1
EXHIBIT 10.11
DOMINICK'S FINER FOODS, INC.,
as Issuer,
AND
THE SUBSIDIARY GUARANTORS
named herein,
AND
United States Trust Company of New York,
as Trustee
_________________
INDENTURE
Dated as of May 4, 1995
________________
$200,000,000
10 7/8% Senior Subordinated Notes
due 2005
and
Series B 10 7/8% Senior Subordinated Notes due 2005
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
----------- ----------
310(a)(1)........................8.10
(a)(2)........................8.10
(a)(3)........................N.A.
(a)(4)........................N.A.
(a)(5)........................8.10; 8.11
(b)...........................8.08; 8.10;
13.02
(c)...........................N.A.
311(a)...........................8.11
(b)...........................8.11
(c)...........................N.A.
312(a)...........................2.05
(b)...........................13.03
(c)...........................13.03
313(a)...........................8.06
(b)(1)........................N.A.
(b)(2)........................8.06
(c)...........................8.06; 13.02
(d)...........................8.06
314(a)...........................5.07; 5.09;
13.02
(b)...........................N.A.
(c)(1)........................8.02; 13.04
(c)(2)........................8.02; 13.04
(c)(3)........................N.A.
(d)...........................N.A.
(e)...........................13.05
(f)...........................N.A.
315(a)...........................8.01(b)
(b)...........................8.05; 13.02
(c)...........................8.01(a)
(d)...........................8.01(c)
(e)...........................7.11
316(a)(last sentence)............2.09
(a)(1)(A).....................7.05
(a)(1)(B).....................7.04
(a)(2)........................N.A.
(b)...........................7.07
317(a)(1)........................7.08
(a)(2)........................7.09
(b)...........................2.04
318(a)...........................13.01
(c)...........................13.01
______________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Page
Section 1.01 Definitions........................................... 1
Section 1.02 Incorporation by Reference of TIA..................... 32
Section 1.03 Rules of Construction................................. 32
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating....................................... 33
Section 2.02 Execution and Authentication.......................... 34
Section 2.03 Registrar and Paying Agent............................ 35
Section 2.04 Paying Agent to Hold Assets in Trust.................. 36
Section 2.05 Securityholder Lists.................................. 36
Section 2.06 Transfer and Exchange................................. 37
Section 2.07 Replacement Securities................................ 37
Section 2.08 Outstanding Securities................................ 38
Section 2.09 Treasury Securities................................... 38
Section 2.10 Temporary Securities.................................. 39
Section 2.11 Cancellation.......................................... 39
Section 2.12 Defaulted Interest.................................... 39
Section 2.13 CUSIP Number.......................................... 40
Section 2.14 Restrictive Legends................................... 40
Section 2.15 Book-Entry Provisions for Global Security............. 42
Section 2.16 Special Transfer Provisions........................... 43
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee.................................... 46
Section 3.02 Selection of Securities to Be Redeemed................ 46
Section 3.03 Notice of Redemption.................................. 47
Section 3.04 Effect of Notice of Redemption........................ 48
Section 3.05 Deposit of Redemption Price........................... 48
Section 3.06 Securities Redeemed in Part........................... ▇▇
-▇-
▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
Page
Section 4.01 Securities Subordinated to Senior
Indebtedness....................................... 49
Section 4.02 Suspension of Payment When Senior
Indebtedness in Default............................ 49
Section 4.03 Securities Subordinated to Prior Payment
of All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company........... 51
Section 4.04 Securityholders to Be Subrogated to Rights
of Holders of Senior Indebtedness.................. 53
Section 4.05 Obligations of the Company Unconditional.............. 54
Section 4.06 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.................... 54
Section 4.07 Application by Trustee of Assets Deposited
with It............................................ 55
Section 4.08 No Waiver of Subordination Provisions................. 55
Section 4.09 Securityholders Authorize Trustee to
Effectuate Subordination of Securities............. 56
Section 4.10 Right of Trustee to Hold Senior
Indebtedness....................................... 57
Section 4.11 No Suspension of Remedies............................. 57
Section 4.12 No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness................................ 57
ARTICLE FIVE
COVENANTS
Section 5.01 Payment of Securities................................. 58
Section 5.02 Maintenance of Office or Agency....................... 58
Section 5.03 Limitation on Restricted Payments..................... 58
Section 5.04 Corporate Existence................................... 60
Section 5.05 Payment of Taxes and Other Claims..................... 60
Section 5.06 Maintenance of Properties and Insurance............... 61
Section 5.07 Compliance Certificate; Notice of Default............. 62
Section 5.08 Compliance with Laws.................................. 63
Section 5.09 SEC Reports........................................... 63
Section 5.10 Waiver of Stay, Extension or Usury Laws............... 63
Section 5.11 Limitation on Transactions with Affiliates............ 64
Section 5.12 Limitation on Incurrences of Additional
Indebtedness....................................... 66
Section 5.13 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries................ 66
Section 5.14 Limitation on Liens................................... 67
Section 5.15 Limitation on Change of Control....................... 68
Section 5.16 Limitation on Asset Sales............................. 71
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Page
Section 5.17 Guarantees of Certain Indebtedness.................... 74
Section 5.18 Limitation on Preferred Stock of
Subsidiaries....................................... 74
Section 5.19 Limitation on Other Senior Subordinated
Indebtedness....................................... 74
ARTICLE SIX
SUCCESSOR CORPORATION
Section 6.01 Limitation on Mergers and Certain Other
Transactions....................................... 75
Section 6.02 Successor Corporation Substituted..................... 76
ARTICLE SEVEN
DEFAULT AND REMEDIES
Section 7.01 Events of Default..................................... 77
Section 7.02 Acceleration.......................................... 79
Section 7.03 Other Remedies........................................ 81
Section 7.04 Waiver of Past Defaults............................... 81
Section 7.05 Control by Majority................................... 81
Section 7.06 Limitation on Suits................................... 82
Section 7.07 Rights of Holders to Receive Payment.................. 82
Section 7.08 Collection Suit by Trustee............................ 83
Section 7.09 Trustee May File Proofs of Claim...................... 83
Section 7.10 Priorities............................................ 84
Section 7.11 Right and Remedies Cumulative......................... 84
Section 7.12 Delay or Omission Not Waiver.......................... 84
Section 7.13 Undertaking for Costs................................. 85
ARTICLE EIGHT
TRUSTEE
Section 8.01 Duties of Trustee..................................... 85
Section 8.02 Rights of Trustee..................................... 87
Section 8.03 Individual Rights of Trustee.......................... 87
Section 8.04 Trustee's Disclaimer.................................. 88
Section 8.05 Notice of Default..................................... 88
Section 8.06 Reports by Trustee to Holders......................... 88
Section 8.07 Compensation and Indemnity............................ 89
Section 8.08 Replacement of Trustee................................ 89
Section 8.09 Successor Trustee by Merger, Etc...................... 91
Section 8.10 Eligibility; Disqualification......................... 91
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Page
Section 8.11 Preferential Collection of Claims Against
Company............................................ 91
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Termination of the Company's Obligations.............. 91
Section 9.02 Legal Defeasance and Covenant Defeasance.............. 93
Section 9.03 Application of Trust Money............................ 98
Section 9.04 Repayment to Company or Subsidiary
Guarantors......................................... 98
Section 9.05 Reinstatement......................................... 99
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders............................ 99
Section 10.02 With Consent of Holders............................... 100
Section 10.03 Compliance with TIA................................... 102
Section 10.04 Revocation and Effect of Consents..................... 102
Section 10.05 Notation on or Exchange of Securities................. 103
Section 10.06 Trustee to Sign Amendments, Etc....................... 103
ARTICLE ELEVEN
GUARANTEE
Section 11.01 Unconditional Guarantee............................... 103
Section 11.02 Subordination of Guarantee............................ 105
Section 11.03 Severability.......................................... 105
Section 11.04 Release of a Subsidiary Guarantor..................... 105
Section 11.05 Limitation of Subsidiary Guarantor's
Liability.......................................... 106
Section 11.06 Subsidiary Guarantors May Consolidate,
etc., on Certain Terms............................. 106
Section 11.07 Contribution.......................................... 107
Section 11.08 Waiver of Subrogation................................. 108
Section 11.09 Execution of Guarantee................................ 109
Section 11.10 Waiver of Stay, Extension or Usury Laws............... 109
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Page
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 12.01 Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness...................... 110
Section 12.02 Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default........... 110
Section 12.03 Guarantee Obligations Subordinated to
Prior Payment of All Guarantor Senior
Indebtedness on Dissolution, Liquidation
or Reorganization of Such Subsidiary
Guarantor.......................................... 112
Section 12.04 Holders of Guarantee Obligations To Be
Subrogated to Rights of Holders of
Guarantor Senior Indebtedness...................... 114
Section 12.05 Obligations of the Subsidiary Guarantors
Unconditional...................................... 115
Section 12.06 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.................... 116
Section 12.07 Application by Trustee of Assets Deposited
with It............................................ 116
Section 12.08 No Waiver of Subordination Provisions................. 117
Section 12.09 Holders Authorize Trustee to Effectuate
Subordination of Guarantee Obligations............. 117
Section 12.10 Right of Trustee to Hold Guarantor Senior
Indebtedness....................................... 118
Section 12.11 No Suspension of Remedies............................. 118
Section 12.12 No Fiduciary Duty of Trustee to Holders
of Guarantor Senior Indebtedness................... 119
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 TIA Controls.......................................... 119
Section 13.02 Notices............................................... 119
Section 13.03 Communications by Holders with Other
Holders............................................ 120
Section 13.04 Certificate and Opinion as to Conditions
Precedent.......................................... 121
Section 13.05 Statements Required in Certificate or
Opinion............................................ 121
Section 13.06 Rules by Trustee, Paying Agent, Registrar............. 122
Section 13.07 Legal Holidays........................................ 122
Section 13.08 Governing Law......................................... 122
Section 13.09 No Adverse Interpretation of Other
Agreements......................................... 122
Section 13.10 No Recourse Against Others............................ 122
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Page
Section 13.11 Successors............................................ 123
Section 13.12 Duplicate Originals................................... 123
Section 13.13 Severability.......................................... 123
Section 13.14 No Violation.......................................... 123
Signatures............................................................. 124
Exhibit A - Form of Initial Security with Guarantees
Exhibit B - Form of Exchange Security with Guarantees
Exhibit C - Form of Certificate To Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection
with Transfers pursuant to Regulation S
Schedule I - Specified Properties
Schedule II - Certain Permitted Indebtedness
Note: This Table of Contents shall not, for any purpose, be deemed
to be part of the Indenture.
