ALEXANDER & BALDWIN, INC.
$75,000,000
PRIVATE SHELF AGREEMENT
November 25, 2003
TABLE OF CONTENTS
SECTION
PAGE NO.
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1.
AUTHORIZATION OF ISSUE OF NOTES.........................1
2A.
Intentionally Omitted...................................2
2B. Purchase
and Sale of Notes..............................2
2B(1).
Facility.....................................2
2B(2). Issuance
Period..............................2
2B(3). Request for
Purchase.........................2
2B(4). Rate
Quotes..................................3
2B(5).
Acceptance...................................3
2B(6). Market
Disruption............................3
2B(7). Facility
Closings............................4
2B(8).
Fees.........................................4
2B(8)(i).
Structuring Fee..............4
2B(8)(ii). Issuance
Fee.................5
2B(8)(iii). Delayed Delivery
Fee.........5
2B(8)(iv).
Cancellation Fee.............5
3.
CONDITIONS OF CLOSING...................................6
3A. Certain
Documents.......................................6
3B.
Representations and Warranties; No Default..............7
3C. Purchase
Permitted by Applicable Laws...................7
3D. Payment of
Fees.........................................7
4.
PREPAYMENTS.............................................7
4A. Required
Prepayments of Notes...........................7
4B. Optional
Prepayment with Yield-Maintenance Amount.......7
4C. Notice of
Optional Prepayment...........................8
4D. Application of
Prepayments 8
4E. Retirement
of Notes.....................................8
5.
AFFIRMATIVE COVENANTS...................................8
5A. Financial
Statements....................................9
5B. Inspection
of Property
............................10
5C. Covenant
to Secure Notes Equally.......................10
5D.
Information Required by Rule 144A......................10
5E.
Maintenance of Properties; Insurance...................11
5F.
Environmental and Safety Laws..........................11
6.
NEGATIVE COVENANTS.....................................11
6A. Financial
Covenants....................................11
6A(1). Minimum Net
Worth...........................11
6A(2). Debt to EBITDA
Ratio........................12
6A(3). Interest
Coverage Ratio.....................12
6B. Lien and
Other Restrictions............................12
6B(1). Liens
............................12
6B(2). Loans and
Advances..........................13
6B(3). Merger and Sale
of Assets...................13
6B(4). Priority Debt
............................14
6B(5). Sale or Discount
of Receivables.............14
6B(6).
Sale-Leasebacks.............................15
6B(7). Transactions
with Holders of Partnership
or Other Equity Interests...................15
6B(8). Transfer of
Assets to Subsidiaries..........15
6B(9). Sale of Stock
and Debt of Subsidiaries......15
6C. Restricted
Payments....................................16
7.
EVENTS OF DEFAULT......................................16
7A.
Acceleration...........................................16
7B. Rescission
of Acceleration.............................19
7C. Notice of
Acceleration or Rescission...................19
7D. Other
Remedies.........................................19
8. REPRESENTATIONS, COVENANTS
AND WARRANTIES..............20
8A.
Organization
............................20
8B. Financial
Statements...................................20
8C. Actions
Pending........................................21
8D.
Outstanding Debt.......................................21
8E. Title to
Properties....................................21
8F.
Taxes..................................................21
8G.
Conflicting Agreements and Other Matters...............21
8H. Offering
of the Notes..................................22
8I. Regulation
U, etc......................................22
8J.
ERISA..................................................22
8K.
Governmental Consent...................................23
8L. Utility
Company Status.................................23
8M. Investment
Company Status..............................23
8N. Bank
Holding Company Status............................23
8O. Real
Property Matters..................................23
8P. Possession
of Franchises, Licenses, etc................23
8Q.
Environmental and Safety Matters.......................24
8R. Hostile
Tender Offers..................................24
8S. Employee
Relations.....................................24
8T.
Regulations and Legislation............................24
8U.
Disclosure.............................................24
9.
REPRESENTATION OF THE PURCHASERS.......................24
9A. Nature of
Purchase.....................................24
9B. Source of
Funds........................................25
10.
DEFINITIONS; ACCOUNTING MATTERS........................26
10A. Yield
Maintenance Terms................................26
10B. Other
Terms............................................28
10C. Accounting
Principles, Terms and Determinations........37
11.
MISCELLANEOUS..........................................38
11A. Note
Payments..........................................38
11B.
Expenses...............................................38
11C. Consent to
Amendments..................................38
11D. Form;
Registration, Transfer and Exchange of Notes;
Transfer Restriction...................................39
11E. Persons Deemed
Owners, Participations..................40
11F. Survival of
Representations and Warranties;
Entire Agreement.......................................40
11G. Successors and
Assigns.................................41
11H. Independence of
Covenants..............................41
11I.
Notices................................................41
11J. Descriptive
Headings...................................41
11K. Satisfaction
Requirement...............................42
11L. Governing
Law..........................................42
11M. Change in
Accounting Principles........................42
11N. Payments Due on
Non-Business Days......................42
11O.
Severability...........................................42
11P. Severalty of
Obligations...............................42
11Q.
Counterparts...........................................42
11R. Binding
Agreement......................................42
Schedules and Exhibits
Information Schedule
Exhibit A
-- Form of
Note
Exhibit B
-- Form of
Request for Purchase
Exhibit C
-- Form of
Confirmation of Acceptance
Exhibit D
-- Form of
Opinion of Companies' Special Counsel
Schedule 5A
--
Independent Auditors' Report
Schedule 6B(1)
-- Liens
Schedule 8G
-- Agreements
Restricting Debt
ALEXANDER & BALDWIN, INC.
822 Bishop Street
Honolulu, Hawaii 96801
As of November 25, 2003
Prudential Investment Management, Inc.
("Prudential")
Each Prudential Affiliate(as
hereinafter
defined) which becomes bound by certain
provisions of this Agreement as
hereinafter
provided (together with Prudential,
the "Purchasers")
c/o Prudential Capital Group
Four Embarcadero Center
Suite 2700
San Francisco, CA 94111
Ladies and Gentlemen:
The undersigned, Alexander & Baldwin, Inc. (the "Company")
hereby
agrees with you as follows:
1. AUTHORIZATION OF ISSUE OF NOTES. The Company has authorized
the
issue of its senior promissory notes in the
aggregate principal amount of
$75,000,000, to be dated the date of issue
thereof, to mature, in the case of
each Note so issued, no more than twenty
years from the date of original
issuance, to have an average life, in the
case of each Note so issued, of no
more than fifteen years, to bear interest
on the unpaid balance thereof from the
date thereof at the rate per annum, and to
have such other particular terms, as
shall be set forth, in the case of each
Note so issued, in the Confirmation of
Acceptance with respect to such Note
delivered pursuant to paragraph 2B(5), and
to be substantially in the form of Exhibit
A attached hereto. The terms "Note"
---------
and "Notes" as used herein shall include
each Note delivered pursuant to any
provision of this Agreement and each Note
delivered in substitution or exchange
for any such Note pursuant to any such
provision. Notes which have (i) the same
final maturity, (ii) the same principal
prepayment dates, (iii) the same
principal prepayment amounts (as a
percentage of the original principal amount
of each Note), (iv) the same interest rate,
(v) the same interest payment
periods and (vi) the same date of issuance
(which, in the case of a Note issued
in exchange for another Note, shall be
deemed for these purposes the date on
which such Note's ultimate predecessor Note
was issued), are herein called a
"Series" of Notes.
