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Indenture
Indenture (424K)
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INDENTURE
DATED AS OF SEPTEMBER 30, 2003
WILMINGTON TRUST COMPANY
Trustee and Collateral Agent
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TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...................... 1
Section 1.01 Definitions.............................................. 1
Section 1.02 Other Definitions........................................ 23
Section 1.03 Trust Indenture Act Provisions........................... 24
Section 1.04 Rules of Construction.................................... 24
ARTICLE 2 THE SENIOR SECURED NOTES........................................ 25
Section 2.01 Form and Dating.......................................... 25
Section 2.02 Execution and Authentication............................. 26
Section 2.03 Registrar and Paying Agent............................... 27
Section 2.04 Paying Agent to Hold Money in Trust...................... 27
Section 2.05 Holder Lists............................................. 27
Section 2.06 Transfer and Exchange.................................... 27
Section 2.07 Replacement Senior Secured Notes......................... 38
Section 2.08 Outstanding Senior Secured Notes......................... 38
Section 2.09 Treasury Notes........................................... 39
Section 2.10 Temporary Senior Secured Notes........................... 39
Section 2.11 Cancellation............................................. 39
Section 2.12 Defaulted Interest....................................... 39
ARTICLE 3 REDEMPTION AND PREPAYMENT....................................... 40
Section 3.01 Notices to Trustee....................................... 40
Section 3.02 Selection of Senior Secured Notes to Be Redeemed......... 40
Section 3.03 Notice of Redemption..................................... 40
Section 3.04 Effect of Notice of Redemption........................... 41
Section 3.05 Deposit of Redemption Price.............................. 41
Section 3.06 Senior Secured Notes Redeemed In Part.................... 41
Section 3.07 Optional Redemption...................................... 42
Section 3.08 Mandatory Redemption..................................... 42
Section 3.09 Repurchase at the Option of Holders Upon a
Change of Control........................................ 43
Section 3.10 Special Mandatory Redemption............................. 43
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ARTICLE 4 COVENANTS ........................................................ 44
Section 4.01 Payment of Senior Secured Notes............................ 44
Section 4.02 Maintenance of Office or Agency............................ 44
Section 4.03 Reports.................................................... 45
Section 4.04 Compliance Certificate..................................... 45
Section 4.05 Stay, Extension and Usury Laws............................. 46
Section 4.06 Restricted Payments........................................ 46
Section 4.07 Incurrence Of Indebtedness/Liens........................... 46
Section 4.08 Limitations On Guarantees.................................. 46
Section 4.09 Prohibitions On Assignments................................ 46
Section 4.10 Books And Records.......................................... 47
Section 4.11 Prohibitions On Fundamental Changes........................ 47
Section 4.12 Corporate Existence........................................ 47
Section 4.13 Compliance With Laws....................................... 47
Section 4.14 Sale of Assets............................................. 47
Section 4.15 Insurance.................................................. 48
Section 4.16 Maintenance of EWG Status.................................. 48
Section 4.17 Governmental Approvals; Title.............................. 48
Section 4.18 Revenue Account............................................ 48
Section 4.19 Transactions with Affiliates............................... 48
Section 4.20 Exercise of Rights......................................... 49
Section 4.21 Amendments to Contracts.................................... 49
Section 4.22 Project Documents.......................................... 49
Section 4.23 Taxes...................................................... 49
Section 4.24 Additional Documents; Filings and Recordings............... 50
Section 4.25 Zero Liquid Discharge Facility............................. 50
Section 4.26 Budget and Expenditures.................................... 50
Section 4.27 Payments for Consent....................................... 50
Section 4.28 CDWR Contract Payment Invoices............................. 50
ARTICLE 5 DEFAULTS AND REMEDIES............................................. 51
Section 5.01 Events of Default.......................................... 51
Section 5.02 Enforcement of Remedies.................................... 53
Section 5.03 Enforcement of Remedies by Ambac Assurance................. 55
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Section 5.04 Other Remedies............................................. 55
Section 5.05 Waiver of Past Defaults.................................... 56
Section 5.06 Control by Majority........................................ 56
Section 5.07 Limitation on Suits........................................ 56
Section 5.08 Rights of Holders of Senior Secured Notes to
Receive Payment............................................ 57
Section 5.09 Collection Suit by Trustee................................. 57
Section 5.10 Trustee May File Proofs of Claim........................... 57
Section 5.11 Priorities................................................. 57
Section 5.12 Undertaking for Costs...................................... 58
ARTICLE 6 TRUSTEE .......................................................... 58
Section 6.01 Duties of Trustee.......................................... 58
Section 6.02 Rights of Trustee.......................................... 59
Section 6.03 Individual Rights of Trustee............................... 60
Section 6.04 Trustee's Disclaimer....................................... 60
Section 6.05 Notice of Defaults......................................... 60
Section 6.06 Reports by Trustee to Holders of the Senior Secured Notes.. 61
Section 6.07 Compensation and Indemnity................................. 61
Section 6.08 Replacement of Trustee..................................... 62
