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EXHIBIT 4.4
DOLE FOOD COMPANY, INC.,
as Issuer,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of March 28, 2003
Supplementing the Trust Indenture Dated as
of July 15, 1993
---------------
Providing, among other things, for
the succession of Wells Fargo Bank, National Association to
J.P. Morgan Trust
Company
as Trustee under such Trust Indenture
and
Amendment to the terms
of 7-7/8% Debentures due July 15, 2013 and
7-1/4% Senior Notes due 2009
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THIS SECOND
SUPPLEMENTAL INDENTURE, dated as of March 28, 2003, between
DOLE FOOD COMPANY, INC., a corporation duly incorporated and
existing under the
laws of the State of Delaware (the "Company"), having its principal
office at
One Dole Drive, Westlake Village, California 91362, and WELLS FARGO
BANK,
NATIONAL ASSOCIATION, a national banking association, having an
office at 707
Wilshire Boulevard, 17th Floor, Los Angeles, California 90017, who
is hereby
appointed successor Trustee to J.P. Morgan Trust Company, National
Association
(formerly known as the Chase Manhattan Bank and Trust Company,
National
Association, and formerly known as Chemical Trust Company of
California, the
"Retiring Trustee") (said Wells Fargo Bank, National Association
being
hereinafter sometimes called the "New Trustee"), as Trustee under
the Indenture,
dated as of July 15, 1993 (the "Original Indenture"), which
Original Indenture
was executed and delivered by the Company to Chemical Trust Company
of
California, as Trustee, to secure the payment of senior debt
securities issued
or to be issued under and in accordance with the provisions of the
Original
Indenture, reference to which Original Indenture is hereby made,
this instrument
(hereinafter called the " Second Supplemental Indenture") being
supplemental
thereto;
Capitalized terms
used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Original Indenture;
RECITALS
WHEREAS, the
Company has heretofore executed and delivered to the
Retiring Trustee the Original Indenture (together with the
Officers' Certificate
under Sections 102, 201, 301 and 303 of the Original Indenture,
dated as of
October 6, 1998 (the "1998 Officers' Certificate"), the Officers'
Certificate
under Section 201, 301 and 303 of the Original Indenture dated as
of August 3,
1993 (the "1993 Officers' Certificate"), the First Supplemental
Indenture, dated
as of April 30, 2002 (the "First Supplemental Indenture") and this
Second
Supplemental Indenture, the "Indenture"), providing for the
issuance by the
Company from time to time of its unsecured debt securities to be
issued in one
or more series (in the Original Indenture and herein called the
"Securities");
WHEREAS, pursuant
to the 1993 Officers' Certificate, the Company issued
$225,000,000 aggregate principal amount of its 6-3/4% Notes due
July 15, 2000
(the "2000 Notes") and $175,000,000 aggregate principal amount of
its 7-7/8%
Debentures due 2013 (the "2013 Notes");
WHEREAS, pursuant
to the 1998 Officers' Certificate, the Company issued
$300,000,000 aggregate principal amount of its 6-3/8% Notes due
2005 (the "2005
Notes");
WHEREAS, pursuant
to the First Supplemental Indenture, the Company
issued $400,000,000 aggregate principal amount of its 7-1/4% Senior
Notes due
2009 (the "2009 Notes");
WHEREAS, as of the
date of this Second Supplemental Indenture, there
are no outstanding 2000 Notes, $300,000,000 aggregate principal
amount of 2005
Notes outstanding, $400,000,000 aggregate principal amount of 2009
Notes
outstanding and $155,000,000 aggregate principal amount of 2013
Notes
outstanding;
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WHEREAS, as
permitted by Section 610 of the Original Indenture, the
Company desires to remove the Retiring Trustee as Trustee under the
Original
Indenture and to appoint the New Trustee as successor Trustee under
the Original
Indenture, subject to the conditions of Article Six of the Original
Indenture,
effective as of the opening of business on March 28, 2003, and said
New Trustee
desires to accept such appointment, effective as of the opening of
business on
March 28, 2003, in each case, pursuant to this Second Supplemental
Indenture;
WHEREAS, pursuant
to that certain Agreement of Removal, Appointment and
Acceptance, dated as of March 28, 2003 (the "Removal Agreement"),
the Company
and the Retiring Trustee agreed to the removal of the Retiring
Trustee as
Trustee under the Original Indenture and the Company and the New
Trustee agreed
to the appointment of the New Trustee as Trustee under the Original
Indenture;
WHEREAS, pursuant
to that certain Indenture, dated as of March 28, 2003
(the "New Senior Notes Indenture"), the Company is issuing
$475,000,000
aggregate principal amount of its 8-7/8% Senior Notes due 2011 (the
"New Senior
Notes");
WHEREAS, in
connection with certain other transactions occurring on the
date of this Second Supplemental Indenture, the Company has agreed
to amend the
terms of the Original Indenture governing the terms of the 2009
Notes and the
2013 Notes (collectively, the "Existing Notes") to add to the
covenants of the
Company under the Original Indenture, to increase the interest
rates payable on
such Existing Notes, to cause certain of its subsidiaries to
guarantee the
Existing Notes on a senior subordinated basis and to add additional
Events of
Default (as defined in the Original Indenture);
WHEREAS, Section
301 of the Original Indenture provides for various
matters with respect to any series of Securities issued under the
Original
Indenture to be established in an indenture supplemental to the
Original
Indenture;
WHEREAS, Section
901 of the Original Indenture provides for the Company
and the Trustee to evidence and provide for the acceptance of
appointment
thereunder by a successor Trustee with respect to the Securities of
one or more
series issued under the Original Indenture;
WHEREAS, Section
901 of the Original Indenture provides that certain
changes may be made to the Original Indenture with respect to any
series of
Securities issued under the Original Indenture without the consent
of the
holders of such Securities, including the addition of additional
covenants of
the Company and the increase of interest rates payable on such
Securities for
the benefit of the holders of any or all series of Securities
issued under the
Original Indenture;
WHEREAS, Section
901 of the Original Indenture provides that certain
changes may be made to the Original Indenture with respect to any
series of
Securities issued under the Original Indenture without the consent