2A. Intentionally Omitted.
2B. PURCHASE AND SALE OF NOTES.
2B(1). Facility. Prudential is willing to consider, in its sole
discretion and within limits which may be
authorized for purchase by Prudential
and Prudential Affiliates from time to
time, the purchase of Notes pursuant to
this Agreement. The willingness of
Prudential to consider such purchase of Notes
is herein called the "Facility". At any
time, the aggregate principal amount of
Notes stated in paragraph 1, minus the
aggregate principal amount of Notes
-----
purchased and sold pursuant to this
Agreement prior to such time, minus the
-----
aggregate principal amount of Accepted
Notes (as hereinafter defined) which have
not yet been purchased and sold hereunder
prior to such time, is herein called
the "Available Facility Amount" at such
time. NOTWITHSTANDING THE WILLINGNESS OF
PRUDENTIAL TO CONSIDER PURCHASES OF NOTES,
THIS AGREEMENT IS ENTERED INTO ON THE
EXPRESS UNDERSTANDING THAT NEITHER
PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL
BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO
PURCHASE NOTES, OR TO QUOTE RATES,
SPREADS OR OTHER TERMS WITH RESPECT TO
SPECIFIC PURCHASES OF NOTES, AND THE
FACILITY SHALL IN NO WAY BE CONSTRUED AS A
COMMITMENT BY PRUDENTIAL OR ANY
PRUDENTIAL AFFILIATE.
2B(2). Issuance Period. Notes may be issued and sold pursuant to
this
Agreement until the earlier of (i) the
third anniversary of the date of this
Agreement (or if such anniversary is not a
Business Day, the Business Day next
preceding such anniversary) and (ii) the
thirtieth day after Prudential shall
have given to a Company, or a Company shall
have given to Prudential, a written
notice stating that it elects to terminate
the issuance and sale of Notes
pursuant to this Agreement (or if such
thirtieth day is not a Business Day, the
Business Day next preceding such thirtieth
day). The period during which Notes
may be issued and sold pursuant to this
Agreement is herein called the "Issuance
Period".
2B(3). Request for Purchase. The Company may from time to time
during
the Issuance Period make requests for
purchases of Notes (each such request
being herein called a "Request for
Purchase"). Each Request for Purchase shall
be made to Prudential by telefacsimile or
overnight delivery service, and shall
(i) specify the aggregate principal amount
of Notes covered thereby, which shall
not be less than $5,000,000 and not be
greater than the Available Facility
Amount at the time such Request for
Purchase is made, (ii) specify the principal
amounts, final maturities, principal
prepayment dates and amounts and interest
payment periods (quarterly or semiannual in
arrears) of the Notes covered
thereby, (iii) specify the use of proceeds
of such Notes, (iv) specify the
proposed day for the closing of the
purchase and sale of such Notes, which shall
be a Business Day during the Issuance
Period not less than 5 Business Days and
not more than 30 Business Days after the
making of such Request for Purchase,
(v) specify the number of the account and
the name and address of the depository
institution to which the purchase price of
such Notes is to be transferred on
the Closing Day for such purchase and sale,
(vi) certify that the
representations and warranties contained in
paragraph 8 are true on and as of
the date of such Request for Purchase and
that there exists on the date of such
Request for Purchase no Event of Default or
Default, (vii) specify the
Designated Spread for such Notes and (viii)
be substantially in the form of
Exhibit B attached hereto. Each Request for
Purchase shall be in writing and
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shall be deemed made when received by
Prudential.
2B(4). Rate Quotes. Not later than five Business Days after the
Company
shall have given Prudential a Request for
Purchase pursuant to paragraph 2B(3),
Prudential may, but shall be under no
obligation to, provide to the Company by
telephone or telefacsimile, in each case
between 9:30 A.M. and 2:00 P.M. New
York City local time (or such later time as
Prudential may elect) interest rate
quotes for the several principal amounts,
maturities, principal prepayment
schedules, and interest payment periods of
Notes specified in such Request for
Purchase. Each quote shall represent the
interest rate per annum payable on the
outstanding principal balance of such Notes
at which Prudential or a Prudential
Affiliate would be willing to purchase such
Notes at 100% of the principal
amount thereof.
2B(5). Acceptance. Within five minutes after Prudential shall
have
provided any interest rate quotes pursuant
to paragraph 2B(4), or such shorter
period as Prudential may specify to the
Company (such period herein called the
"Acceptance Window"), the Company may,
subject to paragraph 2B(6), elect to
accept such interest rate quotes as to not
less than $5,000,000 aggregate
principal amount of the Notes specified in
the related Request for Purchase.
Such election shall be made by an
Authorized Officer of the Company notifying
Prudential by telephone or telefacsimile
within the Acceptance Window that the
Company elects to accept such interest rate
quotes, specifying the Notes (each
such Note being herein called an "Accepted
Note") as to which such acceptance
(herein called an "Acceptance") relates.
The day the Company notifies an
Acceptance with respect to any Accepted
Notes is herein called the "Acceptance
Day" for such Accepted Notes. Any interest
rate quotes as to which Prudential
does not receive an Acceptance within the
Acceptance Window shall expire, and no
purchase or sale of Notes hereunder shall
be made based on such expired interest
rate quotes. Subject to paragraph 2B(6) and
the other terms and conditions
hereof, the Company agrees to sell to
Prudential or a Prudential Affiliate, and
Prudential agrees to purchase, or to cause
the purchase by a Prudential
Affiliate of, the Accepted Notes at 100% of
the principal amount of such Notes.