Section 6.09 Successor Trustee by Merger, etc........................... 63
Section 6.10 Eligibility; Disqualification.............................. 63
Section 6.11 Preferential Collection of Claims Against Issuer........... 63
Section 6.12 Default Rate of Interest................................... 63
Section 6.13 Receipt of Documents....................................... 63
ARTICLE 7 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................... 64
Section 7.01 Option to Effect Legal Defeasance or Covenant Defeasance... 64
Section 7.02 Legal Defeasance and Discharge............................. 64
Section 7.03 Covenant Defeasance........................................ 64
Section 7.04 Conditions to Legal or Covenant Defeasance................. 65
Section 7.05 Deposited Money to be Held in Trust; Other
Miscellaneous Provisions................................... 66
Section 7.06 Repayment to Issuer........................................ 66
Section 7.07 Reinstatement.............................................. 66
Section 7.08 Payments pursuant to Financial Guaranty Insurance.......... 67
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ARTICLE 8 AMENDMENT, SUPPLEMENT AND WAIVER.................................. 67
Section 8.01 Consent of Ambac Assurance................................. 67
Section 8.02 Without Consent of Holders of Senior Secured Notes......... 67
Section 8.03 With Consent of Holders of Senior Secured Notes............ 68
Section 8.04 Revocation and Effect of Consents.......................... 69
Section 8.05 Notation on or Exchange of Senior Secured Notes............ 69
Section 8.06 Trustee to Sign Amendments, etc............................ 69
Section 8.07 Authorization and Direction to Trustee to Release Certain
Liens and Consent to Certain Modifications of the Project
Documents.................................................. 70
Section 8.08 Conformity with Trust Indenture Act........................ 70
ARTICLE 9 GUARANTEE ........................................................ 70
Section 9.01 Guarantee.................................................. 70
Section 9.02 Limitation on Guarantor Liability.......................... 71
Section 9.03 Execution and Delivery of Guarantee........................ 71
Section 9.04 Guarantors May Not Merge, Consolidate, etc................. 71
ARTICLE 10 SATISFACTION AND DISCHARGE....................................... 72
Section 10.01 Satisfaction and Discharge................................. 72
Section 10.02 Application of Trust Money................................. 73
ARTICLE 11 MISCELLANEOUS.................................................... 73
Section 11.01 Trust Indenture Act Controls............................... 73
Section 11.02 Notices.................................................... 73
Section 11.03 Communication by Holders of Senior Secured Notes with
Other Holders of Senior Secured Notes...................... 76
Section 11.04 Certificate and Opinion as to Conditions Precedent......... 77
Section 11.05 Statements Required in Certificate or Opinion.............. 77
Section 11.06 Rules by Trustee and Agents................................ 77
Section 11.07 No Personal Liability of Directors, Officers,
Employees and Stockholders................................. 77
Section 11.08 Governing Law.............................................. 77
Section 11.09 No Adverse Interpretation of Other Agreements.............. 78
Section 11.10 Successors................................................. 78
Section 11.11 Severability............................................... 78
Section 11.12 Counterpart Originals...................................... 78
Section 11.13 Table of Contents, Headings, etc........................... 78
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ARTICLE 12 FINANCIAL GUARANTY INSURANCE..................................... 78
Section 12.01 Payments Pursuant to Financial Guaranty Insurance.......... 78
Section 12.02 Notices to be sent to Surveillance Department of
Ambac Assurance............................................ 80
Section 12.03 Notices to be sent to General Counsel of Ambac Assurance... 80
Section 12.04 Miscellaneous.............................................. 80
(i) THE SENIOR DEBT SHALL FIRST BE ENTITLED TO RECEIVE PAYMENT
IN FULL IN DOLLARS OF THE PRINCIPAL THEREOF, INTEREST
THEREON, AND ALL OTHER AMOUNTS PAYABLE THEREON OR
THEREUNDER (INCLUDING, WITHOUT LIMITATION, FEES, EXPENSES
AND INDEMNITIES), ACCRUING BEFORE AND AFTER THE
COMMENCEMENT OF THE PROCEEDINGS, BEFORE THE SUBORDINATED
CREDITOR IS ENTITLED TO RECEIVE ANY PAYMENT ON ACCOUNT OF
THE SUBORDINATED DEBT;
AND................................................................... 2
(ii) ANY PAYMENT OR DISTRIBUTION OF ASSETS OF [THE
ISSUER/CREED/GOOSE HAVEN] OF ANY KIND OR CHARACTER, WHETHER
IN CASH, PROPERTY OR SECURITIES TO WHICH THE SUBORDINATED
CREDITOR WOULD BE ENTITLED, BUT FOR THE PROVISIONS OF THIS
AGREEMENT, SHALL BE PAID OR DISTRIBUTED BY THE LIQUIDATING
TRUSTEE OR AGENT OR OTHER PERSON MAKING SUCH PAYMENT OR
DISTRIBUTION, WHETHER A TRUSTEE IN BANKRUPTCY, A RECEIVER
OR LIQUIDATING TRUSTEE OR OTHER TRUSTEE OR AGENT, DIRECTLY
TO THE TRUSTEE IN RESPECT OF THE SENIOR DEBT, TO THE EXTENT
NECESSARY TO MAKE PAYMENT IN FULL OF ALL PRINCIPAL,
INTEREST (ACCRUING BEFORE OR AFTER COMMENCEMENT OF
PROCEEDINGS) AND ALL OTHER AMOUNTS PAYABLE ON THE SENIOR
DEBT, AND ALL FEES, EXPENSES AND INDEMNITIES RELATING
THERETO, REMAINING UNPAID, AFTER GIVING EFFECT TO ANY PRIOR
OR CONCURRENT PAYMENT OR DISTRIBUTION IN RESPECT OF THE
SENIOR DEBT........................................................... 2
EXHIBITS
Exhibit A: FORM OF NOTES DUE AUGUST 15, 2011
Exhibit B: FORM OF CERTIFICATE OF TRANSFER
Exhibit C: FORM OF CERTIFICATE OF EXCHANGE
Exhibit D: FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E: FORM OF GUARANTEE
Exhibit F: FORM OF SUBORDINATION AGREEMENT
v
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INDENTURE dated as of September 30, 2003 among Gilroy Energy Center, LLC,
a Delaware limited liability company ("Issuer"), Creed Energy Center, LLC, a
Delaware limited liability company ("Creed"), Goose Haven Energy Center, LLC, a
Delaware limited liability company ("Goose Haven", together with Creed,
individually, a "Guarantor" and, collectively, the "Guarantors") and Wilmington
Trust Company, a banking corporation (in its capacity as trustee hereunder, the
"Trustee"; and in its capacity as collateral agent hereunder, the "Collateral
Agent").