of the
holders of such Securities, including the addition of additional
Events of
Default (as defined in the Original Indenture);
WHEREAS, as
permitted by Section 901 of the Original Indenture, the
Company, in the exercise of the power and authority conferred upon
and reserved
to it under the provisions of the Original Indenture, has duly
determined to
make, execute and deliver to the New Trustee this
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Second Supplemental Indenture to the Original Indenture in order to
add to the
covenants of the Company for the benefit of the holders of the 2009
Notes and
the 2013 Debentures;
WHEREAS, as
permitted by Section 901 of the Original Indenture, the
Company, in the exercise of the power and authority conferred upon
and reserved
to it under the provisions of the Original Indenture, has duly
determined to
make, execute and deliver to the Trustee this Second Supplemental
Indenture to
the Original Indenture in order to increase the interest rate
payable on and
after the date hereof with respect to the 2009 Notes from 7-1/4%
per annum to
8.625% per annum and to increase the interest rate payable on and
after the date
hereof with respect to the 2013 Notes from 7-7/8% per annum to
8.75% per annum;
WHEREAS, as
permitted by Section 901 of the Original Indenture, the
Company, in the exercise of the power and authority conferred upon
and reserved
to it under the provisions of the Original Indenture, has duly
determined to
make, execute and deliver to the Trustee this Second Supplemental
Indenture to
the Original Indenture in order to provide for the guarantee of the
2009 Notes
and the 2013 Debentures by certain of its domestic subsidiaries;
and
WHEREAS, as
permitted by Section 901 of the Original Indenture, the
Company, in the exercise of the power and authority conferred upon
and reserved
to it under the provisions of the Original Indenture, has duly
determined to
make, execute and deliver to the Trustee this Second Supplemental
Indenture to
the Original Indenture in order to add additional Events of Default
for the
Existing Notes; and
WHEREAS, the
execution and delivery by the Company of this Second
Supplemental Indenture have been duly authorized by the Board of
Directors of
the Company by appropriate Board Resolutions.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That the Company,
pursuant to the Removal Agreement and pursuant to
Section 610 of the Original Indenture, and by order of its Board of
Directors,
hereby removes the Retiring Trustee as Trustee under the Original
Indenture (and
will furnish to said Retiring Trustee a manually signed original of
this Second
Supplemental Indenture as an instrument of such removal) effective
as of the
opening of business on March 28, 2003;
That, pursuant to
Section 610 of the Original Indenture, and by order
of its Board of Directors, the Company hereby appoints the New
Trustee as
successor Trustee under the Original Indenture, subject to the
conditions of
Article Six thereof, effective as of the opening of business on
March 28, 2003;
That the
undersigned New Trustee hereby accepts its appointment by the
Company as successor Trustee under the Original Indenture (and,
pursuant to
Section 611 of the Original Indenture, will furnish to said
Retiring Trustee and
the Company a manually signed original of this Second Supplemental
Indenture as
an instrument of such acceptance) effective as of the opening of
business on
March 28, 2003;
That the Company
will proceed with the delivery of the notice of the
aforesaid removal and the notice of the aforesaid appointment, as
required, by
Section 610 and in the manner
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prescribed by Section 106 of the Original Indenture, in
substantially the form
provided in Exhibit A attached hereto.
The Company
further covenants and agrees to and with the New Trustee
and its successors in said trust under the Original Indenture, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
101 Definitions. Each
capitalized term that is used
herein and is defined in the Indenture shall have the meaning
specified in the
Indenture unless such term is otherwise defined herein. The
definitions below
shall only apply for the purposes of the new provisions added to
the Indenture.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary of the Company or at the time it merges
or consolidates with or into the Company or any of its
Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not
incurred by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or
consolidation.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under
common control with, such specified Person. The term "control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative of
the foregoing.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person
pursuant to which such Person shall become a Restricted
Subsidiary of the Company or any Restricted Subsidiary of the
Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition
by the Company or any Restricted Subsidiary of the Company of
the assets of any Person (other than a Restricted Subsidiary
of the Company) which constitutes all or substantially all of
the assets of such Person or comprises any division or line of
business of such Person or any other properties or assets of
such Person other than in the ordinary course of business.
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"Asset
Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases
entered into in the ordinary course of business), assignment
or other transfer for value by the Company or any of its
Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company, a Guarantor
or a Wholly Owned Restricted Subsidiary of the Company of: (1)
any Capital Stock of any Restricted Subsidiary of the Company;
or (2) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the
ordinary course of business; provided, however, that none of
the following shall be considered an Asset Sale: (a) a
transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate
consideration of less than $5.0 million; (b) the sale, lease,
conveyance, disposition or other transfer of all or
substantially all of the assets of the Company as permitted
under Article Eight; (c) the grant of Liens not prohibited by
this Indenture; (d) any Restricted Payment permitted by
Section 1012 or that constitutes a Permitted Investment; (e)
the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or
collection thereof; and (f) disposals or replacements of
obsolete, worn out, uneconomical or surplus property or
equipment.