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9
INDENTURE dated as of May 4, 1995, among DOMINICK'S FINER FOODS, INC.,
a Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS, and United
States Trust Company of New York, as Trustee.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Company's 10 7/8%
Senior Subordinated Notes due 2005 (the "Initial Securities") and Series B
10 7/8% Senior Subordinated Notes due 2005 (the "Exchange Securities," and
together with the Initial Securities, the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means (i) with respect to any person that
becomes a Subsidiary of the Company (or is merged into the Company or any of its
Subsidiaries) after the Issue Date, Indebtedness of such person or any of its
subsidiaries existing at the time such person becomes a Subsidiary of the
Company (or is merged into the Company or any of its Subsidiaries) and which was
not incurred in connection with, or in contemplation of, such person becoming a
Subsidiary of the Company (or being merged into the Company or any of its
Subsidiaries) and (ii) with respect to the Company or any of its Subsidiaries,
any Indebtedness assumed by the Company or any of its Subsidiaries in connection
with the acquisition of any assets from another person (other than the Company
or any of its Subsidiaries), and which was not incurred by such other person in
connection with, or in contemplation of, such acquisition.
"Acquisition" means the acquisition of the Company under and in
accordance with the terms of the Stock Purchase Agreement.
"Adjusted Net Assets" shall have the meaning provided in Section 11.07.
"Affiliate" as applied to any person, means any other person directly
or indirectly controlling, controlled by, or under common control with, that
person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
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management and policies of that person whether through the ownership of voting
securities or by contract or otherwise. Notwithstanding the foregoing, the term
"Affiliate," with respect to the Company and its Subsidiaries, shall not include
BT Securities Corporation, Chase Securities, Inc. nor any of their respective
Affiliates.
"Affiliate Transaction" shall have the meaning provided in
Section 5.11.
"Agent" means any Registrar, Paying Agent or co- Registrar.
"Asset Sale" means, with respect to any person, any direct or indirect
sale, issuance, conveyance, lease, assignment, transfer or other disposition or
series of sales, transfers or other dispositions (including, without limitation,
by merger or consolidation or by exchange of assets and whether by operation of
law or otherwise) made by such person or any of its subsidiaries to any person
other than such person or one of its wholly owned subsidiaries (or, in the case
of a sale, transfer or other disposition by a Subsidiary, to any person other
than the Company or a directly or indirectly wholly owned Subsidiary) of any
assets of such person or any of its subsidiaries including, without limitation,
assets consisting of any Capital Stock or other securities held by such person
or any of its subsidiaries, and any Capital Stock issued by any subsidiary of
such person, in each case, outside of the ordinary course of business,
excluding, however, any sale, transfer or other disposition, or series of
related sales, transfers or other dispositions (i) resulting in Net Proceeds to
the Company and the Subsidiaries of $250,000 or less or (ii) of Cash Equivalents
or inventory in the ordinary course of business or obsolete equipment in the
ordinary course of business consistent with past practices of the Company or
(iii) the lease or sublease of any real or personal property in the ordinary
course of business or (iv) the proceeds of such Asset Sale which are not applied
in accordance with Section 5.16 and which, together with all other such Asset
Sale proceeds do not exceed $10 million.
"Bankruptcy Law" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute or any
other United States federal, state or local law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
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"BDI" means Blackhawk Development Inc., a Delaware corporation.
"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any duly authorized committee of that Board.
"Board Resolution" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such person.
"BPI" means Blackhawk Properties, Inc., a Delaware corporation.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligations shall be
the capitalized amount of such obligations determined in accordance with GAAP.
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock, including, without limitation, each class of Common Stock and Preferred
Stock of such Person.
"Cash Equivalents" means (i) obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof, or obligations
issued by any agency or instrumentality thereof and backed by the full faith and
credit of the United States of America, (ii) commercial paper rated the highest
grade by ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Group and
maturing not more than one year from the date of creation thereof, (iii) time
deposits with, and certificates of deposit and banker's acceptances issued by,
any bank having capital surplus and undivided profits aggregating at least $500
million and maturing not more than one year from the date of creation thereof,
(iv) repurchase agreements that are secured by a perfected security interest in
an obligation described in clause (i) and are with any bank described in clause
(iii), (v) shares of any money market mutual fund that (a) has at least 95% of
its assets invested continuously in the types of investments referred to in
clauses (i) and (ii) above, (b) has net assets of not less than $500 million,
and (c) has the highest rating obtainable from either Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. and (vi) readily marketable
direct obligations issued by any state of the United States of America or any
political subdivision thereof having one of the two highest
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rating categories obtainable from either ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Ratings Group.
"Change of Control" means the acquisition after the Issue Date, in one
or more transactions, of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) by (i) any person or entity (other than any Permitted
Holder) or (ii) any group of persons or entities (excluding any Permitted
Holders) who constitute a group (within the meaning of Section 13(d)(3) of the
Exchange Act), in either case, of any securities of Holdings or the Company such
that, as a result of such acquisition, such person, entity or group beneficially
owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, 40% or more of the then outstanding voting securities entitled to
vote on a regular basis for a majority of the Board of Directors of the Company
(but only to the extent that such beneficial ownership is not shared with any
Permitted Holder who has the power to direct the vote thereof); provided,
however, that no such Change of Control shall be deemed to have occurred if (A)
the Permitted Holders beneficially own, in the aggregate, at such time, a
greater percentage of such voting securities than such other person, entity or
group or (B) at the time of such acquisition, the Permitted Holders (or any of
them) possess the ability (by contract or otherwise) to elect, or cause the
election, of a majority of the members of the Company's Board of Directors.
"Change of Control Date" shall have the meaning provided in Section
5.15.
"Change of Control Offer" shall have the meaning provided in Section
5.15.
"Change of Control Payment Date" shall have the meaning provided in
Section 5.15.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of, such person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
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"Consolidated Net Income," means, with respect to any person, for any
period, the aggregate of the net income (or loss) of such person and its
subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (a) the net income of any other person in which such
person or any of its subsidiaries has an interest (which interest does not cause
the net income of such other person to be consolidated with the net income of
such person and its subsidiaries in accordance with GAAP) shall be included only
to the extent of the amount of dividends or distributions actually paid to such
person or such subsidiary by such other person during such period; (b) the net
income of any subsidiary of such person that is subject to any Payment
Restriction shall be excluded to the extent such Payment Restriction actually
prevented the payment of an amount that otherwise could have been paid to such
person or to a subsidiary of such person not subject to any Payment Restriction;
and (c) there shall be excluded (i) the net income (or loss) of any other person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition, (ii) all gains and losses realized on any Asset Sale, (iii)
all gains realized upon or in connection with or as a consequence of any gains
on pension reversions received by such person or any of its subsidiaries, (iv)
all gains and losses realized on the purchase or other acquisition by such
person or any of its subsidiaries of any securities of such person or any of its
subsidiaries, (v) all other net extraordinary gains, and (vi) (A) all non-cash
charges (provided, however, that any cash payments actually made with respect to
the liabilities for which such charges were created shall be deducted from
Consolidated Net Income in the period when made) and (B) all deferred financing
costs written off in connection with the early extinguishment of any
Indebtedness, in each case, incurred by the Company or any of its Subsidiaries
in connection with the Acquisition.
"Consolidated Net Worth" means, with respect to any person, (i) the
total stockholders' equity (exclusive of any Disqualified Capital Stock) of such
person and its subsidiaries determined on a consolidated basis in accordance
with GAAP plus (ii) to the extent amounts attributable thereto are not otherwise
included in clause (i), the aggregate amount of the liquidation preference
(including accrued but unpaid dividends thereon to the extent such dividends
have reduced any amounts included in clause (i) without an offsetting increase)
then applicable to the Seller Preferred Stock (which amount, on a per share
basis, shall in no event be greater than the amount per share in effect on the
Issue Date plus any accrued but unpaid dividends thereon to the extent such
dividends have reduced any amounts included in clause (i) without an offsetting
increase).
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"Credit Agent" means, at any time, the then-acting Administrative Agent
as defined in and under the Senior Credit Facilities, which initially shall be
Bankers Trust Company. The Company shall promptly notify the Trustee of any
change in the Credit Agent.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DFF" means DFF Supermarkets, Inc., a Delaware corporation.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Designated Senior Indebtedness" means (i) any Indebtedness under the
Senior Credit Facilities and (ii) if no Indebtedness under the Senior Credit
Facilities is outstanding, any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount of, or under which, at the date
of determination, the holders thereof are committed to lend up to, at least $25
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture. For purposes of this definition,
the term "Senior Credit Facilities" shall not include any agreement governing
Indebtedness incurred to refund, replace or refinance borrowings or commitments
under the Senior Credit Facilities other than any such agreements incurred to
refund, replace or refinance the entirety of the borrowings and commitments then
outstanding or permitted to be outstanding thereunder.
"Disqualified Capital Stock" means, with respect to any person, any
Capital Stock of such person or its subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which it is convertible, puttable or exchangeable, is, or upon the happening of
an event or the passage of time would be, required to be redeemed or repurchased
by such person or its subsidiaries, including at the option of the holder
thereof, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, on or prior to
the Maturity Date or any other Capital Stock of such person or its subsidiaries
designated as Disqualified Capital Stock by such person at the time of issuance;
provided, however, that if such Capital Stock is either (i) redeemable or
repurchasable solely at the option of such person or (ii) issued to
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employees of the Company or its Subsidiaries or to any plan for the benefit of
such employees, such Capital Stock shall not constitute Disqualified Capital
Stock unless so designated.
"EBITDA" means, with respect to any person, for any period, the
Consolidated Net Income of such person for such period, plus, in each case to
the extent deducted in computing Consolidated Net Income of such person for such
period (without duplication) (i) provisions for income taxes or similar charges
recognized by such person and its consolidated subsidiaries accrued during such
period, (ii) depreciation and amortization expense of such person and its
consolidated subsidiaries accrued during such period (but only to the extent not
included in Fixed Charges), (iii) Fixed Charges of such person and its
consolidated subsidiaries for such period, (iv) LIFO charges (credit) of such
person and its consolidated subsidiaries for such period, (v) the amount of any
restructuring reserve or charge recorded during such period in accordance with
GAAP, including any such reserve or charge related to the Acquisition, and (vi)
any other non-cash charges reducing Consolidated Net Income for such period
(excluding any such charge which requires an accrual of or a cash reserve for
anticipated cash charges for any future period), less, without duplication, (x)
non-cash items increasing Consolidated Net Income of such person for such period
(excluding any such items which represent the reversal of any accrual of, or
cash reserve for, anticipated cash charges in any prior period) in each case
determined in accordance with GAAP and (y) the amount of all cash payments made
by such person or its subsidiaries during such period to the extent that such
cash payment has been provided for in a restructuring reserve or charge referred
to in clause (v) above (and was not otherwise deducted in the computation of
Consolidated Net Income of such person for such period).
"Event of Default" shall have the meaning provided in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Exchange Securities" has the meaning provided in the preamble to this
Indenture.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Securities to exchange all the Initial Securities
held by such Holder for the Exchange Securities in an aggregate principal amount
equal to the
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aggregate principal amount of the Initial Securities held by such Holder, all in
accordance with the terms and conditions of the Registration Rights Agreement by
and among the Company, the Subsidiary Guarantors and the Initial Purchasers,
dated May 4, 1995.