Issuer, the Guarantors and Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 4.00%
Senior Secured Notes due August 15, 2011 (the "Senior Secured Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a global note in the form of Exhibit A1 hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of the Senior Secured Notes sold in reliance on Rule 144A.
"Acceptable Letter of Credit Issuer" means a financial institution whose
senior long-term unsecured and unenhanced debt is rated at least A by S&P and A2
by Moody's and who maintains an office or corresponding bank in the United
States; provided that if the credit rating of such financial institution's
senior long-term unsecured and unenhanced debt fails at any time to be equal to
the ratings set forth herein, Issuer shall, within 30 days following such
ratings downgrade, cause such financial institution's letter of credit to be
replaced with one or a combination of cash, Permitted Investments and a
Qualifying Letter of Credit.
"Accounts" means the Operating Account and the Depositary Accounts
established under the Depositary Agreement.
"Additional Project Documents" means, with respect to a Project, any
material contracts or agreements related to the construction, testing,
maintenance, repair, operation or use of such Project entered into by, or
assigned to, Issuer or either Guarantor owning or leasing such Project and any
other Person; provided that, unless such contracts and agreements are not
readily replaceable in the ordinary course of business, all such contracts and
agreements providing for the noncontingent payments by Issuer or such Guarantor
of less than $2,500,000 per annum or $5,000,000 in the aggregate among Issuer
and the Guarantors per annum, or the provision to Issuer or such Guarantor of
less than $2,500,000 per annum or $5,000,000 in the aggregate among Issuer and
the Guarantors per annum in value of goods or services, or providing for a
maximum term of less than one year shall be deemed to not constitute an
Additional Project Document.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such first Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
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"Affiliated Party Subordination Agreement" means, for each Affiliate of
Calpine Corporation providing goods or services to a Project, the contract or
agreement entered into by such Affiliate in favor of Collateral Agent for the
subordination of fees as provided therein.
"Agent" means any Registrar, Paying Agent, co-registrar or additional
paying agent.
"Ambac Assurance" shall mean Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance company.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Bankruptcy Event" shall be deemed to occur, with respect to Issuer or
either Guarantor, (1) if Issuer or such Guarantor, pursuant to or within the
meaning of Bankruptcy Law (A) commences a voluntary case, (B) consents to the
entry of an order for relief against it in an involuntary case, (C) consents to
the appointment of a custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due; or (2) if a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against Issuer or either Guarantor; (B) appoints a custodian
of Issuer or either Guarantor or for all or substantially all of the property of
Issuer or either Guarantor; or (C) orders the liquidation of Issuer or either
Guarantor; and the order or decree remains unstayed and in effect for 60
consecutive days.
"Bankruptcy Law" means Title 11, United States Code, and any other state
or federal insolvency, reorganization, moratorium or similar law for the relief
of debtors, or any successor statute.
"Business Day" means any day other than a Legal Holiday.
"Calpine Corporation" means Calpine Corporation, a Delaware corporation.
"Calpine Energy Services" means Calpine Energy Services, L.P., a Delaware
limited partnership.
"Cash Flow Available for Debt Service" means, for any period, (a) all
revenues (including interest and the proceeds of any business interruption
insurance but excluding any other insurance proceeds and other similar
non-recurring receipts), including all Project Revenues received in such period
by Issuer and the Guarantors, less (b) O&M Costs paid in such period.
"Casualty Event" means an event which causes all or a portion of any
Project to be damaged, destroyed or rendered unfit for normal use for any reason
whatsoever, other than a Condemnation Event or a Title Event.
"Casualty Insurance Proceeds" means any and all proceeds of any insurance,
indemnity, warranty or guarantee payable from time to time with respect to any
Casualty Event, other than proceeds of business interruption insurance.
"CCEF" means Calpine California Energy Finance, LLC, a Delaware limited
liability company.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of Issuer or either Guarantor to any "person" or
175400
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ConAgra Foods
As referenced in this Indenture:
ConAgra Foods, – and (ii) that
certain Shared Facilities Agreement, dated as of May 10, 2002, by and among
Calpine Gilroy Cogen, L.P., Issuer and ConAgra Foods, Inc., a Delaware
corporation.
"Gilroy Shared Use Agreement" means that certain Shared Permit Agreement
dated as of May 14, 2002, between Calpine
_____________
dt 148255
;
 BNY
As referenced in this Indenture:
Bank of New York, – Insurance Consultant" means Marsh USA, Inc., or its successors.
9
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"Insurance Trustee" means The Bank of New York, New York, New York or any
successor thereto, under the Financial Guaranty Insurance.