"Asset Swap" means the execution of a definitive agreement,
subject only to customary closing conditions that the Company
in good faith believes will be satisfied, for a substantially
concurrent purchase and sale, or exchange, of assets (of a
kind used or usable by the Company and its Restricted
Subsidiaries in their business as it exists on the date
thereof, or in businesses that are the same as such business
of the Company and its Restricted Subsidiaries on the date
thereof
or similar or reasonably related thereto) between the
Company or any of its Restricted Subsidiaries and another
Person or group of affiliated Persons; provided, however, that
any amendment to or waiver of any closing condition that
individually or in the aggregate is material to the Asset Swap
shall be deemed to be a new Asset Swap.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors (or similar governing body) of such Person or any
duly authorized committee thereof.
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"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other
than a Saturday, a Sunday
or a day on which banking institutions in the City of New York
or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is not a
Business Day at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day,
and no interest shall accrue for the intervening period.
"Capital Call Agreement" means the Capital Call Agreement to
be dated on or about the Issue Date by and among David H.
Murdock, individually, and as trustee for the David H. Murdock
Living Trust, Holdings and Deutsche Bank AG New York Branch,
as administrative agent.
"Capital Stock" means:
(1) with respect to any Person that
is a corporation, any
and
all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate
stock, including each class of Common Stock and Preferred
Stock of such Person, and all options, warrants or other
rights to purchase or acquire any of the foregoing; and
(2) with respect to any Person that
is not a corporation,
any and all partnership, membership or other equity interests
of such Person, and all options, warrants or other rights to
purchase or acquire any of the foregoing.
"Capitalized Lease Obligation" means, as to any Person, the
obligations
of such Person under a lease that are required to
be classified and accounted for as capital lease obligations
under GAAP and, for purposes of this definition, the amount of
such obligations at any date shall be the capitalized amount
of such obligations at such date, determined in accordance
with GAAP.
"Cash Equivalents" means:
(1) U.S. dollars, pounds sterling,
Euros or, in the case
of any Foreign Restricted Subsidiary, such local currencies
held by it from time to time in the ordinary course of
business;
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(2) securities issued by, or
unconditionally guaranteed
by, the United States Government, the governments of Canada,
Japan, Sweden, Switzerland or the member states of the United
Kingdom or the European Union
or issued by any agency thereof
and backed by the full faith and credit of the United States,
Canada, Japan, Sweden, Switzerland or the member states of the
United Kingdom or the European Union, in each case maturing
within one year from the date of acquisition thereof;
(3) securities issued by any state of
the United States
of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable
from either Standard & Poor's Ratings Group ("S&P") or
Moody's
Investors Service, Inc. ("Moody's");
(4) commercial paper maturing no more
than one year from
the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1
from
Moody's;
(5) certificates of deposit or
bankers' acceptances
maturing within one year from the date of acquisition thereof
issued by any bank organized under the laws of the United
States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the
date of acquisition thereof combined capital and surplus of
not less than $250.0 million or by a commercial bank organized
under the laws of a country recognized by the United States
which has a combined capital and surplus of not less than
$250.0 million (or the foreign currency equivalent thereof);
or money market funds sponsored by a registered broker dealer
or mutual fund distributor;
(6) eurodollar time deposits;
(7) repurchase obligations with a
term of not more than
seven days for underlying securities of the types described in
clause (1) or (2)
above entered into with any bank meeting the
qualifications specified in clause (5) above; and
(8) investments in money market funds
which invest
substantially all their assets in securities of the types
described in clauses (1) through (7) above;
provided that for purposes of the subordination provisions,
the term "Cash Equivalents" shall not include obligations of
the
type referred to in clause (7).
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"Change of Control" means the occurrence of one or more of the
following events:
(1) any sale, lease, exchange or
other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company or Holdings to
any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof (whether or not otherwise in compliance
with the provisions of this Indenture), other than to the
Permitted
Holders;
(2) the approval by the holders of
Capital Stock of the
Company or Holdings, as the case may be, of any plan or
proposal for the liquidation or dissolution of the Company or
Holdings, as the case may be (whether or not otherwise in
compliance with the provisions of this Indenture);
(3) any Person or Group (other than
the Permitted Holders
and any entity formed by the Permitted Holders for the
purpose
of owning Capital Stock of the Company) shall become the
owner, directly or indirectly, beneficially or of record, of
shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Capital
Stock of the Company or Holdings; or
(4) the replacement of a majority of
the Board of
Directors
of the Company or Holdings over a two-year period
from the directors who constituted the Board of Directors of
the Company or Holdings, as the case may be, at the beginning
of such period, and such replacement shall not have been
approved by a vote of either the holders of a majority of the
shares of Common Stock of Holdings (so long as the Permitted
Holders hold a majority of the Common Stock of Holdings) or at
least a majority of the Board of Directors of the Company or
Holdings, as the case may be, then still in office who either
were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of
Directors was previously so approved.