"Fiscal Year" means the fiscal year of the Company and its Subsidiaries
ending on the Saturday closest to October 31 of each calendar year. For purposes
of this Indenture, any particular Fiscal Year shall be designated by reference
to the calendar year in which such Fiscal Year ends.
"Fixed Charge Coverage Ratio" means, with respect to any person, the
ratio of (1) EBITDA of such person for the period (the "Pro Forma Period")
consisting of the most recent four full fiscal quarters for which financial
information in respect thereof is available immediately prior to the date of the
transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio
(the "Transaction Date") to (2) the aggregate Fixed Charges of such person for
the fiscal quarter in which the Transaction Date occurs and the three fiscal
quarters immediately subsequent to such fiscal quarter (the "Forward Period")
reasonably anticipated by the Board of Directors of such person to become due
from time to time during such period. In addition to, but without duplication
of, the foregoing, for purposes of this definition, "EBITDA" shall be calculated
after giving effect (without duplication), on a pro forma basis for the Pro
Forma Period (but no longer), to (a) any Investment, during the period
commencing on the first day of the Pro Forma Period to and including the
Transaction Date (the "Reference Period"), in any other person that, as a result
of such Investment, becomes a subsidiary of such person, (b) the acquisition,
during the Reference Period (by merger, consolidation or purchase of stock or
assets) of any business or assets, and (c) any sales or other dispositions of
assets (other than sales of inventory in the ordinary course of business)
occurring during the Reference Period, in each case as if such incurrence,
Investment, repayment, acquisition or asset sale had occurred on the first day
of the Reference Period. In addition, for purposes of this definition, "Fixed
Charges" shall be calculated after giving effect (without duplication), on a pro
forma basis for the Forward Period, to any Indebtedness incurred or repaid on or
after the first day of the Reference Period and prior to the Transaction Date,
including any Indebtedness of an entity which existed at the time such entity
became a subsidiary of such person which shall be deemed Incurred as of the date
such entity became a subsidiary of such person. If such person or any of its
subsidiaries directly or indirectly guarantees any Indebtedness of a third
person, the Fixed Charge Coverage Ratio shall give effect to the incurrence of
such
17
-9-
Indebtedness as if such person or subsidiary had directly incurred such
guaranteed Indebtedness.
"Fixed Charges" means, with respect to any person, for any period, the
aggregate amount of (i) interest, whether expensed or capitalized, paid, accrued
or scheduled to be paid or accrued during such period (except to the extent
accrued in a prior period) in respect of all Indebtedness of such person and its
consolidated subsidiaries (including (a) original issue discount on any
Indebtedness, but excluding amortization of debt issuance costs, and (b) the
interest portion of all deferred payment obligations, calculated in accordance
with the effective interest method, in each case to the extent attributable to
such period, but excluding amortization of debt issuance costs), and (ii)
dividend requirements on Preferred Stock of such person and its consolidated
subsidiaries paid or scheduled to be paid in cash during such period and
excluding items eliminated in consolidation. For purposes of this definition,
(a) interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Board of Directors of such person (as
evidenced by a Board Resolution) to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP, (b) interest on
Indebtedness that is determined on a fluctuating basis shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest of such
Indebtedness in effect on the date Fixed Charges are being calculated, (c)
interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Company
may designate, and (d) Fixed Charges shall be increased or reduced by the net
cost (including amortization of discount) or benefit associated with Interest
Swap Obligations attributable to such period. For purposes of clause (ii) above,
dividend requirements shall be increased to an amount representing the pretax
earnings that would be required to cover such dividend requirements;
accordingly, the increased amount shall be equal to a fraction, the numerator of
which is the amount of such dividend requirements and the denominator of which
is one (1) minus the applicable actual combined federal, state, local and
foreign income tax rate of such person and its subsidiaries (expressed as a
decimal), on a consolidated basis, for the fiscal year immediately preceding the
date of the transaction giving rise to the need to calculate Fixed Charges.
"Foreign Exchange Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or
18
-10-
arrangement designed to protect against fluctuations in currency values.
"Forward Period" shall have the meaning provided in the definition of
"Operating Coverage Ratio" contained in this Section 1.01.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of the date of this Indenture.
"Guarantee" means the guarantee of each Subsidiary Guarantor set forth
in Article Eleven and any additional guarantee of the Securities executed by any
Subsidiary of the Company.
"Guarantee Obligations" shall have the meaning provided in Section
12.01.
"Guarantor Payment Blockage Period" shall have the meaning provided in
Section 12.02.
"Guarantor Senior Indebtedness" means, with respect to any Subsidiary
Guarantor, the principal of, premium, if any, and interest on and all other
Obligations with respect to any Indebtedness of such Subsidiary Guarantor,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Subsidiary Guarantor. Without limiting the
generality of the foregoing, "Guarantor Senior Indebtedness" shall include (x)
the principal of, premium, if any, and interest on all obligations of every
nature of such Subsidiary Guarantor from time to time owed to the lenders under
the Senior Credit Facilities, including, without limitation, the Letter of
Credit Obligations and principal of and interest on, and all fees, indemnities
and expenses payable under the Senior Credit Facilities and (y) interest
accruing thereon subsequent to the occurrence of any Event of Default specified
in clauses (vi) and (vii) of Section 7.01 relating to the Subsidiary Guarantors,
whether or not the claim for such interest is allowed under any applicable
Bankruptcy Law. Notwithstanding the foregoing, "Guarantor Senior Indebtedness"
shall not include (a) Indebtedness evidenced by the Guarantee of such Subsidiary
Guarantor, (b) Indebtedness that is expressly subordinate or junior in right of
payment to any Indebtedness of such Subsidiary Guarantor, (c) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to
19
-11-
such Subsidiary Guarantor (other than Capitalized Lease Obligations), (d)
Indebtedness which is represented by Disqualified Capital Stock, (e) obligations
for goods, materials or services purchased in the ordinary course of business or
obligations consisting of trade payables, (f) Indebtedness of or amounts owed by
such Subsidiary Guarantor for compensation to employees or for services rendered
to such Subsidiary Guarantor, (g) any liability for federal, state, local or
other taxes owed or owing by such Subsidiary Guarantor, (h) Indebtedness of such
Subsidiary Guarantor representing a guarantee of Subordinated Indebtedness or
Pari Passu Indebtedness of the Company or any other Subsidiary Guarantor, (i)
Indebtedness of such Subsidiary Guarantor to a Subsidiary of the Company and (j)
that portion of any Indebtedness which is incurred by such Subsidiary Guarantor
in violation of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"Holdings" means Dominick's Supermarkets, Inc., a Delaware corporation.
"Indebtedness" means with respect to any person, without duplication,
(i) all liabilities, contingent or otherwise, of such person (a) for borrowed
money (whether or not the recourse of the lender is to the whole of the assets
of such person or only to a portion thereof), (b) evidenced by bonds, notes,
debentures, drafts accepted or similar instruments or letters of credit or
representing the balance deferred and unpaid of the purchase price of any
property (other than any such balance that represents an account payable or any
other monetary obligation to a trade creditor (whether or not an Affiliate)
created, incurred, assumed or guaranteed by such person in the ordinary course
of business of such person in connection with obtaining goods, materials or
services and due within twelve months (or such longer period for payment as is
customarily exended by such trade creditor) of the incurrence thereof, which
account is not overdue by more than 90 days, according to the original terms of
sale, unless such account payable is being contested in good faith), or (c) for
the payment of money relating to a Capitalized Lease Obligation; (ii) the
maximum fixed repurchase price of all Disqualified Capital Stock of such person;
(iii) reimbursement obligations of such person with respect to letters of
credit; (iv) obligations of such person with respect to Interest Swap
Obligations and Foreign Exchange Agreements; (v) all liabilities of others of
the kind described in the preceding clause (i), (ii), (iii) or (iv) that such
person has guaranteed or that is otherwise its legal liability; and (vi) all
obligations of others secured by a Lien to which any of the
20
-12-
properties or assets (including, without limitation, leasehold interests and any
other tangible or intangible property rights) of such person are subject,
whether or not the obligations secured thereby shall have been assumed by such
person or shall otherwise be such person's legal liability (provided that if the
obligations so secured have not been assumed by such person or are not otherwise
such person's legal liability, such obligations shall be deemed to be in an
amount equal to the fair market value of such properties or assets, as
determined in good faith by the Board of Directors of such person, which
determination shall be evidenced by a Board Resolution). For purposes of the
preceding sentence, the "maximum fixed repurchase price" of any Disqualified
Capital Stock that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock (or any equity security for which it may be exchanged or
converted), such fair market value shall be determined in good faith by the
Board of Directors of such person, which determination shall be evidenced by a
Board Resolution. For purposes of this Indenture, Indebtedness incurred by any
person that is a general partnership (other than non-recourse Indebtedness)
shall be deemed to have been incurred by the general partners of such
partnership pro rata in accordance with their respective interests in the
liabilities of such partnership unless any such general partner shall, in the
reasonable determination of the Board of Directors of the Company, be unable to
satisfy its pro rata share of the liabilities of the partnership, in which case
the pro rata share of any Indebtedness attributable to such partner shall be
deemed to be incurred at such time by the remaining general partners on a pro
rata basis in accordance with their interests.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking or consulting firm of nationally recognized standing that is,
in the reasonable and good faith judgment of the Board of Directors of the
Company, qualified to perform the task for which such firm has been engaged and
disinterested and independent with respect to the Company and its Affiliates.
"Initial Purchasers" means BT Securities Corporation and Chase
Securities, Inc.
21
-13-
"Initial Securities" has the meaning provided in the preamble to this
Indenture.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Interest Swap Obligation" means any obligation of any person pursuant
to any arrangement with any other person whereby, directly or indirectly, such
person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount; provided that
the term "Interest Swap Obligation" shall also include interest rate exchange,
collar, cap, swap option or similar agreements providing interest rate
protection.
"Investment" by any person in any other person means any investment by
such person in such other person, whether by share purchase, capital
contribution, loan, advance (other than reasonable loans and advances to
employees for moving and travel expenses, as salary advances or to permit the
purchase of Qualified Capital Stock of the Company or Holdings and other similar
customary expenses incurred, in each case in the ordinary course of business
consistent with past practice) or similar credit extension constituting
Indebtedness of such other person, and any guarantee of Indebtedness of any
other person.
"Issue Date" means the date of original issuance of the Securities
under this Indenture.
"Legal Holiday" shall have the meaning provided in Section 13.07.
"Letter of Credit Obligations" means Indebtedness of the Company or any
of its Subsidiaries with respect to letters of credit issued pursuant to the
Senior Credit Facilities, and for purposes of the definition of the term
"Permitted Indebtedness," the aggregate principal amount of Indebtedness
outstanding at any time with respect thereto shall be deemed to consist of (a)
the aggregate maximum amount then available to be drawn under all such letters
of credit (the determination of such maximum amount to assume compliance with
all conditions for drawing), and (b) the aggregate amount that has been paid by,
and not reimbursed to, the issuers under such letters of credit.