"Insurer
Bank of New York, – been issued by Ambac Assurance Corporation ("Ambac Assurance"). The
Policy has been delivered to The Bank of New York, New York, New York, as the
Insurance Trustee under said Policy and will be
Bank of New York, – been issued by Ambac Assurance Corporation ("Ambac Assurance"). The
Policy has been delivered to The Bank of New York, New York, New York, as the
Insurance Trustee under said Policy and will be
dt 42505
;
Cede
As referenced in this Indenture:
CEDE & CO – OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO . OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (
CEDE & CO – MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO . OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC),
CEDE & CO – OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO ., HAS AN INTEREST HEREIN."
(iii) Original Issue Discount Legend.
(A) Except as set forth
Cede & Co – due August 15, 2011
No.__ $_______________
GILROY ENERGY CENTER, LLC
promises to pay to Cede & Co ., or registered assigns, the principal sum of
________________ Dollars on August 15, 2011 in
CEDE & CO – OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO . OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (
dt 39051
;
|
GSI
As referenced in this Indenture:
Goldman Sachs International – by the Issuer.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Purchaser" means Goldman Sachs International .
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
_____________
dt 108801
;
Goldman, Sachs
As referenced in this Indenture:
Goldman Sachs – who holds a beneficial interest in a
Global Note through a Participant.
"Initial Purchaser" means Goldman Sachs International.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in
Goldman, Sachs – with this Indenture.
"Reference Treasury Dealer" means, for the Senior Secured Notes, each of
(x) Goldman, Sachs & Co., or its successors; provided, however, that if the
foregoing shall not be a
dt 44633
;
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Subordinated Indenture
Subordinated Indenture (808K)
Doc #315708: This document is immediately available for purchase, but does not have a preview available for viewing.
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
Subordinated Indenture
Dated as of March 10, 1994
------------
-----------------------------------------------------------------
CROSS REFERENCE SHEET
Subordinated Indenture
Dated March 10, 1994
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Between
CONAGRA, INC.
and
FIRST TRUST NATIONAL ASSOCIATION
Provisions of Trust Indenture Act of 1939 and
Subordinated Indenture to be dated as of March 10, 1994 between
CONAGRA, INC. and FIRST TRUST NATIONAL ASSOCIATION, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)................ 6.9
310(a)(3) and (4)................ Inapplicable
310(a)(5)........................ 6.9
310(b)........................... 6.8 and 6.10(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13(a) and (c)(l) and (2)
311(b)........................... 6.13(b)
311(c)........................... Inapplicable
312(a)........................... 4.1 and 4.2(a)
312(b)........................... 4.2(a) and (b)(i) and (ii)
312(c)........................... 4.2(c)
313(a)........................... 4.4(a)(i), (ii), (iii), (iv),
(v) and (vi)
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.4
313(c)........................... 4.4
313(d)........................... 4.4
314(a)........................... 4.3
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)........................ 5.9, 5.10
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
*This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
------------
Page
PARTIES.............................................. 1
RECITALS
Authorization of Subordinated Indenture......... 1
Compliance with Legal Requirements.............. 1
Purpose of and Consideration for Indenture...... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined................. 1
Authorized Newspaper.................. 2
Board of Directors.................... 2
Board Resolution...................... 2
Business Day.......................... 2
Commission............................ 2
Composite Rate........................ 2-3
Consolidated Subsidiaries............. 3
Corporate Trust Office................ 3
Coupon................................ 3
Depositary............................ 3
Dollar................................ 3
ECU................................... 3
Event of Default...................... 3
Foreign Currency...................... 3
Holder, Holder of Securities,
Securityholder...................... 4
Indebtedness.......................... 4
Indenture............................. 4
Interest.............................. 4
Issuer................................ 4
Issuer Order.......................... 4
Officers' Certificate................. 4
Opinion of Counsel.................... 5
Original Issue Date................... 5
Original Issue Discount Security...... 5
Outstanding........................... 5-6
Person................................ 6
Principal............................. 6
Registered Global Security............ 6
Registered Security................... 6
Responsible Officer................... 6
Security or Securities................ 6
Senior Indebtedness................... 6-7
Subsidiary............................ 7
Trust Indenture Act of 1939........... 7
Trustee............................... 7
Unregistered Security................. 7
U.S. Government Obligations........... 7
Vice President........................ 7
Yield to Maturity..................... 7
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally....................... 7-8
SECTION 2.2. Form of Trustee's Certificate
of Authentication................... 8
SECTION 2.3. Amount Unlimited; Issuable in Series.. 8-12
SECTION 2.4. Authentication and Delivery of
Securities.......................... 12-14
SECTION 2.5. Execution of Securities............... 14-15
SECTION 2.6. Certificate of Authentication......... 15
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest.... 15-16
SECTION 2.8. Registration, Transfer and Exchange... 16-20
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............... 20-21
SECTION 2.10. Cancellation of Securities;
Destruction Thereof................. 21-22
SECTION 2.11. Temporary Securities.................. 22-23
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest..... 23
SECTION 3.2. Offices for Payments, etc............. 23-24
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................... 24
SECTION 3.4. Paying Agents......................... 25-26
SECTION 3.5. Written Statement to Trustee.......... 26
SECTION 3.6. Luxembourg Publications............... 26
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders..................... 26-27
SECTION 4.2. Preservation and Disclosure of
Securityholders Lists............... 27-28
SECTION 4.3. Reports by the Issuer................. 28
SECTION 4.4. Reports by the Trustee................ 29-31
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default...... 32-34
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.............. 35-37
SECTION 5.3. Application of Proceeds............... 37-38
SECTION 5.4. Suits for Enforcement................. 38
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings...................... 38-39
SECTION 5.6. Limitations on Suits by
Securityholders..................... 39
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits....................... 39
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................. 40
SECTION 5.9. Control by Holders of Securities...... 40-41
SECTION 5.10. Waiver of Past Defaults............... 41
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances....................... 41-42