"Commodities Agreements" means commodity agreements, hedging
agreements and other similar agreements or arrangements
designed to protect the Company or any Restricted Subsidiary
of the Company against price fluctuations of commodities
(e.g., fuel) used in their respective businesses.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents
(however designated and whether voting or non-voting) of, such
Person's
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common stock, whether outstanding on the Issue Date or issued
after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means Dole Food Company, Inc., a Delaware
corporation, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Person.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net
Income has been
reduced thereby:
(a) all income taxes of such Person
and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such
period;
(b) Consolidated Interest Expense;
and
(c) Consolidated Non-cash Charges
less any non-cash items
increasing Consolidated Net Income for such period,
all as determined on a consolidated basis for such Person and
its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person
during the four full fiscal quarters (the "Four Quarter
Period") ending prior to the date of the transaction giving
rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available
(the "Transaction Date") to Consolidated Fixed Charges of such
Person for the Four Quarter Period. In addition to and without
limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Fixed Charges" shall
be calculated after giving effect on a pro forma basis for the
period of such calculation to:
(1) the incurrence or repayment of
any Indebtedness of
such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need
to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds
thereof), other than the incurrence or repayment of
Indebtedness
in the ordinary course of business for working
capital purposes pursuant to working capital
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facilities, occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such incurrence or
repayment, as the case may be (and the application of the
proceeds
thereof), occurred on the first day of the Four
Quarter Period; and
(2) any Asset Sales or other
disposition or Asset
Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation
as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness
and also including any Consolidated EBITDA attributable to the
assets which are the subject of the Asset Acquisition or Asset
Sale or other disposition during the Four Quarter Period)
occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on
or prior to the Transaction Date, as if such Asset Sale or
other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter
Period.
For purposes of this definition, whenever pro forma effect is
to be given to an Asset Acquisition and the amount of income
or earnings relating thereto, the pro forma
calculations shall
be determined in good faith by a responsible financial or
accounting Officer of the Company and shall comply with the
requirements of Rule 11-02 of Regulation S-X promulgated by
the Commission, except that such pro forma calculations may
include operating expense reductions for such period resulting
from the acquisition which is being given pro forma effect
that have been realized or for which the steps necessary for
realization have been taken or are reasonably expected to be
taken within six months following any such Asset Acquisition,
including, but not limited to, the execution or termination of
any contracts, the termination of any personnel or the closing
(or approval by the Board of Directors of the Company of any
closing) of any facility,
as applicable, provided that, in
either case, such adjustments are set forth in an Officers'
Certificate signed by the Company's chief financial officer
and another Officer which states (i) the amount of such
adjustment or adjustments, (ii) that such adjustment or
adjustments are based on the reasonable good faith beliefs of
the Officers executing such Officers' Certificate at the time
of such execution and (iii) that any related incurrence of
Indebtedness is permitted pursuant to this Indenture.
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If such Person or any of its Restricted Subsidiaries directly
or indirectly guarantees Indebtedness of a third Person, the
preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise
assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not
the
numerator) of this "Consolidated Fixed Charge Coverage Ratio":
(1) interest on outstanding
Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction
Date; and
(2) notwithstanding clause (1) above,
interest on
Indebtedness determined on a fluctuating basis, to the extent
such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per
annum resulting after giving effect to the operation of such
agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of:
(1) Consolidated Interest Expense
(excluding the
amortization or write-off of deferred financing costs); plus
(2)
the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person and,
to the extent permitted under this Indenture, its Restricted
Subsidiaries (other than dividends paid in Qualified Capital
Stock) paid, accrued or scheduled to be paid or accrued during
such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current
effective consolidated federal, state and local income tax
rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person
for any period, the sum of, without duplication:
(1) the aggregate of the interest
expense of such Person
and its Restricted Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, including
without limitation: (a) any amortization of debt discount and
amortization or write-off of deferred financing costs; (b) the
net costs under
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Interest Swap Obligations; (c) all capitalized interest; and
(d) the interest portion of any deferred payment obligation;
and
(2) the interest component of
Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during
such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such
Person and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (without
duplication):
(1) after-tax gains and losses from
Asset Sales (without
regard to the $5.0 million limitation set forth in the
definition thereof) or abandonments or reserves relating
thereto;
(2) after-tax items classified as
extraordinary or
nonrecurring gains and losses;
(3) the net income of any Person
acquired in a "pooling
of interests" transaction accrued prior to the date it becomes
a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted
Subsidiary of the referent Person;
(4) the net income (but not loss) of
any Restricted
Subsidiary of the referent Person to the extent that the
declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by a
contract, operation of law or otherwise, unless received;
(5) the net income of any Person,
other than a Restricted
Subsidiary of the referent Person, except to the extent of
cash dividends or distributions paid to the referent Person or
to a Restricted Subsidiary of the referent Person by such
Person;
(6) any restoration to income of any
contingency reserve,
except to the extent that provision for such reserve was made
out of Consolidated Net Income accrued at any time following
the Issue Date;
(7) income or loss attributable to
discontinued
operations; and
(8) in the case of a successor to the
referent Person by
consolidation or merger or as a transferee of the referent
Person's
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assets, any
earnings of the successor corporation prior to
such consolidation, merger or transfer of assets.
Notwithstanding the foregoing, "Consolidated Net Income" shall
be calculated without giving effect to:
(i) any premiums, fees or expenses
incurred in connection
with the transactions; and
(ii) the amortization, depreciation or
non-cash charge of
any amounts required or permitted by Statement of Financial
Accounting Standards No. 141, "Business Combinations," and No.
142, "Goodwill and Other Intangible Assets," or any successor
pronouncements of the Financial Accounting Standards Board or
with respect to the impairment of the value of any long-lived
assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a
consolidated basis in accordance with GAAP, less (without
duplication) amounts attributable to Disqualified Capital
Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation,
amortization and other non-cash expenses of such Person and
its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with
GAAP (excluding any such charges constituting an extraordinary
item or loss or any such charge which requires an accrual of
or a reserve for cash charges for any future period).