"Lien" means any mortgage, pledge, lien, encumbrance,
charge or adverse claim affecting title or resulting in an
22
-14-
encumbrance against real or personal property, or a security interest of any
kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell which is
intended to constitute or create a security interest, mortgage, pledge or lien,
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction); provided that in
no event shall an operating lease be deemed to constitute a Lien under this
Indenture.
"Maturity Date" means May 1, 2005.
"Net Cash Proceeds" means the Net Proceeds of any Asset Sale received
in the form of cash or Cash Equivalents.
"Net Proceeds" means (a) in the case of any Asset Sale or any issuance
and sale by any person of Qualified Capital Stock, the aggregate net proceeds
received by such person after payment of expenses, taxes, commissions and the
like incurred in connection therewith (and, in the case of any Asset Sale, net
of the amount of cash applied to repay Indebtedness secured by the asset
involved in such Asset Sale), whether such proceeds are in cash or in property
(valued at the fair market value thereof at the time of receipt, as determined
with respect to any Asset Sale resulting in Net Proceeds in excess of $5.0
million in good faith by the Board of Directors of such person, which
determination shall be evidenced by a Board Resolution) and (b) in the case of
any conversion or exchange of any outstanding Indebtedness or Disqualified
Capital Stock of such person for or into shares of Qualified Capital Stock of
the Company, the sum of (i) the fair market value of the proceeds received by
the Company in connection with the issuance of such Indebtedness or Disqualified
Capital Stock on the date of such issuance and (ii) any additional amount paid
by the holder to the Company upon such conversion or exchange.
"Non-payment Default" means any event (other than a Payment Default)
the occurrence of which entitles one or more persons to act to accelerate the
maturity of any Designated Senior Indebtedness.
"Obligations" means all obligations of every nature whether for
principal, reimbursements, interest, fees, expenses, indemnities or otherwise,
and whether primary, secondary, direct, indirect, contingent, fixed or otherwise
(including obligations of performance) under the documentation governing any
Indebtedness.
23
-15-
"Offering Memorandum" means the Offering Memorandum dated April 27,
1995, pursuant to which the Initial Securities were offered, and any supplement
thereto.
"Officer" means, with respect to any person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer, the Controller,
or the Secretary of such person.
"Officers' Certificate" means, with respect to any person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such person and otherwise complying with
the requirements of Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.04 and 13.05. Unless otherwise required by the Trustee, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
"Parent Intercompany Note" means that certain promissory note dated as
of March 22, 1995, due from DFF to the Company in the original principal amount
of $344,865,000 evidencing the loan made by the Company to DFF in such amount on
the Acquisition closing date as in effect on such date.
"Pari Passu Indebtedness" means, with respect to the Company or any
Subsidiary Guarantor, Indebtedness of such person which ranks pari passu in
right of payment to the Securities or the Guarantee of such Subsidiary
Guarantor, as the case may be.
"Paying Agent" shall have the meaning provided in Section 2.03, except
that, for the purposes of Articles Three and Nine and Sections 5.15 and 5.16,
the Paying Agent shall not be the Company or an Affiliate of the Company.
"Payment Blockage Notice" shall have the meaning provided in Section
4.02.
"Payment Blockage Period" shall have the meaning provided in Section
4.02.
"Payment Default" means any default in the payment of
principal, premium, if any, or interest on any Designated Senior
Indebtedness or Significant Senior Indebtedness beyond any
applicable grace period with respect thereto.
24
-16-
"Payment Restriction" means, with respect to a subsidiary of any
person, any encumbrance, restriction or limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or Indebtedness owed to such
person or any other subsidiary of such person, (b) make loans or advances to
such person or any other subsidiary of such person, or (c) transfer any of its
properties or assets to such person or any other subsidiary of such person, or
(ii) such person or any other subsidiary of such person to receive or retain any
such (a) dividends, distributions or payments, (b) loans or advances, or (c)
transfer of properties or assets.
"Permitted Holder" means (i) Yucaipa Management L.L.C., a Delaware
limited liability company, The Yucaipa Companies, a California general
partnership, or any entity controlled thereby or any of the partners or members
thereof, (ii) Apollo Advisors, L.P., Lion Advisors, L.P. or any entity
controlled thereby or any of the partners thereof, (iii) Bankers Trust New York
Corporation and The Chase Manhattan Bank, N.A. or any Affiliate thereof, (iv) an
employee benefit plan of the Company or any of its Subsidiaries, or any
participant therein, (v) a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its Subsidiaries or (vi) any
Permitted Transferee of any of the foregoing persons.
"Permitted Indebtedness" means (a) Indebtedness of the Company and its
Subsidiaries (and the Company and each Subsidiary (to the extent it is not an
obligor) may guarantee such Indebtedness) pursuant to (i) the Term Loans in an
aggregate principal amount at any time outstanding not to exceed $330 million,
less the aggregate amount of all principal repayments thereunder pursuant to and
in accordance with the requirements of Section 5.16 subsequent to the Issue
Date, (ii) the revolving credit facility under the Senior Credit Facilities in
an aggregate principal amount at any time outstanding not to exceed $120
million, less all permanent reductions thereunder pursuant to and in accordance
with the requirements of Section 5.16, and (iii) any Indebtedness incurred under
the Senior Credit Facilities pursuant to and in compliance with (A) clause (m)
of this definition or (B) Section 5.12, (b) any Indebtedness of the Company or
any of its Subsidiaries which, in the case of the Company, is owing to any
wholly owned Subsidiary of the Company and which, in the case of any such
Subsidiary, is owing to the Company or any wholly owned Subsidiary of the
Company, (c) Indebtedness incurred by the Company or any Subsidiary in
connection with the purchase or
25
-17-
improvement of property (real or personal) or equipment or other capital
expenditures in the ordinary course of business (including for the purchase of
assets or stock of any retail grocery store or business) or consisting of
Capitalized Lease Obligations, provided that (i) at the time of the incurrence
thereof, such Indebtedness, together with any other Indebtedness incurred during
the most recently completed four fiscal quarter period in reliance upon this
clause (c) does not exceed, in the aggregate, 3% of net sales of the Company and
its Subsidiaries during the most recently completed four fiscal quarter period
on a consolidated basis (calculated on a pro forma basis if the date of
incurrence is prior to the end of the fourth fiscal quarter following the
Acquisition) and (ii) such Indebtedness, together with all then outstanding
Indebtedness incurred in reliance upon this clause (c) does not exceed, in the
aggregate, 3% of the aggregate net sales of the Company and its Subsidiaries
during the most recently completed twelve fiscal quarter period on a
consolidated basis (calculated on a pro forma basis if the date of incurrence is
prior to the end of the twelfth fiscal quarter following the Acquisition); (d)
Indebtedness of the Company incurred under Foreign Exchange Agreements and
Interest Swap Obligations entered into with respect to Indebtedness in a
notional amount not exceeding the aggregate principal amount of Indebtedness and
otherwise permitted to be outstanding pursuant to Section 5.12; (e) guarantees
incurred in the ordinary course of business, by the Company or a Subsidiary, of
Indebtedness of any other person in the aggregate not to exceed $15 million at
any time outstanding; (f) guarantees by the Company or a Subsidiary Guarantor of
Indebtedness incurred by a wholly owned Subsidiary Guarantor so long as the
incurrence of such Indebtedness incurred by such wholly owned Subsidiary
Guarantor is permitted under the terms of this Indenture; (g) Refinancing
Indebtedness; (h) Indebtedness for letters of credit relating to workers'
compensation claims and self-insurance or similar requirements in the ordinary
course of business; (i) other Indebtedness outstanding on the Issue Date and
specified on Schedule II attached hereto; (j) Indebtedness arising from
guarantees of Indebtedness of the Company or any Subsidiary or other agreements
of the Company or a Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or Subsidiary, other
than guarantees of Indebtedness incurred by any person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing such
acquisition; provided that the maximum assumable liability in respect of all
such Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and its Subsidiaries in connection with such disposition; (k)
obligations in respect of performance bonds and completion guarantees provided
by the Company or any Subsidiary
26
-18-
in the ordinary course of business; (l) Indebtedness to BDI and BPI in an
aggregate principal amount not to exceed $350,000 and (m) additional
Indebtedness of the Company and the Subsidiary Guarantors in an amount not to
exceed $75 million in the aggregate at any time outstanding.
"Permitted Investment" by any person means (i) any Related Business
Investment, (ii) Investments in securities not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made pursuant to
Section 5.16 or any other disposition of assets not constituting an Asset Sale
by reason of the $250,000 threshold contained in the definition thereof, (iii)
cash and Cash Equivalents, (iv) Investments existing on the Issue Date, (v)
Investments specifically permitted by and made in accordance with Section 5.11,
(vi) Investments by Subsidiary Guarantors in other Subsidiary Guarantors or the
Company and Investments by the Company in Subsidiary Guarantors in the form of
Indebtedness owed to the Company by a Subsidiary Guarantor and Investments by
Subsidiaries which are not Subsidiary Guarantors in other Subsidiaries which are
not Subsidiary Guarantors and (vii) additional Investments in an aggregate
amount not exceeding $15 million.
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges or claims not yet due or which are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if a reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor; (ii) statutory Liens of
landlords and carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other like Liens arising in the ordinary course of business,
deposits made to obtain the release of such Liens, and with respect to amounts
not yet delinquent for a period of more than 60 days or being contested in good
faith by an appropriate process of law, and for which a reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made; (iii) Liens incurred or pledges or deposits made in the ordinary course of
business to secure obligations under workers' compensation, unemployment
insurance or other types of social security or similar legislation; (iv) Liens
incurred or deposits made to secure the performance of tenders, bids, leases,
statutory obligations, surety and appeal bonds, government contracts,
performance and return of money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money); (v) easements, rights-of-way, zoning or other
restrictions, minor defects or irregularities in title and other similar charges
or encumbrances not interfering in any material respect with the
27
-19-
existing or proposed use by the Company or any of its Subsidiaries incurred in
the ordinary course of business; (vi) Liens upon specific items of inventory or
other goods and proceeds of any person securing such person's obligations in
respect of bankers' acceptances issued or created for the account of such person
to facilitate the purchase, shipment or storage of such inventory or other goods
in the ordinary course of business; (vii) Liens securing reimbursement
obligations with respect to letters of credit which encumber documents and other
property relating to such letters of credit and the products and proceeds
thereof; (viii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of nondelinquent customs duties in connection
with the importation of goods; (ix) judgment and attachment Liens not giving
rise to a Default or Event of Default; (x) leases or subleases granted to others
not interfering in any material respect with the business of the Company or any
Subsidiary; (xi) Liens encumbering customary initial deposits and margin
deposits, and other Liens incurred in the ordinary course of business that are
within the general parameters customary in the industry, in each case securing
Indebtedness under Interest Swap Obligations and Foreign Exchange Agreements and
forward contracts, option futures contracts, futures options or similar
agreements or arrangements designed to protect the Company or any Subsidiary
from fluctuations in the price of commodities; (xii) Liens encumbering deposits
made in the ordinary course of business to secure nondelinquent obligations
arising from statutory, regulatory, contractual or warranty requirements of the
Company or its Subsidiaries for which a reserve or other appropriate provision,
if any, as shall be required by GAAP shall have been made; (xiii) Liens arising
out of consignment or similar arrangements for the sale of goods entered into by
the Company or any Subsidiary in the ordinary course of business in accordance
with past practices; (xiv) any interest or title of a lessor in the property
subject to any lease, whether characterized as capitalized or operating other
than any such interest or title resulting from or arising out of a default by
the Company or any Subsidiary of its obligations under such lease; (xv) Liens
arising from filing UCC financing statements for precautionary purposes in
connection with true leases of personal property that are otherwise permitted
under the applicable indenture and under which the Company or any Subsidiary is
lessee; (xvi) Liens on assets of the Company securing Indebtedness which would
constitute Senior Indebtedness but for the provisions of clause (c) in the third
sentence of the definition of Senior Indebtedness and Liens on assets of a
Subsidiary Guarantor securing Indebtedness which would constitute Guarantor
Senior Indebtedness but for the provisions of clause (c) in the third sentence
of the definition of Guarantor Senior Indebtedness; and (xvii) additional Liens
securing Indebtedness at any one time outstanding not
28
-20-
exceeding the sum of (i) $15 million and (ii) 10% of the aggregate Consolidated
Net Income of the Company earned subsequent to the Issue Date and on or prior to
such time.