As soon as practicable following the
Acceptance Day, the Company, Prudential and
each Prudential Affiliate which is to
purchase any such Accepted Notes will
execute a confirmation of such Acceptance
substantially in the form of Exhibit C
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attached hereto (herein called a
"Confirmation of Acceptance"). If the Company
should fail to execute and return to
Prudential within three Business Days
following receipt thereof a Confirmation of
Acceptance with respect to any
Accepted Notes, Prudential may at its
election at any time prior to its receipt
thereof cancel the closing with respect to
such Accepted Notes by so notifying
the Company in writing.
2B(6). Market Disruption. Notwithstanding the provisions of
paragraph
2B(5), if Prudential shall have provided
interest rate quotes pursuant to
paragraph 2B(4) and thereafter prior to the
time an Acceptance with respect to
such quotes shall have been notified to
Prudential in accordance with paragraph
2B(5) the domestic market for U.S. Treasury
securities or derivatives shall have
closed or there shall have occurred a
general suspension, material limitation,
or significant disruption of trading in
securities generally on the New York
Stock Exchange or in the domestic market
for U.S. Treasury securities or
derivatives, then such interest rate quotes
shall expire, and no purchase or
sale of Notes hereunder shall be made based
on such expired interest rate
quotes. If the Company thereafter notifies
Prudential of the Acceptance of any
such interest rate quotes, such Acceptance
shall be ineffective for all purposes
of this Agreement, and Prudential shall
promptly notify the Company that the
provisions of this paragraph 2B(6) are
applicable with respect to such
Acceptance.
2B(7). Facility Closings. Not later than 1:30 P.M. (New York City
local
time) on the Closing Day for any Accepted
Notes, the Company will deliver to
each Purchaser listed in the Confirmation
of Acceptance relating thereto at the
offices of Prudential Capital Group the
Accepted Notes to be purchased by such
Purchaser in the form of one or more Notes
in authorized denominations as such
Purchaser may request for each Series of
Accepted Notes to be purchased on the
Closing Day, dated the Closing Day and
registered in such Purchaser's name (or
in the name of its nominee), against
payment of the purchase price thereof by
transfer of immediately available funds for
credit to the account specified by
the Company in the Request for Purchase of
such Notes. If the Company fails to
tender to any Purchaser the Accepted Notes
to be purchased by such Purchaser on
the scheduled Closing Day for such Accepted
Notes as provided above in this
paragraph 2B(7), or any of the conditions
specified in paragraph 3 shall not
have been fulfilled by the time required on
such scheduled Closing Day, the
Company shall, prior to 2:30 P.M., New York
City local time, on such scheduled
Closing Day notify Prudential (which
notification shall be deemed received by
each Purchaser) in writing whether (i) such
closing is to be rescheduled (such
rescheduled date to be a Business Day
during the Issuance Period not less than
one Business Day and not more than 10
Business Days after such scheduled Closing
Day (the "Rescheduled Closing Day") and
certify to Prudential (which
certification shall be for the benefit of
each Purchaser) that the Company
reasonably believes that it will be able to
comply with the conditions set forth
in paragraph 3 on such Rescheduled Closing
Day and that the Company will pay the
Delayed Delivery Fee in accordance with
paragraph 2B(8)(iii) or (ii) such
closing is to be canceled. In the event
that the Company shall fail to give such
notice referred to in the preceding
sentence, Prudential (on behalf of each
Purchaser) may at its election, at any time
after 2:30 P.M., New York City local
time, on such scheduled Closing Day, notify
the Company in writing that such
closing is to be canceled. Notwithstanding
anything to the contrary appearing in
this Agreement, the Company may not elect
to reschedule a closing with respect
to any given Accepted Notes on more than
one occasion, unless Prudential shall
have otherwise consented in writing.
2B(8). Fees.
2B(8)(i). Structuring Fee. In consideration for the time, effort
and
expense involved in the preparation,
negotiation and execution of this
Agreement, at the time of the execution and
delivery of this Agreement by the
Company and Prudential, the Company shall
pay to Prudential in immediately
available funds the $37,500 unpaid balance
of a fee (herein called the
"Structuring Fee") in the aggregate amount
of $112,500; provided that if at
least $15,000,000 of Notes are issued
concurrently with the execution and
delivery of this Agreement the Structuring
Fee shall be $75,000.
2B(8)(ii). Issuance Fee. The Company agrees to pay to each
Purchaser in
immediately available funds a fee (herein
called the "Issuance Fee") on each
Closing Day in an amount equal to 0.10% of
the aggregate principal amount of
Notes sold to such Purchaser on such
Closing Day.
2B(8)(iii). Delayed Delivery Fee. If the closing of the purchase
and
sale of any Accepted Note is delayed for
any reason beyond the original Closing
Day for such Accepted Note, the Company
agrees to pay to Prudential (a) on the
Cancellation Date or actual closing date of
such purchase and sale and (b) if
earlier, the next Business Day following 90
days after the Acceptance Day for
such Accepted Note and on each Business Day
following 90 days after the prior
payment hereunder, a fee (herein called the
"Delayed Delivery Fee") calculated
as follows:
(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield,
i.e., the bond equivalent yield per
annum of such Accepted Note, "MMY" means
Money Market Yield, i.e., the yield per
annum on a commercial paper investment of
the highest quality selected by
Prudential on the date Prudential receives
notice of the delay in the closing
for such Accepted Note having a maturity
date or dates the same as, or closest
to, the Rescheduled Closing Day or
Rescheduled Closing Days (a new alternative
investment being selected by Prudential
each time such closing is delayed);
"DTS" means Days to Settlement, i.e., the
number of actual days elapsed from and
including the original Closing Day with
respect to such Accepted Note (in the
case of the first such payment with respect
to such Accepted Note) or from and
including the date of the next preceding
payment (in the case of any subsequent
delayed delivery fee payment with respect
to such Accepted Note) to but
excluding the date of such payment; and
"PA" means Principal Amount, i.e., the
principal amount of the Accepted Note for
which such calculation is being made.
In no case shall the Delayed Delivery Fee
be less than zero. Nothing contained
herein shall obligate any Purchaser to
purchase any Accepted Note on any day
other than the Closing Day for such
Accepted Note, as the same may be
rescheduled from time to time in compliance
with paragraph 2B(7).