"Corporate Trust Office of the Trustee" means the principal
office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date
hereto is located at 707 Wilshire Boulevard, 17th Floor, Los
Angeles, California 90017, Attention: Corporate Trust
Department, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or
the principal corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Credit Agreement" means the Credit Agreement entered into on
the
Issue Date, among Holdings, the Company, Solvest Ltd., the
lenders party thereto in their capacities as lenders
thereunder and Deutsche Bank AG New York Branch, as
administrative agent,
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The Bank of Nova Scotia and Bank of America, N.A., as
co-syndication agents, and Fleet National Bank and Societe
Generale, as co-documentation agents, together with the
related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity
of, refinancing, replacing or otherwise restructuring
(including, without limitation, increasing the amount of
available borrowings thereunder or adding Restricted
Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement
or agreements and whether by the same or any other agent,
lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any Restricted
Subsidiary of the Company against fluctuations in currency
values.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both
would be, an Event of Default.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable
at the option of the holder thereof), or upon the happening of
any event (other than an event which would constitute a Change
of Control or an Asset Sale and other than an event of default
as a result of the bankruptcy, insolvency or similar event of
the issuer thereof contained in a security into which such
Capital Stock is convertible or for which it is exchangeable),
matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the
occurrence of a Change of Control or an Asset Sale and other
than an event of default as a result of the bankruptcy,
insolvency or similar event of the issuer thereof contained in
a security into which such Capital Stock is convertible or for
which it is exchangeable), on or prior to
the final maturity
date of the 2009 Notes or the 2013 Notes, as applicable.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws
of the United States, any state thereof or any territory or
possession of the United States.
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<PAGE>
"Equity Offering" means any public or private sale or issuance
of Qualified Capital Stock of Holdings or the Company;
provided that, in the event of an Equity Offering by Holdings,
Holdings contributes to the capital of the Company the portion
of the net cash proceeds of such Equity Offering necessary to
pay the aggregate redemption price (plus accrued interest to
the Redemption Date) of the New Senior Notes to be redeemed
pursuant to Section 3.8 of the New Senior Notes Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Existing Notes" means the
Company's 8.625% Senior Notes due
2009 (the "2009 Notes") and the Company's 8.75% Debentures due
2013 (the "2013 Notes").
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the
Board of Directors of the Company acting reasonably and in
good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"Final Memorandum" shall mean the Company's final offering
memorandum dated March 17, 2003, whereby the Company offered
$475,000,000 aggregate principal amount of its New Senior
Notes.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary other than a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in
effect as of the Issue Date.
"Guarantee" has the meaning set forth in Section 1601.
"Guarantor" means: (1) certain of the Company's Domestic
Restricted Subsidiaries as of the Issue Date; and (2) each
of
the Company's Restricted Subsidiaries that in the future
executes a
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<PAGE>
supplemental indenture in which such Restricted Subsidiary
agrees to be bound by the terms of this Indenture as a
Guarantor; provided that any Person constituting a Guarantor
as described above shall cease to constitute a Guarantor when
its respective Guarantee is released in accordance with the
terms of this Indenture.
"Guarantor Designated Senior Debt" means (1) Indebtedness of a
Guarantor under or in respect of the Credit Agreement and (2)
any other Indebtedness of a Guarantor constituting Guarantor
Senior Debt which, at the time of determination, has an
aggregate principal amount of at least $50.0 million and is
specifically designated in the instrument evidencing such
Guarantor Senior Debt as "Guarantor Designated Senior Debt" by
the Company.
"Guarantor Senior Debt" means, with respect to any Guarantor:
the principal of, premium, if any, and interest (including any
interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Indebtedness of, or
guaranteed by, a Guarantor, whether outstanding on the Issue
Date or thereafter created,
incurred or assumed, unless, in
the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same
is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantee of such
Guarantor. Without limiting the generality of the foregoing,
"Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of
(including guarantees of the foregoing obligations):
(x) all monetary obligations of every
nature of such
Guarantor under, or with respect to, the Credit Agreement,
including, without limitation, obligations to pay principal,
premium and interest, reimbursement obligations under letters
of credit and bank guarantees, fees, expenses and indemnities
(and guarantees thereof);
(y) all Interest Swap Obligations
(and guarantees
thereof); and
(z) all obligations under Currency
Agreements (and
guarantees thereof),
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in each case whether outstanding on the Issue Date or
thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall
not include:
(1) any Indebtedness of such
Guarantor to a Subsidiary of
such Guarantor;
(2)
Indebtedness to, or guaranteed on behalf of, any
director, officer or employee of such Guarantor or any
Subsidiary of such Guarantor (including, without limitation,
amounts owed for compensation);
(3) Indebtedness to trade creditors
and other amounts
incurred in connection with obtaining goods, materials or
services; provided that obligations incurred pursuant to the
Credit
Agreement shall not be excluded pursuant to this clause
(3);
(4) Indebtedness represented by
Disqualified Capital
Stock;
(5) any liability for federal, state,
local or other
taxes owed or owing by such Guarantor;
(6) that portion of any Indebtedness
incurred in
violation of Section 1014 (but, as to any such obligation, no
such violation shall be deemed to exist for purposes of this
clause (6) if the holder(s) of such obligation or their
representative shall have received an officer's certificate
(and/or a representation or warranty) from the Company to the
effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit indebtedness, that the
incurrence of the entire committed amount thereof at the date
on which the initial borrowing thereunder is made would not)
violate such Section);
(7) with respect to any Guarantor,
Indebtedness which,
when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without
recourse to such Guarantor;
(8) Guarantees or the guarantees of
the New Senior Notes;
and
(9)
with respect to any Guarantor, any Indebtedness which
is, by its express terms, subordinated in right of payment to
any other Indebtedness of such Guarantor.
"Holder" means a Person in whose name a Note is registered.
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<PAGE>
"Holdings" means DHM Holding Company, Inc., a Delaware
corporation and the parent of the Company.
