relative Rights
SECTION 10.09. Subordination May Not Be Impaired by
Issuer
SECTION 10.10. Rights of Trustee and Paying Agent
SECTION 10.11. Distribution or Notice to Representative
SECTION 10.12. Article 10 Not To Prevent Events of
Default
or Limit Right to Accelerate
SECTION 10.13. Trust Moneys Not Subordinated
SECTION 10.14. Trustee Entitled To Rely
SECTION 10.15. Trustee to Effectuate Subordination
SECTION 10.16. Trustee Not Charged with Knowledge
of Prohibition
SECTION 10.17. Rights of Trustee as Holder of Superior
Debt
SECTION 10.18. Trustee Not Fiduciary for Holders of
Superior Debt
SECTION 10.19. Article Applying to Paying Agents
SECTION 10.20. Reliance by Holders of Superior Debt on
Subordination Provisions
ARTICLE ELEVEN Miscellaneous Provisions
SECTION 11.01. Trust Indenture Act Controls
SECTION 11.02. Communication by Holders with Other
Holders
SECTION 11.03. Notices
SECTION 11.04. When Treasury Securities Disregarded
SECTION 11.05. Rules by Trustee, Paying Agent and
Registrar
SECTION 11.06. Legal Holidays
SECTION 11.07. Successors
SECTION 11.08. Multiple Originals
SECTION 11.09. Separability Clause
SECTION 11.10. Governing Law
SECTION 11.11. Table of Contents; Headings
ACKNOWLEDGMENTS
EXHIBIT A - Form of Security
<PAGE>
==========================================================
AMERICOLD CORPORATION,
as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
____________________________
INDENTURE
Dated as of _______, 1995
____________________________
15% Senior Subordinated Debentures, Due 2007
==========================================================