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs......... 42
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default............................. 42-44
SECTION 6.2. Certain Rights of the Trustee......... 44-45
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..... 45
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc.................... 45
SECTION 6.5. Moneys Held by Trustee................ 45
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim...... 45-46
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc.......... 46
SECTION 6.8. Qualification of Trustee;
Conflicting Interests............... 47-54
SECTION 6.9. Persons Eligible for Appointment
as Trustee.......................... 54
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................ 54-56
SECTION 6.11. Acceptance of Appointment by
Successor Trustee................... 56-57
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee... 57-58
SECTION 6.13. Preferential Collection of Claims
Against the Issuer.................. 58-62
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders..................... 62-63
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities............ 63-64
SECTION 7.3. Holders to be Treated as Owners....... 64
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding......................... 64-65
SECTION 7.5. Right of Revocation of Action Taken... 65
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders.......... 65-67
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders.................. 67-68
SECTION 8.3. Effect of Supplemental Indenture...... 69
SECTION 8.4. Documents to Be Given to Trustee...... 69
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures............. 69
SECTION 8.6. Subordination Unimpaired.............. 69
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on
Certain Terms....................... 69-70
SECTION 9.2. Successor Issuer Substituted.......... 70
SECTION 9.3. Opinion of Counsel Delivered to Trustee. 70-71
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture........................... 71-74
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities. 74-75
SECTION 10.3. Repayment of Moneys Held by Paying
Agent............................... 75
SECTION 10.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years............................... 75
SECTION 10.5. Indemnity For U.S. Government
Obligations......................... 75
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability................ 76
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons.............. 76
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture.................. 76
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons......................... 76-77
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein...................... 77-78
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................ 78
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939......................... 78-79
SECTION 11.8. New York Law to Govern................ 79
SECTION 11.9. Counterparts.......................... 79
SECTION 11.10. Effect of Headings.................... 79
SECTION 11.11. Securities in a Foreign Currency
or in ECU........................... 79-80
SECTION 11.12. Judgment Currency..................... 80
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article.............. 80
SECTION 12.2. Election to Redeem; Notice of Redemption;
Partial Redemptions................. 81-82
SECTION.12.3. Payment of Securities Called for
Redemption.......................... 82-83
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.......................... 84
SECTION 12.5. Mandatory and Optional Sinking
Funds............................... 84-86
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1. Securities and Coupons Subordinated to
Senior Indebtedness................. 86-89
SECTION 13.2. Disputes with Holders of Certain
Senior Indebtedness................. 89
SECTION 13.3. Subrogation........................... 89
SECTION 13.4. Obligation of Issuer Unconditional.... 90
SECTION 13.5. Payments on Securities and Coupons
Permitted........................... 90
SECTION 13.6. Effectuation of Subordination by
Trustee............................. 90
SECTION 13.7. Knowledge of Trustee.................. 90-91
SECTION 13.8. Trustee May Hold Senior Indebtedness.. 91
SECTION 13.9. Rights of Holders of Senior
Indebtedness Not Impaired........... 91
SECTION 13.10. Article Applicable to Paying Agents... 91
SECTION 13.11. Trustee; Compensation Not Prejudiced.. 92
TESTIMONIUM.......................................... 92
SIGNATURES........................................... 92
{PAGE}
THIS SUBORDINATED INDENTURE, dated as of March 10, 1994
between CONAGRA, INC., a Delaware corporation (the "Issuer"), and
FIRST TRUST NATIONAL ASSOCIATION, a national banking corporation (the
"Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured subordinated debentures, notes or other
evidences of indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from time
to time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities and of the
Coupons, if any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939 or the definitions of
which in the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have
the meanings assigned to such terms in said force at the date of this
Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural
as well as the singular.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street
Journal (Eastern Edition), in the case of the United Kingdom, will, if
practicable, be the Financial Times (London Edition) and, in the case
of Luxembourg, will, if practicable, be the Luxemburger Wort)
315708
|
BNY
As referenced in this Subordinated Indenture:
Bank of New York; – rate for that currency
for cable transfers quoted in The City of New York as certified for
customs purposes by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate
of exchange determined by the Commission of the
_____________
Bank of New York – to such currency, the Trustee shall use, in its
sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the rate
of exchange as published in the Journal, as of the most recent
available date, or
_____________
dt 573415
;
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Cede
As referenced in this Subordinated Indenture:
Cede & Co – The Series A Debentures
will be issued as one or more global certificates only as
fully-registered securities registered in the name of Cede & Co .
(DTC's partnership nominee). Such global certificates shall bear a
legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
_____________
CEDE & CO – TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO . OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
_____________
CEDE & CO – OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO .
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR
_____________
CEDE & CO – TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO ., HAS AN
INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE AND SUPPLEMENTAL INDENTURE HEREINAFTER REFERRED
TO
_____________
Cede & Co – DEPOSITARY.
or any other legend then customary for securities of a
similar nature held by DTC.
(b) Redemption notices shall be sent to Cede & Co . If
less then all of the Series A Debentures are being redeemed, such
securities shall be redeemed in accordance with DTC's
_____________
dt 404422
;
Smith Barney
As referenced in this Subordinated Indenture:
Smith
Barney Inc – Section
7 of the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of January 26, 1995, among the Issuer, Capital and Smith
Barney Inc . as representative of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.