"Indebtedness" means with respect to any Person, without
duplication:
(1) all Obligations of such Person
for borrowed money;
(2) all Obligations of such Person
evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations
of such Person;
(4) all Obligations of such Person
issued or assumed as
the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business
that are not overdue by 120 days or more or are being
contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and payables under the
Company's grower loans program in the ordinary course of
business and consistent with past practice);
(5) all Obligations for the
reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit
transaction;
(6) guarantees and other contingent
obligations in
respect of Indebtedness referred to in clauses (1) through (5)
above and clause (8) below;
(7)
all Obligations of any other Person of the type
referred to in clauses (1) through (6) which are secured by
any Lien on any property or asset of such Person, the amount
of such Obligation being deemed to be the lesser of the fair
market value of such property or asset or the amount of the
Obligation so secured;
(8) all Obligations under Currency
Agreements and
Interest Swap Obligations
of such Person; and
(9) all Disqualified Capital Stock
issued by such Person
with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its
maximum fixed repurchase price, but excluding accrued
dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed
repurchase
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<PAGE>
price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant to this Indenture, and
if
such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market
value shall be determined reasonably and in good faith by the
Board of Directors of the issuer of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Financial Advisor" means a firm: (1) which does
not, and whose directors, officers and employees or Affiliates
do not, have a direct or indirect financial interest in the
Company; and (2) which, in the judgment of the Board of
Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person,
whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made
by such other Person calculated by applying a fixed or a
floating rate of interest on the same notional amount and
shall
also include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without
limitation, a guarantee) or capital contribution to (by means
of any transfer of cash or other property to others or any
payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other Person.
"Investment" shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of
the Company or such Restricted Subsidiaries, as the case may
be. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Common Stock of any direct
or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, the
Company no longer owns, directly or indirectly, 50% of the
outstanding Common Stock of such Restricted Subsidiary, the
Company shall be deemed to have made
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<PAGE>
an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.
"Issue Date" means March 28, 2003, the date of original
issuance of the New Senior Notes.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (other than
the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted
Subsidiaries from such Asset Sale net of:
(1) reasonable out-of-pocket expenses
and fees relating
to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions);
(2) taxes paid or payable after
taking into account any
reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements;
(3) repayment of Indebtedness that is
secured by the
property or assets that are the subject of such Asset Sale or
that is required, pursuant to an agreement or instrument
existing on the Issue Date, to be repaid from the proceeds of
such Asset Sale other than pursuant to this Indenture; and
(4) appropriate amounts to be
provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"New Senior Notes" means the $475.0 million aggregate
principal amount of the Company's 8-7/8% Senior Notes due
2011.
"New Senior Notes Indenture" means the Indenture, dated as of
March 28, 2003, by and among the Company, the Guarantors and
the Trustee relating to the New Senior Notes.
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<PAGE>
"Notes" means the Existing Notes and any other Notes, if any,
that
are issued under this Indenture, as amended or
supplemented from time to time.
"Obligations" means all obligations for principal, premium,
interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), penalties,
fees,
indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
officers of the Company, at least one of whom shall be
the
principal executive officer or principal financial officer of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the
requirements of Section 301 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the
Company
or the Trustee.
"Pari Passu Debt" means any Indebtedness of the Company or any
Guarantor that ranks pari passu in right of payment with the
Notes or such Guarantee, as applicable.
"Permitted Holders" means (i) David H. Murdock, his estate,
spouse, heirs, ancestors, lineal descendants, legatees, legal
representatives or the trustee of a bona fide trust of which
one or more of the foregoing are the principal
beneficiaries
or grantors thereof and (ii) any entity controlled, directly
or indirectly, by any Persons referred to in the preceding
clause (i), whether through the ownership of voting
securities, by contract or otherwise.
"Permitted Indebtedness" means, without duplication, each of
the following:
(1) Indebtedness under the New Senior
Notes or the
exchange notes issued in exchange for the New Senior Notes
pursuant to a registration statement in an aggregate principal
amount not to exceed $475.0 million and the Guarantees
thereof;
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<PAGE>
(2) Indebtedness incurred pursuant to
the Credit
Agreement in an aggregate principal amount at any time
outstanding not to exceed $1,125.0 million less the amount of
all repayments of terms loans and permanent commitment
reductions in the revolving credit portion of the Credit
Agreement actually made with Net Cash Proceeds of Asset Sales
applied thereto as required by Section 1015;
(3) other Indebtedness of the Company
and its Restricted
Subsidiaries outstanding on the Issue Date (including any
"put" or similar rights of minority holders of Restricted
Subsidiaries in existence as of the Issue Date) reduced by the
amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions
thereon;
(4) Interest Swap Obligations of the
Company or any
Restricted Subsidiary of the Company covering Indebtedness of
the Company or any of its Restricted Subsidiaries; provided,
however, that such Interest Swap Obligations are entered into
to protect the Company and its Restricted Subsidiaries from
fluctuations in interest rates on their outstanding