"Permitted Payments" means (i) any payment by the Company or any
Subsidiary to Yucaipa or the principals or any Affiliates thereof for
consulting, management, investment banking or similar advisory services pursuant
to that certain Consulting Agreement, dated as of March 22, 1995, among the
Company, Holdings and Yucaipa (as such Consulting Agreement may be amended or
replaced, so long as any amounts paid under any amended or replacement agreement
do not exceed the amounts payable under such Consulting Agreement as in effect
on the Issue Date); (ii) any payment by the Company or any Subsidiary pursuant
to the Tax Sharing Agreement, dated as of March 22, 1995, by and among the
Company, Holdings, DFF, BDI, BPI and certain Subsidiaries, as such Tax Sharing
Agreement may be amended from time to time, so long as the payment thereunder by
the Company and its Subsidiaries shall not exceed the amount of taxes the
Company would be required to pay if it were the filing person for all applicable
taxes, (iii) any payment by the Company or any Subsidiary (a) in connection with
repurchases of outstanding shares of the Company's or Holdings' Common Stock
following the death, disability or termination of employment of management
stockholders, and (b) of amounts required to be paid by Holdings, the Company or
any of its Subsidiaries to participants in employee benefit plans upon
termination of employment by such participants, as provided in the documents
related thereto, in an aggregate amount (for both clauses (a) and (b)) not to
exceed the sum of (x) $5 million in any Fiscal Year (provided that any unused
amounts may be carried over to any subsequent Fiscal Year subject to a maximum
amount of $10 million in any Fiscal Year) and (y) the aggregate amount of cash
proceeds received by Holdings in such Fiscal Year from its sale of shares of
Holdings Common Stock to an employee stock option or other stock plan of any of
the Company, Holdings or DFF or to participants in any such plan or from any
employee of any of the Company, Holdings or DFF during such Fiscal Year, (iv)
dividends or other payments to Holdings and DFF sufficient to enable Holdings
and DFF to perform accounting, legal, corporate reporting and administrative
functions in the ordinary course of business, pay their obligations in respect
of certain State of Illinois qualification fees and charges, or to pay required
fees and expenses in connection with the Acquisition and the registration under
applicable laws and regulations of their debt or equity securities; (v)
dividends by the Company to Holdings and DFF of the Net Cash Proceeds of an
Asset Sale to the extent that (w) neither the Company nor any of the
Subsidiaries is required, or may be required, pursuant to the documents
governing any outstanding Indebtedness of the Company or any of the Subsidiaries
to utilize
29
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such Net Cash Proceeds to repay (or offer to repay) such Indebtedness (or has
complied with all such requirements), (x) such Net Cash Proceeds have not been
utilized to repay outstanding Indebtedness of the Company or any of the
Subsidiaries and (y) Holdings or DFF is required pursuant to the documents
governing any outstanding Indebtedness of Holdings or DFF to utilize such Net
Cash Proceeds to repay (or offer to repay) any such Indebtedness; (vi) dividend
payments to DFF for the sole purpose of allowing DFF to make regularly scheduled
payments of interest in respect of the Parent Intercompany Note; provided that
any such amount distributed is immediately delivered to the Company in payment
of interest owing on the Parent Intercompany Note; and (vii) dividend payments
to DFF on or after the sixth anniversary of the closing date of the Acquisition
for the sole purpose of allowing DFF to make dividend payments to Holdings
immediately upon receipt thereof from the Company for the sole purpose of
allowing Holdings to make dividend payments on the Seller Preferred Stock;
provided that the Fixed Charge Coverage Ratio, after giving effect to such
dividend payments, is greater than 2.5 to 1.0.
"Permitted Transferees" means, with respect to any person, (i) any
Affiliate of such person, (ii) the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any such person, (iii) a
trust, the beneficiaries of which, or a corporation or partnership, the
stockholders or general or limited partners of which, include only such person
or his or her spouse or lineal descendants, in each case to whom such person has
transferred the beneficial ownership of any securities of the Company, (iv) any
investment account whose investment managers and investment advisors consist
solely of such person and/or Permitted Transferees of such person and (v) any
investment fund or investment entity that is a subsidiary of such person or a
Permitted Transferee of such person.
"Person" or "person" means and includes natural persons, corporations,
limited liability companies, limited partnerships, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
"Plan of Liquidation" means, with respect to any person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such person otherwise than as an entirety or
30
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substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such person to holders of
Capital Stock of such person.
"Preferred Stock" means, with respect to any person, Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such person, over shares
of Capital Stock of any other class of such person.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus the premium, if any, on such Indebtedness.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Section 2.14.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act of 1933, as amended,
as interpreted by the Company's chief financial officer or Board of Directors in
consultation with its independent certified public accountants.
"Public Equity Offering" means an underwritten public offering of
Common Stock of the Company or Holdings pursuant to a registration statement
filed with the Commission in accordance with the Securities Act; provided,
however, that in the case of a Public Equity Offering by Holdings, Holdings
contributes to the capital of the Company the portion of the net cash proceeds
of such Public Equity Offering necessary to pay the aggregate redemption price
(plus accrued interest to the redemption date) of the Securities to be redeemed
pursuant to Paragraph 5 of the Securities annexed hereto as Exhibit A and
Exhibit B.
"Qualified Capital Stock" means, with respect to any person, any
Capital Stock of such person that is not Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities;
provided that if any such date is a Legal Holiday, the Record Date shall be the
first day immediately preceding such specified day that is not a Legal Holiday.
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"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities annexed hereto as Exhibit A and Exhibit B.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities annexed hereto as Exhibit A and Exhibit B.
"Reference Date" shall have the meaning provided in Section 5.03.
"Reference Period" shall have the meaning provided in the definition of
"Fixed Charge Coverage Ratio" contained in this Section 1.01.
"Refinancing Indebtedness" means, with respect to any person,
Indebtedness of such person issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used to substantially
concurrently repay, redeem, refund, refinance, discharge or otherwise retire for
value, in whole or in part (collectively, "repay"), or constituting an
amendment, modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of such person existing on the
Issue Date or Indebtedness (other than Permitted Indebtedness, except Permitted
Indebtedness incurred pursuant to clauses (a), (c), (d), (h) and (j) of the
definition thereof) incurred in accordance with this Indenture (a) in a
principal amount (or, if such Refinancing Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon the
acceleration thereof, with an original issue price) not in excess of (without
duplication) (i) the principal amount or the original issue price, as the case
may be, of the Indebtedness so refinanced (or, if such Refinancing Indebtedness
refinances Indebtedness under a revolving credit facility or other agreement
providing a commitment for subsequent borrowings, with a maximum commitment not
to exceed the maximum commitment under such revolving credit facility or other
agreement) plus (ii) unpaid accrued interest on such Indebtedness plus (iii)
premiums, penalties, fees and expenses actually incurred by such person in
connection with the repayment or amendment thereof and (b) with respect to
Refinancing Indebtedness that repays or constitutes an amendment to Subordinated
Indebtedness, such Refinancing Indebtedness (x) shall not have any fixed
mandatory redemption or sinking fund requirement in an amount greater than or at
a time prior to the amounts and times specified in such repaid or amended
Subordinated Indebtedness, except to the extent that any such
32
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requirement applies on a date after the Maturity Date and (y) shall contain
subordination and default provisions no less favorable in any material respect
to Holders than those contained in such repaid or amended Subordinated
Indebtedness.
"Registrar" shall have the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of May 4, 1995, by and among the Company, the Subsidiary Guarantors and
the Initial Purchasers for the benefit of themselves and the Holders as the same
may be amended or modified from time to time in accordance with the terms
thereof.
"Regulation S" means Regulation S under the Securities Act.
"Related Business Investment" means (i) any Investment by a person in
any other person a majority of whose revenues are derived from the operation of
one or more retail grocery stores or supermarkets or any other line of business
engaged in by the Company or any of its Subsidiaries as of the Issue Date; (ii)
any Investment by such person in any cooperative or other supplier, including,
without limitation, any joint venture which is intended to supply any product or
service useful to the business of the Company and its Subsidiaries as it is
conducted as of the Issue Date and as such business may thereafter evolve or
change; and (iii) any capital expenditure or Investment, in each case reasonably
related to the business of the Company and its Subsidiaries as it is conducted
as of the Issue Date and as such business may thereafter evolve or change.
"Representative" means the Administrative Agent under the Senior Credit
Facilities and the indenture trustee or other trustee, agent or representative
for any other Senior Indebtedness; provided that in no event shall United States
Trust Company of New York, in its capacities as Trustee, Registrar, co-Registrar
or Paying Agent, serve as Representative.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in-substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Subsidiary, prior to the scheduled maturity or prior to any scheduled repayment
of principal or sinking fund payment, as the case may be, in respect of
Subordinated Indebtedness.
33
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"Restricted Payment" means any (i) Stock Payment, (ii) Investment
(other than a Permitted Investment) or (iii) Restricted Debt Prepayment.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means the Initial Securities and the Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Seller Preferred Stock" means the 15% Redeemable Exchangeable
Cumulative Preferred Stock, Series A of Holdings, par value $.01 per share, with
an initial liquidation preference of $40 million.