_____________
Smith
Barney Inc – as defined in the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of January 26, 1995, among the Issuer, Capital and Smith
Barney Inc . as representative of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.
_____________
dt 513223
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Subscribers | 2005 |
Underwriting Agreement
Underwriting Agreement (84K)
Doc #922442: Click preview link for longer preview.
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
Exhibit 1.1
PILGRIM’S PRIDE CORPORATION (a Delaware
corporation) 15,443,054 Shares of Common Stock
UNDERWRITING AGREEMENT Dated: August 3, 2005
PILGRIM’S PRIDE CORPORATION (a Delaware corporation) 15,443,054 Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT August 3, 2005 . . .
922442
|
ConAgra Foods
As referenced in this Underwriting Agreement:
ConAgra Foods, Inc – 148; as such term is defined in the Investment Company Act of 1940, as amended.
(xix) No Other Registration Rights.
Except for the registration rights agreement between the Company and ConAgra Foods, Inc . described under “Selling Stockholder—Registration Rights” in the Prospectus or as otherwise set forth in the Prospectus, there are no contracts,
agreements or understandings between the
_____________
ConAgra Foods, Inc – Securities in the manner described in the Prospectus under the caption “Use of Proceeds” and immediately following the Closing Time purchase the shares of Common Stock held by ConAgra Foods, Inc . in accordance with the terms and
conditions of the Purchase and Amendment Agreement, dated as of the date of this Agreement, between the Company and ConAgra Foods, Inc, and
_____________
ConAgra Foods, Inc – held by ConAgra Foods, Inc. in accordance with the terms and
conditions of the Purchase and Amendment Agreement, dated as of the date of this Agreement, between the Company and ConAgra Foods, Inc , and such shares of Common Stock shall thereafter be cancelled and retired. SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay or cause to be paid all
_____________
dt 1390251
;
Lehman Brothers
As referenced in this Underwriting Agreement:
LEHMAN BROTHERS INC – AGREEMENT Dated: August 3, 2005
PILGRIM’S PRIDE CORPORATION (a Delaware corporation) 15,443,054 Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT August 3, 2005 LEHMAN BROTHERS INC . 745 Seventh Avenue New York, New York 10019 Ladies and Gentlemen: Pilgrim’s Pride Corporation, a Delaware corporation (the “Company”), confirms its agreement with Lehman Brothers
_____________
Lehman Brothers Inc – LEHMAN BROTHERS INC. 745 Seventh Avenue New York, New York 10019 Ladies and Gentlemen: Pilgrim’s Pride Corporation, a Delaware corporation (the “Company”), confirms its agreement with Lehman Brothers Inc . (“Lehman Brothers” or the “Underwriter”) with respect to the sale by the Company, and
the purchase by the Underwriter, of the number of shares of
_____________
Lehman Brothers Inc – be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriter shall be directed to Lehman Brothers Inc ., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax:
646-497-4815), with a copy, in the case of any notice pursuant to Section 10(d),
_____________
Lehman Brothers Inc – Syndicate Registration (Fax:
646-497-4815), with a copy, in the case of any notice pursuant to Section 10(d), to the Director of Litigation, Office of the General Counsel, Lehman Brothers Inc ., 399 Park Avenue, 10th Floor, New York, New York 10022 (Fax: 212-520-0421); and notices to the Company shall be directed to it at 4845 US Hwy 271
_____________
LEHMAN BROTHERS INC – yours, PILGRIM’S PRIDE CORPORATION
By
/s/ Richard A. Cogdill
Executive Vice President
Chief Financial Officer,
Secretary and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC .
By
/s/ Peter J. Moses
Authorized Signatory
Managing Director
SIGNATURE PAGE TO UNDERWRITING
AGREEMENT
SCHEDULE A
Name of Underwriter
Number of
Securities
Lehman Brothers Inc.
15,443,054
Total
_____________
dt 1512157
;
|
 Weil Gotshal
As referenced in this Underwriting Agreement:
Weil,
Gotshal – forth in Schedule A opposite the name of the Underwriter. (b) Payment. Payment of the purchase price for, and delivery of the Securities shall be made at the offices of Weil,
Gotshal & Manges LLP, 200 Crescent Court, Suite 300, Dallas, Texas 75201, or at such other place as shall be agreed upon by the Underwriter and the Company, at 9:
_____________
Weil, Gotshal – as counsel to the
Underwriter may reasonably request. (c) Opinion of Counsel
for Underwriter. At Closing Time, the Underwriter shall have received the opinion, dated as of Closing Time, of Weil, Gotshal & Manges LLP, counsel for the Underwriter, in form and substance satisfactory to the Underwriter.
(d) Officers’ Certificate. At Closing Time, there shall not
have been, since the
_____________
dt 1366582
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| Preview
Subscribers | 2004 |
Underwriting Agreement
Underwriting Agreement (113K)
Doc #922579: Click preview link for longer preview.
UNDERWRITING AGREEMENT, DATED AS OF DECEMBER 7, 2004
Underwriting Agreement, dated as of December 7, 2004
Exhibit 1.1
PILGRIM’S PRIDE CORPORATION (a Delaware
corporation) 10,000,000 Shares of Common Stock UNDERWRITING AGREEMENT Dated: December 7, 2004
PILGRIM’S PRIDE CORPORATION (a Delaware corporation) 10,000,000 Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT December 7, 2004 MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & . . .
922579
|
ConAgra Foods
As referenced in this Underwriting Agreement:
ConAgra Foods Inc – Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, New York 10080 Ladies and Gentlemen:
Pilgrim’s Pride Corporation, a Delaware corporation (the
“Company”), and ConAgra Foods Inc ., a Delaware corporation, (the “Selling Shareholder”), confirm their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”) and
_____________
ConAgra Foods, Inc – Association of Securities Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc. (xii) Independent Accountants. Deloitte & Touche LLP are independent public accountants with
respect to ConAgra Foods, Inc . and its subsidiaries as required by the 1933 Act. (c) Officer’s Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered
_____________
CONAGRA FOODS, INC – the Underwriters, the Company and the Selling Shareholder in accordance with its terms.
Very truly yours,
PILGRIM’S PRIDE CORPORATION
By
/s/ Richard A. Cogdill
Title
Chief Financial Officer
CONAGRA FOODS, INC .
By
/s/ Dwight Goslee
Title
Executive Vice President, Strategic Development
CONFIRMED AND ACCEPTED,
as of the date first above written: MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER &
_____________
dt 1390252
;
CSFB LLC
As referenced in this Underwriting Agreement:
Credit Suisse First Boston LLC – of Underwriter
Number of
Initial
Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated
2,900,000
J.P. Morgan Securities Inc.
2,200,000
Lehman Brothers Inc.
2,200,000
Credit Suisse First Boston LLC
900,000
Citigroup Global Markets Inc.
600,000
Morgan Stanley & Co. Incorporated
600,000
Banc of America Securities LLC
200,000
Deutsche Bank Securities Inc.
200,000
Harris
_____________
dt 1351105
;
J.P. Morgan
As referenced in this Underwriting Agreement:
J.P. Morgan Securities Inc – Delaware corporation) 10,000,000 Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT December 7, 2004 MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc . Lehman Brothers Inc. as Representatives of the several Underwriters c/o Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, New
_____________
J.P. Morgan Securities Inc – Underwriters named in Schedule A hereto (collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Merrill Lynch,
J.P. Morgan Securities Inc . and Lehman Brothers Inc. are acting as Representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Selling Shareholder, and the purchase by
_____________
J.P. MORGAN SECURITIES INC – s/ Dwight Goslee
Title
Executive Vice President, Strategic Development
CONFIRMED AND ACCEPTED,
as of the date first above written: MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED J.P. MORGAN SECURITIES INC . LEHMAN BROTHERS INC.
By:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By
/s/ Brian Callaci
Authorized Signatory
By:
J.P. MORGAN SECURITIES INC.
By
/s/ Michael Millman
Authorized Signatory
_____________
J.P. MORGAN SECURITIES INC – MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED J.P. MORGAN SECURITIES INC. LEHMAN BROTHERS INC.
By:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By
/s/ Brian Callaci
Authorized Signatory
By:
J.P. MORGAN SECURITIES INC .
By
/s/ Michael Millman
Authorized Signatory
By:
LEHMAN BROTHERS INC.
By
/s/ Peter Moses
Authorized Signatory
For themselves and as Representatives
of the other Underwriters named in Schedule A
_____________
J.P. Morgan Securities Inc – Representatives
of the other Underwriters named in Schedule A hereto.
23
SCHEDULE A
Name of Underwriter
Number of
Initial
Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated
2,900,000
J.P. Morgan Securities Inc .
2,200,000
Lehman Brothers Inc.
2,200,000
Credit Suisse First Boston LLC
900,000
Citigroup Global Markets Inc.
600,000
Morgan Stanley & Co. Incorporated
600,000
_____________
dt 1492889
;
|
Lehman Brothers
As referenced in this Underwriting Agreement:
Lehman Brothers Inc – Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT December 7, 2004 MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc. Lehman Brothers Inc . as Representatives of the several Underwriters c/o Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, New York 10080 Ladies
_____________
Lehman Brothers Inc – collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Merrill Lynch,
J.P. Morgan Securities Inc. and Lehman Brothers Inc . are acting as Representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Selling Shareholder, and the purchase by the Underwriters, acting severally
_____________
LEHMAN BROTHERS INC – Vice President, Strategic Development
CONFIRMED AND ACCEPTED,
as of the date first above written: MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED J.P. MORGAN SECURITIES INC. LEHMAN BROTHERS INC .
By:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By
/s/ Brian Callaci
Authorized Signatory
By:
J.P. MORGAN SECURITIES INC.
By
/s/ Michael Millman
Authorized Signatory
By:
LEHMAN BROTHERS
_____________
LEHMAN BROTHERS INC – LEHMAN BROTHERS INC.
By:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By
/s/ Brian Callaci
Authorized Signatory
By:
J.P. MORGAN SECURITIES INC.
By
/s/ Michael Millman
Authorized Signatory
By:
LEHMAN BROTHERS INC .
By
/s/ Peter Moses
Authorized Signatory
For themselves and as Representatives
of the other Underwriters named in Schedule A hereto.
23
SCHEDULE A
Name of Underwriter
Number of
Initial
_____________
Lehman Brothers Inc – A hereto.
23
SCHEDULE A
Name of Underwriter
Number of
Initial
Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated
2,900,000
J.P. Morgan Securities Inc.
2,200,000
Lehman Brothers Inc .
2,200,000
Credit Suisse First Boston LLC
900,000
Citigroup Global Markets Inc.