2B(8)(iv). Cancellation Fee. If the Company at any time
notifies
Prudential in writing that the Company is
canceling the closing of the purchase
and sale of any Accepted Note, or if
Prudential notifies the Company in writing
under the circumstances set forth in the
last sentence of paragraph 2B(5) or the
penultimate sentence of paragraph 2B(7)
that the closing of the purchase and
sale of such Accepted Note is to be
canceled, or if the closing of the purchase
and sale of such Accepted Note is not
consummated on or prior to the last day of
the Issuance Period (the date of any such
notification, or the last day of the
Issuance Period, as the case may be, being
herein called the "Cancellation
Date"), the Company agrees to pay to
Prudential in immediately available funds
an amount (the "Cancellation Fee")
calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the
quotient (expressed in decimals)
obtained by dividing (a) the excess of the
ask price (as determined by
Prudential) of the Hedge Treasury Note(s)
on the Cancellation Date over the bid
price (as determined by Prudential) of the
Hedge Treasury Notes(s) on the
Acceptance Day for such Accepted Note by
(b) such bid price; and "PA" has the
meaning ascribed to it in paragraph
2B(8)(iii). The foregoing bid and ask prices
shall be as reported by such publicly
available source of such market data as is
then customarily utilized by Prudential.
Each price shall be based on a U.S.
Treasury security having a par value of
$100.00 and shall be rounded to the
second decimal place. In no case shall the
Cancellation Fee be less than zero.
3. CONDITIONS OF CLOSING. On or before the date on which this
Agreement
is executed and delivered the Company shall
(a) pay to Prudential the balance
(if any) of the Structuring Fee referenced
in paragraph 2B(8)(i) and (b) deliver
to Prudential a document in form and
content satisfactory to Prudential pursuant
to which it is acknowledged that no new
notes issuances shall be made under the
Private Shelf Agreement dated as of April
25, 2001. The obligation of any
Purchaser to purchase and pay for any Notes
is subject to the satisfaction, on
or before the Closing Day for such Notes,
of the following conditions:
3A. Certain Documents.
Such Purchaser shall have received the
following, each dated the date of the
applicable Closing Day:
(i) The Note(s) to be purchased by such Purchaser.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company authorizing the execution and delivery of
this
Agreement and the issuance of the Notes, and of all documents
evidencing other necessary corporate action and governmental
approvals,
if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
and one other officer of the Company certifying the names and
true
signatures of the officers of the Company authorized to sign
this
Agreement and the Notes and the other documents to be delivered
hereunder.
(iv) Certified copies of the Certificate of Incorporation and
By-laws of the Company.
(v) A favorable opinion of Cades Schutte A Limited Liability
Law Partnership LLP, special counsel to the Company (or such
other
counsel designated by the Company and acceptable to the
Purchaser(s))
satisfactory to such Purchaser and substantially in the form of
Exhibit
D attached hereto and as to such other matters as such Purchaser
may
reasonably request. The Company hereby directs such counsel to
deliver
such opinion, agrees that the issuance and sale of any Notes
will
constitute a reconfirmation of such direction, and understands
and
agrees that each Purchaser receiving such an opinion will and is
hereby
authorized to rely on such opinion.
(vi) A good standing certificate for the Company from the
secretary of state of Hawaii and, if different, from the
Company's
jurisdiction of incorporation, in each case dated as of a recent
date
and such other evidence of the status of the Company as such
Purchaser
may reasonably request.
(vii) Additional documents or certificates with respect to
legal matters or corporate or other proceedings related to the
transactions contemplated hereby as may be reasonably requested by
such
Purchaser.
3B. Representations and Warranties; No Default. The representations
and
warranties contained in paragraph 8 shall
be true on and as of such Closing Day,
except to the extent of changes caused by
the transactions herein contemplated;
there shall exist on such Closing Day no
Event of Default or Default; and the
Company shall have delivered to such
Purchaser an Officer's Certificate, dated
such Closing Day, to both such effects.
3C. Purchase Permitted by Applicable Laws. The purchase of and
payment
for the Notes to be purchased by such
Purchaser on the terms and conditions
herein provided (including the use of the
proceeds of such Notes by the Company)
shall not violate any applicable law or
governmental regulation (including,
without limitation, Section 5 of the
Securities Act or Regulation T, U or X of
the Board of Governors of the Federal
Reserve System) and shall not subject such
Purchaser to any tax, penalty, liability or
other onerous condition under or
pursuant to any applicable law or
governmental regulation, and such Purchaser
shall have received such certificates or
other evidence as it may request to
establish compliance with this condition.
This paragraph 3C is a closing
condition and shall not be construed as a
tax indemnity.
3D. Payment of Fees. The Company shall have paid to Prudential and
any
other Purchaser any fees due it pursuant to
or in connection with this
Agreement, including the Structuring Fee
due pursuant to paragraph 2B(8)(i), any
Issuance Fee due pursuant to paragraph
2B(8)(ii) and any Delayed Delivery Fee
due pursuant to paragraph 2B(8)(iii).
4. PREPAYMENTS. The Notes shall be subject to required prepayment
as
and to the extent provided in paragraph 4A.
The Notes shall also be subject to
prepayment under the circumstances set
forth in paragraph 4B. Any prepayment
made by the Company pursuant to any other
provision of this paragraph 4 shall
not reduce or otherwise affect their
obligation to make any required prepayment
as specified in paragraph 4A.
4A. Required Prepayments of Notes. Each Series of Notes shall
be
subject to required prepayments, if any,
set forth in the Notes of such Series.
4B. Optional Prepayment With Yield-Maintenance Amount. The Notes
of
each Series shall be subject to prepayment,
in whole at any time or from time to
time in part (in integral multiples of
$100,000 and in a minimum amount of
$1,000,000), at the option of the Company,
at 100% of the principal amount so
prepaid plus interest thereon to the
prepayment date and the Yield-Maintenance
Amount, if any, with respect to each such
Note. Any partial prepayment of a
Series of the Notes pursuant to this
paragraph 4B shall be applied in
satisfaction of required payments of
principal in inverse order of their
scheduled due dates.
4C. Notice of Optional Prepayment. The Company shall give the
holder of
each Note of a Series to be prepaid
pursuant to paragraph 4B irrevocable written
notice of such prepayment not less than 10
Business Days prior to the prepayment
date, specifying such prepayment date, the
aggregate principal amount of the
Notes of such Series to be prepaid on such
date, the principal amount of the
Notes of such Series held by such holder to
be prepaid on that date and that
such prepayment is to be made pursuant to
paragraph 4B. Notice of prepayment
having been given as aforesaid, the
principal amount of the Notes specified in
such notice, together with interest thereon
to the prepayment date and together
with the Yield-Maintenance Amount, if any,
herein provided, shall become due and
payable on such prepayment date. The
Company shall, on or before the day on
which it gives written notice of any
prepayment pursuant to paragraph 4B, give
telephonic notice of the principal amount
of the Notes to be prepaid and the
prepayment date to each Significant Holder
which shall have designated a
recipient for such notices in the purchaser
schedule attached to the applicable
Confirmation of Acceptance or by notice in
writing to the Company.