"Senior Credit Facilities" means the Credit Agreement dated as of March
22, 1995, among Holdings, DFF Sub, the Company, the Lenders and Arrangers listed
therein and Bankers Trust Company, as administrative agent together with the
documents related thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on and all other Obligations with respect to any Indebtedness of the
Company, whether outstanding on the Issue Date or thereafter created, incurred
or assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Securities. Without limiting the generality of the foregoing,
"Senior Indebtedness" shall include (x) the principal of, premium, if any, and
interest on all Obligations of every nature of the Company from time to time
owed to the lenders under the Senior Credit Facilities, including, without
limitation, the
34
-26-
Letter of Credit Obligations and principal of and interest on and all fees,
indemnities, and expenses payable under the Senior Credit Facilities and (y)
interest accruing thereon subsequent to the occurrence of any Event of Default
specified in clause (vi) or (vii) of Section 7.01 relating to the Company,
whether or not the claim for such interest is allowed under any applicable
Bankruptcy Law. Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (a) Indebtedness evidenced by the Securities, (b) Indebtedness that is
expressly subordinate or junior in right of payment to any Indebtedness of the
Company, (c) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to the Company (other than Capitalized Lease Obligations), (d)
Indebtedness which is represented by Disqualified Capital Stock, (e) obligations
for goods, materials or services purchased in the ordinary course of business or
obligations consisting of trade payables, (f) Indebtedness of or amounts owed by
the Company for compensation to employees or for services rendered to the
Company, (g) any liability for federal, state, local or other taxes owed or
owing by the Company, (h) Indebtedness of the Company to a Subsidiary of the
Company and (i) that portion of any Indebtedness which is incurred by the
Company in violation of this Indenture.
"Significant Senior Indebtedness" means Senior Indebtedness which, at
the time of determination, is equal to or greater than $25 million in aggregate
principal amount.
"Significant Stockholder" means, with respect to any person, any other
person who is the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of more than 10% of any class of equity securities of such person
that are entitled to vote on a regular basis for the election of directors of
such person.
"Significant Subsidiary" means each subsidiary of the Company that is
either (a) a "significant subsidiary" as defined in Rule 1-02(v) of Regulation
S-X under the Securities Act and the Exchange Act (as such regulation is in
effect on the date hereof) or (b) material to the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole.
"Stock Payment" means, with respect to any person, (a) the declaration
or payment by such person, either in cash or in property, of any dividend on
(except, in the case of the Company, dividends payable solely in Qualified
Capital Stock of the Company), or the making by such person or any of its
subsidiaries of any other distribution in respect of, such person's Qualified
Capital Stock or any warrants, rights or options to purchase or
35
-27-
acquire shares of any class of such Capital Stock (other than exchangeable or
convertible Indebtedness of such person), or (b) the redemption, repurchase,
retirement or other acquisition for value by such person or any of its
subsidiaries, directly or indirectly, of such person's Qualified Capital Stock
(and, in the case of a Subsidiary, Qualified Capital Stock of the Company) or
any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock (other than exchangeable or convertible Indebtedness of such
person), other than, in the case of the Company, through the issuance in
exchange therefor solely of Qualified Capital Stock of the Company; provided,
however, that in the case of a Subsidiary, the term "Stock Payment" shall not
include any such payment with respect to its Capital Stock or warrants, rights
or options to purchase or acquire shares of any class of its Capital Stock that
are owned solely by the Company or a wholly owned Subsidiary.
"Stock Purchase Agreement" means the Stock Purchase Agreement by and
among Holdings, DFF, ▇▇▇▇ L.L.C., ▇▇▇▇ Family L.L.C., and ▇▇▇▇ Developments
L.L.C., dated as of January 17, 1995, as amended, relating to the sale and
purchase of all of the outstanding ▇▇▇▇ Common Stock and ▇▇▇▇ Preferred Stock.
"Subordinated Indebtedness" means, with respect to the Company or any
Subsidiary Guarantor, Indebtedness of such person which is subordinated in right
of payment to the Securities or the Guarantee of such Subsidiary Guarantor, as
the case may be.
"subsidiary" of any person means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly, owned by
such person, by one or more subsidiaries of such person or by such person and
one or more subsidiaries of such person or (ii) a partnership in which such
person or a subsidiary of such person is, at the date of determination, a
general partner of such partnership, but only if such person or its subsidiary
is entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (iii) any other person (other than a corporation or a
partnership) in which such person, a subsidiary of such person or such person
and one or more subsidiaries of such person, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Subsidiary" means any subsidiary of the Company.
36
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"Subsidiary Guarantors" means (i) each of Dominick's Finer Foods, Inc.
of Illinois, an Illinois corporation; ▇▇▇▇ Hazelcrest, Inc., a Delaware
corporation; Jerry's Deep Discount Centers, Inc., an Illinois corporation;
▇▇▇▇'▇ of Bloomingdale, Inc., an Illinois corporation; and Save-It Discount
Foods Corporation, an Illinois corporation, (ii) each of the Company's
Subsidiaries which becomes a guarantor of the Securities in compliance with the
provisions set forth under Section 5.17 and (iii) each of the Company's
Subsidiaries executing a supplemental indenture in which such Subsidiary agrees
to be bound by the terms of the Security and this Indenture.
"Term Loans" means the term loan facilities under the Senior Credit
Facilities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 10.03.
"Transaction Date" shall have the meaning provided in the definition of
"Fixed Charge Coverage Ratio" contained in this Section 1.01.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in
Section 9.02.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Securities" has the meaning provided in Section 2.01.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any
37
-29-
contingency) to vote in the election of members of the board of directors or
other governing body of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the product
obtained by multiplying (i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payment of principal, including
payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment.
"wholly owned Subsidiary" means any corporation, association or other
business entity of which 100% of the total voting power of shares of stock or
other equity interest entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by any Person or one
or more of the other Subsidiaries of that Person or a combination thereof.
"Yucaipa" means The Yucaipa Companies, a California general
partnership, or any successor thereto which is an Affiliate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or his Permitted Transferees and which has been established for the sole purpose
of changing the form of The Yucaipa Companies from that of a partnership to that
of a limited liability company or any other form of entity which is not
materially adverse to the rights of the Holders under this Indenture.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
38
-30-
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, any Subsidiary
Guarantor, or any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Initial Securities, the notation thereon relating to the Guarantee
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit A. The Exchange Securities, the notation thereon relating to the
Guarantee and the Trustee's certificate of authentication shall be substantially
in the form of Exhibit B hereto. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or
39
-31-
usage. The Company and the Trustee shall approve the form of the Securities and
any notation, legend or endorsement on them. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the Securities annexed hereto as
Exhibits A and B and the Guarantee shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global securities in registered
form, substantially in the form set forth in Exhibit A (the "Global Security"),
deposited with the Trustee, as custodian for The Depository Trust Company or its
successors (the "Depository"), duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Securities in
registered form in substantially the form set forth in Exhibit A (the "Offshore
Physical Securities"). Securities offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph shall be issued, and Securities offered and sold in
reliance on Rule 144A may be issued, in the form of permanent certificated
Securities in registered form, in substantially the form set forth in Exhibit A
(the "U.S. Physical Securities"). The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively herein referred to as the
"Physical Securities."
SECTION 2.02. Execution and Authentication.
The Trustee shall authenticate (i) the Initial Securities for original
issue in the aggregate principal amount of up to $200,000,000, and (ii) the
Exchange Securities from time to time for issue only in exchange for a like
principal amount of Initial Securities, in each case upon a written order of the
Company in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated, whether the Securities are to be Initial
Securities or Exchange Securities, and
40
-32-
shall further specify the amount of such Securities to be issued as the Global
Security, Offshore Physical Securities or U.S. Physical Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$200,000,000, except as provided in Section 2.07. Upon the written order of the
Company in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
change of the Company.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. Each Subsidiary Guarantor shall execute the Guarantee in the manner
set forth in Section 11.09.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and
41
-33-
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Company may act as its own Registrar or Paying Agent except that for the
purposes of Articles Three and Nine and Sections 5.15 and 5.16, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent. The
Company initially appoints the Trustee as Registrar and Paying Agent until such
time as the Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that, subject to Article Four and Article Twelve, each Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or interest on, the
Securities (whether such assets have been distributed to it by the Company or
any other obligor on the Securities), and shall notify the Trustee of any
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund, subject to Article
Four and Article Twelve. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that
42
-34-
shall have been delivered by the Company to the Paying Agent, the Paying Agent
shall have no further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
When Securities are presented to the Registrar or a co- Registrar with
a request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
request. No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Sections 2.02, 2.07, 2.10, 3.06, 5.15, 5.16
or 10.05). The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part.
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its
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agent), and that ownership of a beneficial interest in the Global Security shall
be required to be reflected in a book entry.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced. The Company may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company, the Subsidiary
Guarantors or any of their respective Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or a Subsidiary) holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue unless, pursuant
to the provisions of Article Four and Article Twelve, the Paying Agent is unable
to make payments on the Securities to the Holders thereof.
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SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, the Subsidiary Guarantors or any of their respective Affiliates
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that the Trustee actually knows are so owned shall be
disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation. If the Company or any
Subsidiary Guarantor shall acquire any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall, unless the Trustee fixes another record date pursuant to Section 7.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest, to the persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date fixed
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by the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder, with a
copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
SECTION 2.14. Restrictive Legends.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") on the face thereof until May 4, 1998, unless otherwise agreed by the
Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
(AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER, OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED
ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
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AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE OR REGISTRAR), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN
THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY,
IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Each Global Security shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), 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 SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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 VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
SECTION 2.15. Book-Entry Provisions
for Global Security.
(a) The Global Security initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.14.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of the Global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Security may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Security if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the Global Security and a successor depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on
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its books and records the date and a decrease in the principal amount of the
Global Security in an amount equal to the principal amount of the beneficial
interest in the Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Physical
Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.
(e) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in the Global Security pursuant to paragraph (b) or
(c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.16, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth in Section 2.14.