Indebtedness to the extent the notional principal amount of
any such Interest Swap Obligation does not, at the time of the
initial incurrence thereof, exceed the principal amount of the
Indebtedness
to which such Interest Swap Obligation relates;
(5) (A) Indebtedness under Currency
Agreements; provided
that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder and (B) Indebtedness under
Commodities Agreements;
(6) Indebtedness of a Restricted
Subsidiary of the
Company to the Company or to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is
held by the Company or a Wholly Owned Restricted Subsidiary of
the Company or the holder of a Lien permitted under this
Indenture, in each case subject to no Lien held by a Person
other than the Company or a Wholly Owned Restricted Subsidiary
of the Company or the holder of a Lien permitted under this
Indenture; provided that if as of any date any Person other
than the Company or a Wholly Owned Restricted Subsidiary of
the Company or the holder of a Lien permitted under this
Indenture owns or holds any such Indebtedness or holds a Lien
in respect of such Indebtedness, such
23
<PAGE>
date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness under this clause
(6) by
the issuer of such Indebtedness;
(7) (A) Indebtedness of the Company
to a Wholly Owned
Restricted Subsidiary of the Company for so long as such
Indebtedness is held by a Wholly Owned Restricted Subsidiary
of the Company or the holder of a Lien permitted under this
Indenture, in each case subject to no Lien other than a Lien
permitted
under this Indenture; provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted
Subsidiary of the Company that is not a Guarantor is unsecured
and subordinated, pursuant to a written agreement, to the
Company's obligations under this Indenture and the Notes and
(b) if as of any date any Person other than a Wholly Owned
Restricted Subsidiary of the Company or the holder of a Lien
permitted under this Indenture owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not
constituting
Permitted Indebtedness under this clause (7) by
the Company and (B) Indebtedness of the Company or any of its
Restricted Subsidiaries to Saba Trading AB or any other
Restricted Subsidiary of the Company that is not a Wholly
Owned Restricted Subsidiary of the Company in the ordinary
course of business consistent with past practice;
(8) Indebtedness arising from the
honoring by a bank or
other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary
course of business;
provided, however, that such Indebtedness
is extinguished within five business days of incurrence;
(9) Indebtedness of the Company or
any of its Restricted
Subsidiaries in respect of performance bonds, bankers'
acceptances, workers' compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance
or similar obligations, completion or performance guarantees
or standby letters of credit issued for the purpose of
supporting such obligations and bank overdrafts (and letters
of credit in respect thereof) in the ordinary course of
business;
(10) Indebtedness represented by
Capitalized Lease
Obligations, mortgage financings and Purchase Money
Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of
business not to exceed
$25.0 million at any one time outstanding;
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<PAGE>
(11) Refinancing Indebtedness;
(12) Indebtedness represented by guarantees
by the Company
or its Restricted Subsidiaries of Indebtedness otherwise
permitted to be incurred under this Indenture;
(13) Indebtedness of the Company or any
Restricted
Subsidiary consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets or
the Capital Stock of Subsidiaries;
(14) guarantees furnished by the Company or
its Restricted
Subsidiaries in the ordinary course of business of
Indebtedness of another Person in an aggregate amount not to
exceed $25.0 million at any one time outstanding;
(15) Indebtedness incurred under commercial
letters of
credit issued for the account of the Company or any of its
Restricted Subsidiaries in the ordinary course of business
(and not for the purpose of, directly or indirectly, incurring
Indebtedness or providing credit support or a similar
arrangement in respect of Indebtedness), provided that any
drawing under any such letter of credit is reimbursed in full
within seven days;
(16) Indebtedness of the Company or any of
its Restricted
Subsidiaries relating to any "earn-out" obligations payable in
connection with any acquisition made by the Company or any
Restricted Subsidiary not prohibited by this Indenture;
(17) Indebtedness of Foreign Restricted
Subsidiaries in an
aggregate principal amount not to exceed $50.0 million at any
one time outstanding;
(18) Indebtedness of Foreign Restricted
Subsidiaries (and
any guarantee thereof by the Company) incurred in connection
with grower loan programs in an aggregate principal amount not
to exceed $50.0 million at any one time outstanding;
(19) without duplication, Indebtedness of
the Company or
any of its Restricted Subsidiaries under letters of credit and
bank guarantees required by governmental laws, orders and
regulations which letters of credit will be backstopped by
letters of credit under the Credit Agreement;
(20) Indebtedness of the Company or any of
its Restricted
Subsidiaries incurred in connection with vehicle inventory
loans in an aggregate principal amount not to exceed $5.0
million at any one time outstanding;
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<PAGE>
(21) Indebtedness of the Company and its
Restricted
Subsidiaries representing Obligations in existence on the
Issue Date that become Indebtedness after the Issue Date as a
result of the implementation of FASB Interpretation No. 46,
"Consolidation of Variable Interest Entities"; and
(22) additional Indebtedness of the Company
and its
Restricted Subsidiaries in an aggregate principal amount not
to exceed $35.0 million at any one time outstanding (which
amount may,
but need not, be incurred in whole or in part
under the Credit Agreement).
For purposes of determining compliance with Section 1014, in
the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness
described in clauses (1) through (22) above or is entitled to
be incurred pursuant to the Consolidated Fixed Charge Coverage
Ratio
provisions of Section 1014 hereof, the Company shall, in
its sole discretion, classify (or from time to time may
reclassify) such item of Indebtedness in any manner that
complies with this definition and such item of Indebtedness
will be treated as having been incurred pursuant to only one
of such categories. Accrual of interest, accretion or
amortization of original issue discount, a change in the
amount of Indebtedness due solely to fluctuations in the
exchange rates of currencies, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the
same
terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same
class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified
Capital Stock for purposes of Section 1014 hereof.