4D. Application of Prepayments. In the case of each prepayment of
less
than the entire unpaid principal amount of
all outstanding Notes of any Series
pursuant to paragraph 4A or 4B, the amount
to be prepaid shall be applied pro
rata to all outstanding Notes of such
Series (including, for the purpose of this
paragraph 4D only, all Notes prepaid or
otherwise retired or purchased or
otherwise acquired by the Company or any of
its Subsidiaries or Affiliates other
than by prepayment pursuant to paragraph 4A
or 4B) according to the respective
unpaid principal amounts thereof.
4E. Retirement of Notes. The Company shall not, and shall not
permit
any of its Subsidiaries or Affiliates to,
prepay or otherwise retire in whole or
in part prior to their stated final
maturity (other than by prepayment pursuant
to paragraphs 4A or 4B, or upon
acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise
acquire, directly or indirectly, Notes
of any Series held by any holder unless the
Company or such Subsidiary or
Affiliate shall have offered to prepay or
otherwise retire or purchase or
otherwise acquire, as the case may be, the
same proportion of the aggregate
principal amount of Notes of such Series
held by each other holder of Notes of
such Series at the time outstanding upon
the same terms and conditions. Any
Notes so prepaid or otherwise retired or
purchased or otherwise acquired by the
Company or any of its Subsidiaries or
Affiliates shall not be deemed to be
outstanding for any purpose under this
Agreement, except as provided in
paragraph 4D.
5. AFFIRMATIVE COVENANTS. During the Issuance Period and so
long
thereafter as any Note is outstanding and
unpaid, the Company covenants as
follows:
5A. Financial Statements. The Company covenants that it will
deliver
to each holder of the Notes in
duplicate:
(i) as soon as practicable and in any event within the earlier
to occur of 60 days after the end of each quarterly period (other
than
the last quarterly period) in each fiscal year or the date on
which
another creditor of the Company first receives such
information,
consolidated statements of income and cash flows of the Company and
its
Subsidiaries for the period from the beginning of the current
fiscal
year to the end of such quarterly period, and a consolidated
balance
sheet of the Company and its Subsidiaries as at the end of such
quarterly period, setting forth in each case in comparative
form
figures for the corresponding period in the preceding fiscal year,
all
in reasonable detail and certified by an authorized financial
officer
of the Company,
subject only to changes resulting from year-end
adjustments;
(ii) as soon as practicable and in any event within the
earlier to occur of 120 days after the end of each fiscal year or
the
date on which another creditor of the Company first receives
such
information, consolidated statements of income and cash flows of
the
Company and its Subsidiaries for such year and a consolidated
balance
sheet of the Company and its Subsidiaries as at the end of such
year,
setting forth in each case in comparative form corresponding
figures
from the preceding annual audit, all in reasonable detail and
reasonably satisfactory in scope to the Required Holder(s) and
certified by independent public accountants of recognized
standing
whose opinion shall be unqualified and otherwise satisfactory in
scope
and substance to the Required Holder(s), provided that such
opinion
-------- ----
shall be deemed otherwise satisfactory if prepared and rendered
in
accordance with GAAP and generally accepted auditing standards;
(iii) promptly upon transmission thereof, copies of all such
financial, proxy and information statements, notices and other
reports
as are sent to the Company's stockholders and copies of all
registration statements (with such exhibits as any holder
reasonably
requests) and all reports which are filed with the Securities
and
Exchange Commission (or any governmental body or agency succeeding
to
the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other
report submitted to the Company or any of its Subsidiaries by
independent accountants in connection with any material annual,
interim
or special audit made by them of the books of such Company or
such
Subsidiary pursuant to a request by the Company's Board of
Directors;
(v) promptly after the furnishing thereof, copies of any
certificate, statement or report furnished to any other holder of
the
securities of the Company pursuant to the terms of any indenture,
loan,
credit or similar agreement or instrument and not otherwise
required to
be furnished to the holders of the Notes pursuant to any other
clause
of this paragraph 5; and
(vi) with reasonable promptness, such other financial data
(including without limitation the information specified in
paragraph
5E(ii)) as any holder of Notes may reasonably request.
Together with each delivery of financial statements required by
clauses
(i) and (ii) above, the Company will
deliver to each holder of Notes an
Officers' Certificate (a) setting forth the
aggregate amount of Restricted
Payments made during such fiscal period and
computations showing (non)compliance
with the covenants in paragraphs 6A(1),
6A(2), 6A(3), 6B(1)(iv), 6B(2)(iv),
6B(3)(iv), 6B(4) and 6B(6)(ii); and (b)
stating that there exists no Default or
Event of Default, or if any such Default or
Event of Default exists, specifying
the nature and period of existence thereof
and what action the Company proposes
to take with respect thereto.
Together with each delivery of financial statements required by
clause
(ii) above, the Company will deliver to
each holder of Notes a certificate of
such accountants substantially in the form
of Schedule 5A stating whether they
have obtained knowledge of any Event of
Default or Default and, if so,
specifying the nature and period of
existence thereof.
The Company also covenants that forthwith upon a Principal
Officer
obtaining actual knowledge of an Event of
Default or Default, it will deliver to
each holder of Notes an Officers'
Certificate specifying the nature and period
of existence thereof and what action the
Company proposes to take with respect
thereto.
5B. Inspection of Property. The Company covenants that it will
permit
any employees or designated representatives
of Prudential, any Prudential
Affiliate or any other holder of Notes in
an original principal amount in excess
of $5,000,000, at such Person's expense, to
visit and inspect any of the
properties of the Company and its
Subsidiaries, to examine their books and
financial records and to make copies
thereof or extracts therefrom and to
discuss their affairs, finances and
accounts with the Principal Officers and the
Company's independent certified public
accountants, all at such times as the
Company and such Person reasonably agree
and as often as such Person may
reasonably request.
5C. Covenant to Secure Note Equally. The Company covenants that, if
it
or any of its Subsidiaries shall create,
assume or otherwise incur any Lien upon
any of its property or assets, whether now
owned or hereafter acquired, other
than Liens permitted by the provisions of
paragraph 6B(1) (unless prior written
consent to the creation or assumption
thereof shall have been obtained pursuant
to paragraph 11C), it will make or cause to
be made effective provision whereby
the Notes will be secured by such Lien
equally and ratably with any and all
other Debt thereby secured so long as any
such other Debt shall be so secured.
5D. Information Required by Rule 144A. The Company covenants that
it
will, upon the request of the holder of any
Note, provide such holder, and any
qualified institutional buyer designated by
such holder, such financial and
other information as such holder may
reasonably determine to be necessary in
order to permit compliance with the
information requirements of Rule 144A under
the Securities Act in connection with the
resale of Notes, except at such times
as the Company is subject to and in
compliance with the reporting requirements
of section 13 or 15(d) of the Exchange Act.