600,000
Morgan Stanley & Co. Incorporated
600,000
Banc of America Securities LLC
200,
_____________
dt 1512158
;
Weil Gotshal
As referenced in this Underwriting Agreement:
Weil, Gotshal – any sales or purchases of fractional shares. (c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Weil, Gotshal & Manges LLP, 200 Crescent Court, Suite 300, Dallas, Texas 75201, or at such other place as shall be agreed upon by the Representatives and the Company and
the
_____________
Weil, Gotshal – counsel to the Underwriters may reasonably request. (d) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of Weil, Gotshal & Manges LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters in form and substance satisfactory to the
_____________
Weil, Gotshal – such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
15
(v) Opinion of Counsel for Underwriters. The favorable opinion of Weil, Gotshal
& Manges LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the
_____________
dt 1366583
|
| Preview
Subscribers | 2003 |
Underwriting Agreement
Underwriting Agreement (74K)
Doc #922987: Click preview link for longer preview.
UNDERWRITING AGREEMENT
Underwriting Agreement
Exhibit 1.1
$100,000,000 PILGRIM’S PRIDE CORPORATION 9 5/8% Senior Notes due 2011 UNDERWRITING AGREEMENT August 13, 2003
Credit Suisse First Boston LLC 11 Madison Avenue New York, New York 10010 Ladies and
Gentlemen: Pilgrim’s Pride Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell $100,000,000 principal amount of its 9 5/8% Senior Notes due 2011 (the “Securities”) to Credit Suisse First Boston LLC (the “ . . .
922987
|
ConAgra Foods
As referenced in this Underwriting Agreement:
ConAgra Foods, Inc – LLP are independent public accountants with respect to the Company and its subsidiaries as required by the Act. (v) Deloite & Touche LLP are independent public accountants with respect to ConAgra Foods, Inc . and its subsidiaries as
required by the Act. (w) The consolidated financial statements
included (or otherwise incorporated by reference) in the Registration Statement and the Prospectus (and any amendment
_____________
dt 1390254
;
Chase Manhattan
As referenced in this Underwriting Agreement:
Chase Manhattan Bank, – in this Agreement refers to the Indenture, as amended by the Supplemental Indenture, each between the Company and JPMorgan Chase Bank, a New York banking corporation formerly
known as The Chase Manhattan Bank, as Trustee (the “Trustee”). SECTION 1. Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) in
_____________
dt 1426120
;
CSFB LLC
As referenced in this Underwriting Agreement:
Credit Suisse First Boston LLC –
Underwriting Agreement
Exhibit 1.1
$100,000,000 PILGRIM’S PRIDE CORPORATION 9 5/8% Senior Notes due 2011 UNDERWRITING AGREEMENT August 13, 2003
Credit Suisse First Boston LLC 11 Madison Avenue New York, New York 10010 Ladies and
Gentlemen: Pilgrim’s Pride Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell $100,
_____________
Credit Suisse First Boston LLC – Delaware
corporation (the “Company”), proposes to issue and sell $100,000,000 principal amount of its 9 5/8% Senior Notes due 2011 (the “Securities”) to Credit Suisse First Boston LLC (the “Underwriter”).
The Securities are to be issued pursuant to the provisions of an Indenture dated as of August 9, 2001 (the “Indenture”), and a
_____________
Credit Suisse First Boston LLC – follows: (i) if to the Company, to Pilgrim’s Pride Corporation, 110 South Texas Street, Pittsburg, Texas 75686, Attention: Richard A. Cogdill and (ii) if to the
Underwriter, to Credit Suisse First Boston LLC , 11 Madison Avenue, New York, New York 10010, Attention: Syndicate Department, or in any case to such other address as the person to be notified may have requested in
_____________
CREDIT SUISSE FIRST BOSTON LLC – and the
Underwriter.
Very truly yours, PILGRIM’S PRIDE CORPORATION
By:
/s/ Richard A.
Cogdill
Name: Title:
Richard A. Cogdill Executive Vice President Chief Financial Officer Secretary & Treasurer
CREDIT SUISSE FIRST BOSTON LLC
By:
/s/ Robert J.
McMullan
Name: Title:
Robert J. McMullan Managing Director
SCHEDULE I
Subsidiaries Comercializadora de Carnes de Mexico S.A. de C.V. Compania Incubadora Hidalgo S.
_____________
dt 1351107
;
|
JPMorgan Chase
As referenced in this Underwriting Agreement:
JPMorgan Chase Bank, – Supplemental Indenture”).
Unless otherwise noted, reference to the “Indenture” in this Agreement refers to the Indenture, as amended by the Supplemental Indenture, each between the Company and JPMorgan Chase Bank, a New York banking corporation formerly
known as The Chase Manhattan Bank, as Trustee (the “Trustee”). SECTION 1. Registration Statement and Prospectus. The Company has prepared and
_____________
dt 1405709
;
Weil Gotshal
As referenced in this Underwriting Agreement:
Weil, Gotshal – 148;. The documents to be delivered on the Closing Date on behalf of the parties
hereto pursuant to Section 8 of this Agreement shall be delivered at the offices of Weil, Gotshal & Manges LLP, 200 Crescent Court, Suite 300, Dallas, Texas 75201, and the Securities shall be delivered to the Trustee, all on the Closing Date.
2
SECTION 5. Agreements
_____________
Weil, Gotshal – the Underwriter at the request of the Company and shall so state therein. (g) The Underwriter shall have received on the Closing Date an opinion, dated the Closing Date, of Weil, Gotshal & Manges LLP, counsel for the Underwriter, as to the matters referred to in Sections 8(f)(iv),
8(f)(v), 8(f)(vi), 8(f)(ix) (but only
_____________
dt 1366585
|