"Permitted Investments" means:
(1) Investments by the Company or any
Restricted
Subsidiary of the Company in any
Person that is or will become
immediately after such Investment a Restricted Subsidiary of
the Company or that will merge or consolidate into the Company
or a Restricted Subsidiary of the Company;
(2) Investments in the Company by any
Restricted
Subsidiary of the Company; provided that any Indebtedness
(other than Indebtedness to Saba Trading AB or any other
Restricted Subsidiary of the Company that is not a Wholly
Owned Restricted Subsidiary of the Company in the ordinary
course of business consistent with past practice) evidencing
such Investment and held by a Restricted Subsidiary that is
not a Guarantor is unsecured and
26
<PAGE>
subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes and this Indenture;
(3) Investments in cash and Cash
Equivalents;
(4) loans to employees, directors and
officers of the
Company and its Restricted Subsidiaries in the ordinary course
of business for bona fide business purposes not in excess of
$5.0 million at any one time outstanding;
(5) Obligations under Currency
Agreements, Interest Swap
Obligations and Commodities
Agreements entered into in the
ordinary course of the Company's or its Restricted
Subsidiaries' businesses and not for speculative purposes and
otherwise in compliance with this Indenture;
(6) additional Investments not to
exceed $50.0 million at
any one time outstanding;
(7) Investments in securities of
trade creditors,
licensors, licensees or customers received pursuant to any
plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers
or in good faith settlement of delinquent obligations of such
trade creditors or customers;
(8) Investments made by the Company
or its Restricted
Subsidiaries as a result of consideration received in
connection with an Asset Sale made in compliance with Section
1015, whether or not such consideration is equal to or greater
than $5.0 million;
(9) Investments represented by
guarantees that are
otherwise permitted under this Indenture;
(10) Investments the payment for which is
Qualified
Capital Stock of the Company;
(11) Investments resulting from the
creation of Liens on
the assets of the Company or any of its Restricted
Subsidiaries in compliance with Section 1008;
(12) Investments by the Company or any
Restricted
Subsidiary in connection with grower loan programs in an
amount not to exceed $75.0 million at any one time
outstanding;
(13) Investments arising as a result of the
exercise of
any "put" or similar rights of minority holders of Restricted
Subsidiaries or
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"call" or similar rights of the Company in existence as of the
Issue Date; and
(14) advances to employees, directors and
officers of the
Company and its Restricted Subsidiaries in the ordinary course
of business for bona fide business purposes.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust
or joint venture, or any entity similar to any of the
foregoing organized under the laws of other countries, or a
governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital
Stock of such Person with respect to dividends or redemptions
or upon liquidation.
"Purchase Date" means, with respect to any Note to be
repurchased, the date fixed for such repurchase by or pursuant
to this Indenture.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal
course of business for the purpose of financing all or any
part of the purchase price, or the cost of installation,
construction or improvement, of property or equipment.
"Purchase Price" means the amount payable for the repurchase
of any Note on a Purchase Date, exclusive of accrued and
unpaid interest thereon to the Purchase Date, unless otherwise
specifically provided.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Redemption Date" means, with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" means the amount payable for the redemption
of any Note on a Redemption Date, exclusive of' accrued and
unpaid interest thereon to the Redemption Date, unless
otherwise specifically provided.
"Refinance" means, in respect of any security or
Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem,
defease or retire, or to issue a security or Indebtedness in
exchange or
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replacement for, such security or Indebtedness in whole or in
part. "Refinanced" and Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of
Indebtedness incurred in accordance with Section 1014 (other
than pursuant to clauses (2), (4), (5), (6), (7), (8), (9),
(10), (12), (13) through (20) and (22) of the definition of
"Permitted Indebtedness"), in each case that does not:
(1) result in an increase in the
aggregate principal
amount
of Indebtedness of such Person as of the date of such
proposed Refinancing above the sum of (i) the aggregate
principal amount of such Indebtedness, plus (ii) the accrued
interest on and the amount of any premium required to be paid
under the terms of the instrument governing such Indebtedness,
plus (iii) the amount of reasonable expenses incurred by the
Company in connection with such Refinancing; or
(2) create Indebtedness with: (a) a
Weighted Average Life
to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced; or (b) a final
maturity earlier than the final maturity of the Indebtedness
being Refinanced;
provided that (x) if such Indebtedness being Refinanced is
Indebtedness solely of the Company (and is not otherwise
guaranteed by a Restricted Subsidiary of the Company), then
such Refinancing Indebtedness shall be Indebtedness solely of
the Company and (y) if such Indebtedness being Refinanced is
subordinate or junior to the Notes or the Guarantees, then
such Refinancing Indebtedness shall be subordinate to the
Notes or the Guarantees, as the case may be, at least to the
same extent and in the same manner as the Indebtedness being
Refinanced.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department
of the Trustee, including any
vice president, assistant vice
president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons
who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the
administration of this Indenture.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Guarantor Designated
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Senior Debt; provided that if, and for so long as, any
Guarantor Designated Senior Debt lacks such a representative,
then the Representative for such Guarantor Designated Senior
Debt shall at all times constitute the holders of a majority
in outstanding principal amount of such Guarantor Designated
Senior Debt.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an
Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the
Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such Person or
to
any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
"Significant Subsidiary", with respect to any Person, means
any Restricted Subsidiary of such Person that satisfies the
criteria for a "significant subsidiary" set forth in Rule
1-02(w) of Regulation S-X under the Exchange Act.
"Subordinated Indebtedness" means Indebtedness of the Company
or any Guarantor that is subordinate or junior in right of
payment to the Notes or the Guarantee of such Guarantor, as
the case may be.
"Subsidiary", with respect to any Person, means:
(1) any corporation, association or
other business entity
of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of
directors, managers or trustees of such corporation,
association or other business entity under ordinary
circumstances shall at the time be owned, directly or
indirectly, by such Person and its Subsidiaries; or
(2) any partnership (a) the sole
general partner or the
managing partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such
Person and its Subsidiaries.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