For the purpose of this paragraph
5D, the term "qualified institutional
buyer" shall have the meaning specified in
Rule 144A under the Securities Act.
5E. Maintenance of Properties; Insurance. The Company covenants
that it
and each Subsidiary will (i) maintain or
cause to be maintained in good repair,
working order and condition all properties
used or useful at that time in its
business and from time to time will make or
cause to be made all appropriate
repairs, renewals and replacements thereof
and (ii) maintain insurance with
reputable and financially sound insurers in
such amounts and against such
liabilities and hazards as is customarily
maintained by other companies
operating similar businesses and together
with each delivery of financial
statements under clause (ii) of paragraph
5A, upon the request of any
Significant Holder of Notes, deliver
certificates of insurance to the foregoing
effect to such Significant Holder.
5F. Environmental and Safety Laws. (i) The Company covenants that
it
will deliver promptly to each Significant
Holder notice of (a) any material
enforcement, cleanup, removal or other
material governmental or regulatory
action instituted or, to the Company's best
knowledge, threatened against the
Company or any Subsidiary pursuant to any
Environmental and Safety Laws, (b) all
material Environmental Liabilities and
Costs against or in respect of the
Property, the Company or any Subsidiary and
(c) the Company's or any
Subsidiary's discovery of any occurrence or
condition on any real property
adjoining or in the vicinity of the
Property that the Company or such Subsidiary
has reason to believe could cause the
Property or any material part thereof to
be subject to any material restrictions on
its ownership, occupancy,
transferability or use under any
Environmental and Safety Laws.
(ii) The Company covenants that it will, and will cause each of
the
Subsidiaries to, keep and maintain the
Property and conduct its and their
operations in compliance in all material
respects with all applicable
Environmental and Safety Laws.
6. NEGATIVE COVENANTS. During the Issuance Period and so long
thereafter as any Note or amount due
hereunder is outstanding and unpaid, the
Company covenants as follows:
6A. Financial Covenants. The Company will not permit:
6A(1). Minimum Net Worth. Consolidated Tangible Net Worth at any
time
to be less than the sum of (a) $530,000,000
plus (b) to the extent positive, 25%
of Consolidated Cumulative Net Income for
each fiscal quarter ended after
December 31, 2000 (such required minimum
net worth not to be reduced by any
consolidated net loss during any such
fiscal quarter).
6A(2). Debt to EBITDA Ratio. The Debt to EBITDA Ratio at any time
to
exceed 300%; or
6A(3). Interest Coverage Ratio. The Interest Coverage Ratio for
any
fiscal quarter (measured at the end of such
fiscal quarter) to be less than
200%.
6B. Lien
and Other Restrictions. The Company will not, and will not
permit any Subsidiary to:
6B(1). Liens. Create, assume or suffer to exist at any time any
Lien on
or with respect to any of its property or
assets, whether now owned or hereafter
acquired (whether or not provision is made
for the equal and ratable securing of
the Notes in accordance with the provisions
of paragraph 5C hereof), except:
(i) Liens
for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings and for
which
adequate reserves have been established;
(ii) Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances
of
credit, or the guarantee, maintenance, extension or renewal of
the
same, and which do not in the aggregate materially detract from
the
value of its property or assets, taken as a whole, or materially
impair
the use thereof in the operation of its business;
(iii)(A) Liens on the vessels owned or to be owned or
chartered, or any shoreside facilities or equipment owned, leased
or to
be owned or leased by Matson or its Subsidiaries and (B) Liens
securing
Debt between Subsidiaries or owing to the Company by a
Subsidiary;
(iv) the giving, simultaneously with or within ninety (90)
days after the acquisition or construction of real property or
tangible
personal property, of any purchase money lien (including
vendor's
rights under purchase contracts under an agreement whereby title
is
retained for the purpose of securing the purchase price thereof)
on
real property or tangible personal property acquired or
constructed
after December 31, 2000 and not theretofore owned by the Company or
any
of its Subsidiaries, or the acquiring after December 31, 2000 of
real
property or personal tangible property not theretofore owned by
the
Company or any of its Subsidiaries subject to any then existing
Lien
(whether or not assumed); provided, however, that notwithstanding
the
-------- -------
foregoing, non-Matson Subsidiaries may grant Liens on real
property
owned on December 31, 2000 or thereafter acquired for development
in
the ordinary course of Property Development Activities so long as
the
aggregate amount of Debt secured by all such Liens does not, at
any
time, exceed the sum of (A) $85,000,000 and (B) $5,000,000 for
each
completed calendar year, commencing with the calendar year
completed
December 31, 2001; and provided further, that in each such case
-------- -------
(including Liens granted pursuant to the foregoing proviso) (x)
such
Lien is limited to such real or tangible personal property, and (y)
the
principal amounts of the Debt secured by each such Lien,
together
(without duplication) with the principal amount of all other
Debt
secured by Liens on such property, shall not exceed 100% of the
cost
(which shall be deemed to include the amount of Debt secured by
Liens,
including existing Liens, on such property) of such property to
the
Company or any of its Subsidiaries;
(v) Liens (other than as specified in clauses (i) - (iv)
above) of the Company and Subsidiaries in existence on April 25,
2001
as set forth in Schedule 6B(1); and
(vi)
subject to compliance with paragraph 6B(4), Liens
securing Debt other than as set forth in the foregoing clauses (i)
-
(v); provided that there shall not exist any Lien of any kind on
the
--------
shares of the Voting Stock of any Subsidiary, unless the Company
and
Subsidiaries continue to own shares of Voting Stock of such
Subsidiary
which are not subject to any Lien and which represent a majority of
the
Voting Stock of such Subsidiary;
6B(2). Loans and Advances. Make or permit to remain outstanding at
any
time any loan or advance to any Person,
except that the Company and its
Subsidiaries may:
(i) subject to paragraph 6B(4), make or permit to remain
outstanding loans and advances to the Company and Subsidiaries;
(ii)make or permit to remain outstanding travel and other like
advances and customary employee benefits in reasonable amounts
to
employees in the ordinary course of business;
(iii) make or permit to remain outstanding third party loans
and advances on standard arm's-length terms, all such loans and
advances not to exceed an aggregate of $50,000,000 at any time
outstanding; and
(iv) make or permit to remain outstanding purchase money loans
to Persons to whom it sells real property in the ordinary course of
its
Property Development Activities, provided that the aggregate amount
of
-------- ----
all such purchase money loans may not exceed at any one time an
amount
equal to 10% of Consolidated Total Assets at the end of the
fiscal
quarter most recently-ended as of any date of determination;
6B(3). Merger and Sale of Assets. Merge with or into or
consolidate