(f) The Holder of the Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 2.16.Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after
May 4, 1998, or (y) (1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons),
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto or (2) in the case of a
transfer to a Non-U.S. Person, the proposed transferor has delivered to
the Registrar a certificate substantially in the form of Exhibit D
hereto; and
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(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in the Global Security, upon
receipt by the Registrar of (x) the certificate, if any,
required by paragraph (i) above and (y) instructions given in
accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security,
upon receipt by the Registrar of instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal
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amount of the Global Security in an amount equal to the
principal amount of the Physical Securities to be transferred,
and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the circumstance contemplated by
paragraph (a)(i)(x) of this Section 2.16 exist or (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee, with a copy to the Credit Agent, of
the Redemption Date and the principal amount of Securities to be redeemed and
whether it wants the Trustee to give notice of redemption to the Holders at
least 45 days (unless a shorter notice shall be satisfactory to the Trustee) but
not more than 60 days before the Redemption Date. In order to
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effect a redemption pursuant to Paragraph 5 of the Securities with the proceeds
of a Public Equity Offering, the Company shall send the redemption notice not
later than 60 days after the consummation of such Public Equity Offering. Any
such notice may be cancelled at any time prior to notice of such redemption
being mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities to Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by lot, pro rata or by any other
method that the Trustee considers fair and appropriate and in such manner as
complies with any applicable legal requirements and, if such Securities are
listed on any securities exchange, by a method that complies with the
requirements of such exchange; provided, however, that if a partial redemption
is made pursuant to Paragraph 5 of the Securities with the proceeds of a Public
Equity Offering, the selection of the Securities or portions thereof for
redemption shall be made by the Trustee only on a pro rata basis, unless such
method is otherwise prohibited.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or integral
multiples thereof) of the principal amount of Securities that have denominations
larger than $1,000. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Securities are to be redeemed at such Holder's
registered address, with a copy to the Credit Agent. In order to effect a
redemption pursuant to Paragraph 5 of the Securities with the proceeds of a
Public Equity Offering, the Company shall send the redemption notice not later
than 60 days after the consummation of such Public Equity Offering. At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
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(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(5) that, unless (a) the Company defaults in making the
redemption payment or (b) such redemption payment is prohibited
pursuant to Article Four or Article Twelve hereof or otherwise,
interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued; and
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price unless
prohibited pursuant to Article Four or Article Twelve or otherwise pursuant to
this Indenture. Securities that are redeemed by the Company or that are
purchased by the Company pursuant to a Net Proceeds Offer as described in
Section 5.16 or pursuant to a Change of Control Offer as described in Section
5.15 or that are otherwise acquired by the Company will be surrendered to the
Trustee for cancellation.
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SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities to be redeemed on that date (other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation). The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for that
purpose upon the written request of the Company, except with respect to monies
owed as obligations to the Trustee pursuant to Article Eight and Article Twelve
hereof.
If the Company complies with the preceding paragraph and payment of the
Securities called for redemption is not prohibited under Article Four or Article
Twelve or otherwise, then, unless the Company defaults in the payment of such
Redemption Price, interest on the Securities or portions thereof to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or not
such Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
SUBORDINATION
SECTION 4.01. Securities Subordinated to Senior Indebtedness.
Anything herein to the contrary notwithstanding, the Company, for
itself and its successors, and each Holder, by his acceptance of Securities,
agrees that the payment of any Obligations under the Securities is subordinated,
to the extent and in the manner provided in this Article Four, to the prior
payment in full in cash or Cash Equivalents of all Senior Indebtedness.
This Article Four shall constitute a continuing offer to all persons
who become holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior Indebtedness and
such holders are made obligees hereunder and any one or more of them may enforce
such provisions.
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SECTION 4.02. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 4.03 shall be applicable, upon (1) the occurrence of
a Payment Default and (2) receipt by the Trustee and the Company from the
Representatives of written notice of such occurrence, then no direct or indirect
payment (other than payments previously made pursuant to Article Nine hereof) or
distribution of any assets of the Company of any kind or character shall be made
by or on behalf of the Company on account of any Obligations under the
Securities, whether pursuant to the terms of the Securities or upon acceleration
or otherwise, or on account of the purchase or redemption or other acquisition
of Securities unless and until such Payment Default shall have been cured or
waived by or on behalf of the holders of the Designated Senior Indebtedness or
Significant Senior Indebtedness, as the case may be, or shall have ceased to
exist or such Senior Indebtedness as to which such Payment Default relates shall
have been discharged or paid in full, after which the Company shall resume
making any and all required payments in respect of the Securities, including any
missed payments.
(b) Unless Section 4.03 shall be applicable, upon (1) the occurrence of
a Non-payment Default and (2) the earlier of (i) receipt by the Trustee and the
Company from the holders of a majority of the outstanding principal amount of
the Designated Senior Indebtedness or their Representative of written notice of
such occurrence stating that such notice is a "Payment Blockage Notice" pursuant
to Section 4.02(b) of this Indenture or (ii) if such Non-payment Default results
from the acceleration of the Securities, the date of such acceleration, no
payment (other than payments previously made pursuant to Article Nine hereof) or
distribution of any assets of the Company of any kind or character shall be made
by the Company on account of any Obligations under the Securities or on account
of the purchase or redemption or other acquisition of Securities for a period
("Payment Blockage Period") commencing on the date of receipt by the Trustee of
the written notice of a Non-payment Default from the Representative or the date
of the acceleration referred to in clause (ii) above, as the case may be, unless
and until the earlier to occur of the following events: (w) 179 days shall have
elapsed since receipt of such notice or the date of the acceleration of the
Securities, as the case may be (provided such Designated Senior Indebtedness
shall theretofore not have been accelerated), (x) such Non-payment Default shall
have been cured or waived or shall have ceased to exist, (y) such Designated
Senior Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents or (z) such Payment Blockage Period shall have been terminated by
written
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notice to the Company or the Trustee from the Representative initiating such
Payment Blockage Period or the holders of at least a majority of the outstanding
principal amount of such issue of Designated Senior Indebtedness initiating such
Payment Blockage Period, after which, in the case of clause (w), (x), (y) or
(z), the Company shall resume making any and all required payments in respect of
the Securities, including any missed payments. Notwithstanding any other
provision of this Indenture, only one Payment Blockage Period may be commenced
within any consecutive 365-day period and no Non-payment Default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period shall be, or shall be made, the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days. In no
event shall a Payment Blockage Period extend beyond 179 days from the date of
the receipt of the written notice by the Trustee of a Non-payment Default or the
date of the acceleration of the Securities, as the case may be.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 4.02, then and in such event such payment
shall be segregated from other funds and held in trust by the Trustee or such
Holder or Paying Agent for the benefit of, and shall immediately be paid over to
the holders of Senior Indebtedness or to the Representatives or as a court of
competent jurisdiction shall direct.
SECTION 4.03. Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company.
Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, upon any dissolution,
winding-up, total or partial liquidation or reorganization of the Company
(including, without limitation, in bankruptcy, insolvency or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company and whether voluntary or
involuntary):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full in cash or Cash Equivalents of all
amounts payable under Senior Indebtedness (including, with respect to
Designated Senior Indebtedness or
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Significant Senior Indebtedness, any interest accruing after
the commencement of any such proceeding at the rate specified
in the applicable Designated Senior Indebtedness or
Significant Senior Indebtedness whether or not interest is an
allowed claim enforceable against the Company in any such
proceeding) before the Holders will be entitled to receive any
payment with respect to the Securities, and until all
Obligations with respect to the Senior Indebtedness are paid
in full in cash or Cash Equivalents, any distribution to which
the Holders would be entitled shall be made to the holders of
Senior Indebtedness; provided, however, that no payment on any
Guarantee shall constitute payment on behalf of the Company
for purposes of this Section 4.03(a);
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be
entitled except for the provisions of this Article Four, shall be paid
by the liquidating trustee or agent or other person making such a
payment or distribution, directly to the holders of Senior Indebtedness
or their Representatives, ratably according to the respective amounts
of Senior Indebtedness remaining unpaid held or represented by each,
until all Senior Indebtedness remaining unpaid shall have been paid in
full in cash or Cash Equivalents after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders or any Paying Agent on account of any
Obligations under the Securities before all Senior Indebtedness is paid
in full in cash or Cash Equivalents, such payment or distribution
(subject to the provisions of Sections 4.06 and 4.07) shall be
received, segregated from other funds, and held in trust by the Trustee
or such Holder or Paying Agent for the benefit of, and shall
immediately be paid over to, the holders of Senior Indebtedness or
their Representatives, ratably according to the respective amounts of
Senior Indebtedness held or represented by each, until all Senior
Indebtedness remaining unpaid shall have been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another person or the liquidation or
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dissolution of the Company following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to another person upon the
terms and conditions set forth in Article Six hereof shall not be deemed a
dissolution, winding-up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Article Four if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in such Article Six.
The Company shall give prompt notice to the Trustee prior to any
dissolution, winding-up, total or partial liquidation or reorganization
(including, without limitation, in bankruptcy, insolvency, or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of the Company's assets and liabilities).
SECTION 4.04. Securityholders to Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Indebtedness, the Holders of Securities shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full in cash, and for the purpose of
such subrogation no payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article Four, which otherwise would have been made to the
Holders, shall, as between the Company and the Holders, be deemed to be payment
by the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article Four are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Four shall have been
applied, pursuant to the provisions of this Article Four, to the payment of all
amounts payable under the Senior Indebtedness, then the Holders shall be
entitled to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or
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in respect of the Senior Indebtedness in full in cash or Cash Equivalents.
SECTION 4.05. Obligations of the Company Unconditional.
Nothing contained in this Article Four or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company and
the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Four, of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any payment or
distribution of assets or securities of the Company referred to in this Article
Four, the Trustee, subject to the provisions of Sections 8.01 and 8.02, and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other person making any
payment or distribution to the Trustee or to the Holders or a certificate of the
Representatives for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Four. Nothing in this Section 4.05 shall apply to the
claims of, or payments to, the Trustee under or pursuant to Section 8.07.
SECTION 4.06. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until the Trustee or any Paying Agent shall have received
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any Representative therefor and, prior to the receipt of
any such notice, the Trustee shall be entitled in all respects conclusively to
assume that no such fact exists.
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SECTION 4.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 9.02 shall be for
the sole benefit of Securityholders and, to the extent allocated for the payment
of Securities, shall not be subject to the subordination provisions of this
Article Four. Otherwise, any deposit of assets or securities by or on behalf of
the Company with the Trustee or any Paying Agent (whether or not in trust) for
the payment of principal of or interest on any Securities shall be subject to
the provisions of this Article Four; provided that if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including, without limitation,
the payment of either principal of or interest on any Security) the Trustee or
such Paying Agent shall not have received with respect to such assets the notice
provided for in Section 4.06, then the Trustee or such Paying Agent shall have
full power and authority to receive such assets and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary received by it on or after such date; provided, further, that no
payment on any Guarantee shall constitute payment on behalf of the Company for
purposes of this Section 4.07. The foregoing shall not apply to the Paying Agent
if the Company or any Subsidiary or Affiliate of the Company is acting as Paying
Agent. Nothing contained in this Section 4.07 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by this
Article Four.
SECTION 4.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of subsection (a) of this Section
4.08, the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Four or the obligations hereunder of the Holders of the Securities
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to the holders of Senior Indebtedness, do any one or more of the following: (1)
change the manner, place, terms or time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Company and any other person.
SECTION 4.09. Securityholders Authorize Trustee to
Effectuate Subordination of Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination provisions contained in
this Article Four, and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company) tending towards
liquidation or reorganization of the business and assets of the Company, the
immediate filing of a claim for the unpaid balance of its or his Securities in
the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then any of the holders of the Senior Indebtedness or
their Representatives is hereby authorized to file an appropriate claim for and
on behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
Representative to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 4.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Four in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be
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construed to deprive the Trustee of any of its rights as such holder.
SECTION 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Four shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 7.01.
Nothing contained in this Article Four shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Four of the holders, from time to time, of Senior Indebtedness.