with any other Person or sell, lease,
transfer or otherwise dispose of assets
(other than in the ordinary course of
business), except that:
(i) any Subsidiary may merge with the Company, so long as the
Company is the surviving corporation;
(ii) any Subsidiary may merge with another Subsidiary, or
sell, lease, transfer or otherwise dispose of its assets to
another
Subsidiary or to the Company; provided, however, that no
Subsidiary
-------- -------
(other than Matson and Matson Subsidiaries) may merge into or
sell,
lease, transfer or otherwise dispose of any assets to any
Matson
Subsidiary;
(iii) (A) Property Subs may sell, lease, transfer, exchange or
otherwise dispose of their real property to the extent that such
sales
or other dispositions are made in the ordinary course of their
Property
Development Activities, and (B) the Company may sell, lease,
transfer,
exchange or otherwise dispose of the real property it owned as
of
December 31, 2000 in the ordinary course of business;
(iv) the Company or any Subsidiary may sell, lease, transfer
or otherwise dispose of assets to third parties so long as (A) the
fair
market value thereof on the date sold or otherwise disposed of,
together with the fair market value of all other assets sold or
otherwise disposed of to third parties (1) within the prior 12
months,
does not represent more than 15% of Consolidated Total Assets and
(2)
since the date of this Agreement, does not represent more than 40%
of
Consolidated Total Assets and (B) such assets, together with all
other
assets sold or otherwise disposed of to third parties since the
beginning of the most recently ended fiscal year, did not
contribute
more than 15% of Consolidated Net Income during the Company's
most
recently ended fiscal year; provided that, notwithstanding the
15%
--------
limitation appearing clause (A), above, sales or dispositions in
excess
thereof in a twelve month period may be made if the proceeds of
such
sale or disposition are fully utilized in the acquisition of
Permitted
Assets and/or applied to the repayment of Permitted Debt, in each
case
within 365 days from the date of sale or disposition; and
(v) the Company may merge or consolidate with another
corporation or other Person if (A) it will be the continuing or
surviving entity
and (B) no Default or Event of Default would exist
immediately after giving effect to such merger or
consolidation;
6B(4). Priority Debt. Permit the aggregate amount of Priority Debt
to
exceed the Priority Debt Limit;
6B(5). Sale or Discount of Receivables. Sell with recourse, or
discount
or otherwise sell for less than the face
value thereof, any of its notes or
accounts receivable (other than sales of
accounts receivable the collection of
which is doubtful in accordance with
GAAP);
6B(6). Sale-Leasebacks. Enter into any arrangement with any lender
or
investor or to which such lender or
investor is a party providing for the
leasing by the Company or any Subsidiary of
real or personal property which has
been or is to be sold or transferred by the
Company or such Subsidiary to such
lender or investor or to any Person to whom
funds have been or are to be
advanced by such lender or investor on the
security of such property or rental
obligations of the Company or a Subsidiary;
provided, however, that such
-------- -------
sale-leaseback transactions may be entered
into by:
(i) Matson and Matson Subsidiaries without limitation; and
(ii)
the Company and its non-Matson Subsidiaries so long as
the aggregate sales price of all assets sold or otherwise
transferred
after December 20, 1990 pursuant to such transactions does not
exceed
5% of Consolidated Tangible Net Worth (measured as at the end of
the
fiscal quarter immediately preceding the date of such
sale-leaseback);
6B(7). Transactions with Holders of Partnership or Other Equity
Interests. Directly or indirectly,
purchase, acquire or lease any property from,
or sell, transfer or lease any property to,
or otherwise deal with, in the
ordinary course of business or otherwise
(i) any Affiliate (other than in the
capacity of an employee), or (ii) any
Person owning, beneficially or of record,
directly or indirectly, 5% or more of the
outstanding voting stock of the
Company or any executive officer (as such
term is defined under the Securities
Exchange Act of 1934, as amended) of the
Company (other than in such Person's
capacity as an employee); provided,
however, that such acts and transactions may
-------- -------
be performed or engaged in if they are
entered into upon terms no less favorable
to the Company or such Subsidiary than if
no such relationship described in
clauses (i) or (ii) above existed and such
acts or transactions are otherwise
permitted by this Agreement;
6B(8). Transfer of Assets to Subsidiaries. Transfer (other than in
the
ordinary course of business) any assets to
a Subsidiary for the principal
purpose of improving the credit position of
such Subsidiary in order to enable
it to borrow money;
6B(9). Sale of Stock and Debt of Subsidiaries. Sell or
otherwise
dispose of, or part with control of, any
shares of stock (or similar equity
securities) or Debt or other obligations of
any Subsidiary, or permit any
Subsidiary to issue shares of its stock (or
similar equity securities), to any
Person other than to a Company or another
Subsidiary (except that non-Matson
Subsidiaries may not issue shares of
capital stock to Matson or a Matson
Subsidiary), and except that (i) the
Property Subs may sell or otherwise dispose
or part with control of all shares of stock
(or similar equity securities) of
special purpose Subsidiaries (i.e.,
Subsidiaries established to hold and develop
real property only for specific development
projects) if such sale or
disposition is made in the ordinary course
of their Property Development
Activities and (ii) all shares of stock (or
similar equity securities) and Debt
or other obligations of any Subsidiary at
the time owned by or owed to the
Company and any Subsidiary may be sold as
an entirety to any third party for a
consideration which represents fair value
(as determined in good faith by its
Board of Directors) at the time of such
sale; provided, however, that the
-------- -------
securities or other obligations so sold
shall constitute assets subject to the
limitations and other provisions of
paragraph 6B(3); and provided, further,
-------- -------
that, at the time of such sale, such
Subsidiary shall not own, directly or
indirectly, any shares of stock or Debt or
other obligations of any other
Subsidiary or of the Company (unless all of
the shares of stock and Debt or
other obligations of such other Subsidiary
owned, directly or indirectly, by the
Company and all Subsidiaries are
simultaneously being sold as permitted by this
paragraph 6B(9));
6C. Restricted Payments. The Company covenants that it will not
declare
or pay any dividend or other distribution
on any class of its capital stock or
other equity interests, redeem or
repurchase any such interests or make any
other distribution on account of any such
interests (all of the foregoing being
"Restricted Payments") except that the
Company may make a Restricted Payment in
any amount so long as (i) no Default or
Event of Default shall then exist or
would exist after giving effect to any such
Restricted Payment and (ii) any such
Restricted Payment will not violate any
applicable law or regulation.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall occur and
be
continuing for any reason whatsoever (and
whether such occurrence shall be
voluntary or involuntary or come about or
be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any principal of,
or interest or Yield-Maintenance Amount on, any Note, for more
than
five Business Days after the same shall become due, either by the
terms
thereof or otherwise as herein provided; or
(ii) the Company or any Subsidiary defaults in any payment of
principal of, or premium or interest on, any obligation for
money
borrowed (or of any obligation under conditional sale or other
title
retention agreement or of any obligation issued or assumed as full
or
partial payment for property whether or not secured by a purchase
money
mortgage or of any obligation under notes payable or drafts
accepted
representing extensions of credit) other than the Notes beyond
any
period of grace provided with respect thereto, or the Company or
any
Subsidiary fails to perform or observe any other agreement, term
or
condition contained in any agreement (or any other event thereunder
or
under any such agreement occurs and is continuing) and the effect
of
such default, failure or other event is to cause, or permit the
holder
or holders of such obligation (or a trustee on behalf of such
holder or
holders) to cause, such obligation to become due (or to be
repurchased
by the Company or any Subsidiary) prior to any stated maturity;
provided that the aggregate amount of all obligations as to which
such
a payment default shall occur or such a failure or other event
causing
or permitting acceleration (or resale to a Company or any
Subsidiary)
shall occur and be continuing exceeds $10,000,000; or
(iii) any representation or warranty made by the Company
herein or by the Company or any of its officers in any writing
furnished in connection with or pursuant to this Agreement shall
be
false or misleading in any material respect on the date as of
which
made; or
(iv) the Company fails to perform or observe any agreement
contained in paragraphs 5C or 6 hereof; or
(v) the Company or any Subsidiary fails to perform or observe
any other agreement, term or condition contained herein and
such
failure shall not be remedied within 30 days after any
Principal
Officer obtains actual knowledge thereof; or
(vi) the Company or any Significant Subsidiary makes an
assignment for the benefit of creditors or is generally not paying
its
debts as such debts become due; or
(vii) any decree or order for relief in respect of the Company
or any Significant Subsidiary is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment
of
debt, dissolution, liquidation or similar law, whether now or
hereafter
in effect (herein called the "Bankruptcy Law"), of any
jurisdiction; or
(viii) the Company or any Significant Subsidiary petitions or
applies to any tribunal for, or consents to, the appointment of,
or
taking possession by, a trustee, receiver, custodian, liquidator
or
similar official of the Company or any such Significant Subsidiary,
or
of any substantial part of the assets of the Company or any
such
Significant Subsidiary, or commences a voluntary case under the
Bankruptcy Law of the United States or any proceedings (other
than
proceedings for the voluntary liquidation and dissolution of a
Significant Subsidiary) relating to the Company or any
Significant
Subsidiary under the Bankruptcy Law of any other jurisdiction;
or
(ix) any petition or application of the type described in
clause (viii) of this paragraph 7A is filed, or any such
proceedings
are commenced, against the Company or any Significant Subsidiary
and
the Company or such Significant Subsidiary by any act indicates
its
approval thereof, consent thereto or acquiescence therein, or an
order,
judgment or decree is entered appointing any such trustee,
receiver,
custodian, liquidator or similar official, or approving the
petition in
any such proceedings, and such order, judgment or decree
remains
unstayed and in effect for more than 30 days; or
(x) any order, judgment or decree is entered in any
proceedings against the Company or any Significant Subsidiary
decreeing
the dissolution of such Company or such Significant Subsidiary and
such
order, judgment or decree remains unstayed and in effect for more
than
30 days; or
(xi) any order, judgment or decree is entered in any
proceedings against the Company or any Significant Subsidiary
decreeing
a split-up of the Company or such Significant Subsidiary which
requires
the divestiture of (A) assets representing a substantial part, or
the
stock of, or other ownership interest in, a Significant
Subsidiary
whose
assets represent a substantial part of Consolidated Total
Assets
or (B) assets or the stock of or other ownership interest in a
Significant Subsidiary that has contributed a substantial part
of
Consolidated Cumulative Net Income for any of the three fiscal
years
then most recently ended, and such order, judgment or decree
remains
unstayed and in effect for more than 30 days; or
(xii) (a) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or
a
waiver of such standards or extension of any amortization period
is
sought or granted under section 412 of the Code, (b) a notice of
intent
to terminate any Plan shall have been or is reasonably expected to
be
filed with the PBCG or the PBGC shall have instituted proceedings
under
ERISA section 4042 to terminate or appoint a trustee to administer
any
Plan or the PBGC shall have notified the Company or any ERISA
Affiliate
that a Plan may become a subject of such proceedings, (c) the
aggregate
"amount of unfunded benefit liabilities" (within the meaning of
section
4001(a)(18) of ERISA) under all Plans, determined in accordance
with
Title IV of ERISA, shall exceed $15,000,000, (d) the Company or
any
ERISA Affiliate shall have incurred or is reasonably expected to
incur
any liability pursuant to Title I or IV or ERISA or the penalty
or
excise tax provisions of the Code relating to employee benefit
plans,
(e) the Company or any ERISA Affiliate withdraws from any
Multiemployer
Plan, or (f) the Company or any Subsidiary establishes or amends
any
employee welfare
benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the
Company
or any Subsidiary thereunder; and any such event or events
described in
clauses (a) through (f) above, either individually or together with
any
other such event or events, could reasonably be expected to have
a
material adverse effect on the business or condition (financial
or
otherwise) of the Company; or
(xiii) any judgment or decree in the amount of $10,000,000 or
more shall be entered against the Company or any of its
Subsidiaries
that is not paid or fully covered (beyond any applicable
deductibles)
by insurance and such judgment or decree shall not have been
vacated,
discharged or stayed or bonded pending appeal within 60 days from
the
entry thereof;
then (a) if such event is an Event of
Default specified in clause (i) of this
paragraph 7A, the holder of any Note (other
than a Company or any of its
Subsidiaries or Affiliates) may at its
option, by notice in writing to the
Company, declare such Note to be, and such
Note shall thereupon be and become,
immediately due and payable at par together
with interest accrued thereon
without presentment, demand, protest or
other notice of any kind, all of which
are hereby waived by the Company, (b) if
such event is an Event of Default
specified in clause (vii), (viii) or (ix)
of this paragraph 7A with respect to
the Company, all of the Notes at the time
outstanding shall automatically become
immediately due and payable together with
interest accrued thereon and the
Yield-Maintenan