SECTION 4.12. No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or gross negligence) if it shall pay over
or deliver to the Holders of Securities or the Company or any other person,
money or assets in compliance with the terms of this Indenture. Nothing in this
Section 4.12 shall affect the obligation of any person other than the Trustee to
hold such payment for the benefit of, and to pay such payment over to, the
holders of Senior Indebtedness or their Representative.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on that date U.S. Legal Tender designated for and sufficient
to pay the installment; provided, however, that U.S. Legal Tender held by the
Trustee for the benefit of holders of Senior
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Indebtedness or Guarantor Senior Indebtedness or the payment of which to the
Holders is prohibited pursuant to the provisions of Article Four or Article
Twelve or otherwise shall not be considered to be designated for the payment of
any installment of principal or interest on the Securities within the meaning of
this Section 5.01.
The Company shall pay interest on overdue principal at the rate borne
by the Securities and it shall pay interest on overdue installments of interest
at the same rate, to the extent lawful.
SECTION 5.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03. The Company shall give
prior notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 13.02.
SECTION 5.03. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment if, at the
time of such proposed Restricted Payment, or after giving effect thereto, (a) a
Default or an Event of Default shall have occurred and be continuing, (b) the
Company could not incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 5.12 or (c) the aggregate amount expended for
all Restricted Payments, including such proposed Restricted Payment (the amount
of any Restricted Payment, if other than cash, to be the fair market value
thereof at the date of payment, as determined in good faith by the Board of
Directors of the Company), subsequent to the Issue Date, shall exceed the sum of
(i) 50% of the aggregate Consolidated Net Income (or if such Consolidated Net
Income is a loss, minus 100% of such loss) of the Company earned subsequent to
the Issue Date and on or prior to the date of the proposed Restricted Payment
(the "Reference Date"), plus (ii) 100% of the aggregate Net Proceeds received by
the Company from any person (other than a Subsidiary of the Company) from the
issuance and sale (including upon exchange or conversion for other securities of
the Company) subsequent to the Issue Date and on or prior to the Reference Date
of Qualified Capital Stock (excluding (A) Qualified Capital Stock paid as a
dividend on any Capital Stock or as interest on any Indebtedness and (B) any Net
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Proceeds from issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Subsidiary, until and to the extent such
borrowing is repaid), plus (iii) 100% of the aggregate net cash proceeds
received by the Company as capital contributions to the Company after the Issue
Date, plus (iv) $10 million.
Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and be continuing as a consequence thereof, the provisions set
forth in the immediately preceding paragraph will not prevent (1) the payment of
any dividend within 60 days after the date of its declaration if the dividend
would have been permitted on the date of declaration, (2) the acquisition of any
shares of Capital Stock of the Company or the repurchase, redemption or other
repayment of any Subordinated Indebtedness in exchange for or solely out of the
proceeds of the substantially concurrent sale (other than to a Subsidiary) of
shares of Qualified Capital Stock of the Company, (3) the repurchase, redemption
or other repayment of any Subordinated Indebtedness in exchange for or solely
out of the proceeds of the substantially concurrent sale (other than to a
Subsidiary) of Subordinated Indebtedness of the Company with a Weighted Average
Life to Maturity equal to or greater than the then remaining Weighted Average
Life to Maturity of the Subordinated Indebtedness repurchased, redeemed or
repaid, and (4) Permitted Payments; provided, however, that the declaration of
each dividend paid in accordance with clause (1) above, each acquisition,
repurchase, redemption or other repayment made in accordance with, or of the
type set forth in, clause (2) above, and each payment described in clause (iii),
(v) or (vii) of the definition of the term "Permitted Payments" shall each be
counted for purposes of computing amounts expended pursuant to subclause (c) in
the immediately preceding paragraph, and no amounts expended pursuant to clause
(3) above or pursuant to clause (i), (ii), (iv) or (vi) of the definition of the
term "Permitted Payments" shall be so counted.
Prior to making any Restricted Payment under the first paragraph of
this Section 5.03, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the computation by which the amount available for
Restricted Payments pursuant to such paragraph was determined. The Trustee shall
have no duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
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SECTION 5.04. Corporate Existence.
Except as otherwise permitted by Article Six, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate or other existence of each of
its Subsidiaries in accordance with the respective organizational documents of
each such Subsidiary and the rights (charter and statutory) and franchises of
the Company and each such Subsidiary; provided, however, that the Company shall
not be required to preserve, with respect to itself, any right or franchise, and
with respect to any of its Subsidiaries, any such existence, right or franchise,
if the Board of Directors of the Company or such Subsidiary, as the case may be,
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any such Subsidiary.
SECTION 5.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by GAAP or (b) the failure to make such payment or effect
such discharge (together with all other such failures) would not have a material
adverse effect on the financial condition or results or operations of the
Company and its Subsidiaries taken as a whole.
SECTION 5.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted
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at all times unless the failure to so maintain such properties (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its Subsidiaries
taken as a whole; provided, however, that nothing in this Section 5.06 shall
prevent the Company or any Subsidiary from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is either (i) in the ordinary course of business,
(ii) in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, or of the senior officers of the Company or such
Subsidiary, as the case may be, desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, or (iii) is otherwise permitted
by this Indenture.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices of the Company or
the applicable Subsidiary or (ii) customary, in the reasonable, good faith
opinion of the Company, for corporations similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole.
SECTION 5.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days after the
end of the Company's fiscal year an Officers' Certificate stating that a review
of its activities and the activities of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company during
such preceding fiscal year has kept, observed, performed and fulfilled each and
every such covenant and no event of default in respect of any payment obligation
under the Senior Credit Facilities, Default or Event of Default occurred during
such year or, if such signers do know of such an event of default, Default or
Event of Default, the
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certificate shall describe the event of default, Default or Event of Default and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the Company shall deliver to
the Trustee within 120 days after the end of each fiscal year a written
statement by the Company's independent certified public accountants stating (A)
that their audit examination has included a review of the terms of this
Indenture and the Securities as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default has come to
their attention and if such a Default has come to their attention, specifying
the nature and period of existence thereof.
(c) The Company shall deliver to the Trustee, forthwith upon becoming
aware, and in any event within 5 days after the occurrence, of (i) any Default
or Event of Default in the performance of any covenant, agreement or condition
contained in this Indenture; (ii) any event of default in respect of any payment
obligation under the Senior Credit Facilities or any event of default under any
other bond, debenture, note, or other evidence of Indebtedness of the Company or
any of its Subsidiaries, or under any mortgage, indenture or other instrument if
such event of default related to Indebtedness at any time in an aggregate
principal amount exceeding $20 million, an Officers' Certificate specifying with
particularity such event.
SECTION 5.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
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SECTION 5.09. SEC Reports.
The Company shall deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
report and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall file with the Commission, to the extent permitted by law or regulation,
and provide the Trustee and Holders of Securities with such quarterly and annual
reports and such information, documents and other reports specified in Section
13 and 15(d) of the Exchange Act. The Company shall also comply with the other
provisions of TIA Section 314(a).
SECTION 5.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not cause or permit any of its
Subsidiaries to, (i) sell, lease, transfer or otherwise dispose of any of its
properties or assets, or issue securities (other than equity securities which do
not constitute Disqualified Capital Stock), (ii) purchase any property, assets
or securities from, (iii) make any Investment in, or (iv) enter into or suffer
to exist any contract or agreement with or for the benefit of, an Affiliate or
Significant Stockholder (or any Affiliate of such Significant Stockholder) of
the Company or any Subsidiary (an "Affiliate Transaction"), other than (x)
Affiliate Transactions permitted under Section 5.11(b) and (y) Affiliate
Transactions in the ordinary course of business that are fair to the Company or
such Subsidiary, as the case may be, and on terms at least as
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favorable as might reasonably have been obtainable at such time from an
unaffiliated party; provided that (A) with respect to Affiliate Transactions
involving aggregate payments in excess of $1 million and less than $5 million,
the Company or such Subsidiary, as the case may be, shall have delivered an
Officers' Certificate to the Trustee certifying that such transaction or series
of transactions complies with clause (y) above (other than the requirement set
forth in such clause (y) that such Affiliate Transaction be in the ordinary
course of business), (B) with respect to Affiliate Transactions involving
aggregate payments in excess of $5 million and less than $10 million, the
Company or such Subsidiary, as the case may be, shall have delivered an
Officers' Certificate to the Trustee certifying that such Affiliate Transaction
complies with clause (y) above and (other than the requirement set forth in such
clause (y) that such Affiliate Transaction be in the ordinary course of
business), that such Affiliate Transaction has received the approval of a
majority of the disinterested members of the Board of Directors of the Company
or the Subsidiary, as the case may be, or in the absence of any such approval by
the disinterested members of the Board of Directors of the Company or the
Subsidiary, as the case may be, that an Independent Financial Advisor has
reasonably and in good faith determined that the financial terms of such
Affiliate Transaction are fair to the Company or such Subsidiary, as the case
may be, or that the terms of such Affiliate Transaction are at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party and that such Independent Financial Advisor has provided
written confirmation of such determination to the Board of Directors of the
Company or such Subsidiary, as the case may be, and (C) with respect to
Affiliate Transactions involving aggregate payments in excess of $10 million,
the Company or such Subsidiary, as the case may be, shall have delivered to the
Trustee a written opinion from an Independent Financial Advisor to the effect
that the financial terms of such Affiliate Transaction are fair to the Company
or such Subsidiary, as the case may be, or that the terms of such Affiliate
Transaction are at least as favorable as those that might reasonably have been
obtained at the time from an unaffiliated party.
(b) The provisions of Section 5.11(a) shall not apply to (i) any
Permitted Payment, (ii) any Restricted Payment that is made in compliance with
the provisions of Section 5.03, (iii) reasonable and customary fees and
compensation paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary, as determined by the
Board of Directors of the Company or any Subsidiary or the senior management
thereof in good faith, (iv) transactions exclusively between or among the
Company and any of its wholly owned Subsidiaries or exclusively
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between or among such wholly owned Subsidiaries, provided such transactions are
not otherwise prohibited by this Indenture, (v) any agreement as in effect as of
the Issue Date or any agreements similar thereto or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
so long as any such amendment is not disadvantageous to the Securityholders in
any material respect, (vi) the existence of, or the performance by the Company
or any of its Subsidiaries of its obligations under the terms of, any
stockholder agreement (including any registration rights agreement or purchase
agreement related thereto) to which it (or Holdings) is a party as of the Issue
Date and any similar agreements which it (or Holdings) may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any Subsidiaries of obligations under any future amendment to, any
such existing agreement or under any similar agreement entered into after the
Issue Date shall only be permitted by this clause (vi) to the extent that the
terms of any such amendment or new agreement are not otherwise disadvantageous
to the Securityholders in any material respect, (vii) transactions permitted by,
and complying with, the provisions of Section 6.01 and (viii) transactions with
suppliers or other purchases or sales of goods or services, in each case, in the
ordinary course of business (including, without limitation, pursuant to joint
venture agreements) and otherwise in compliance with the terms of this Indenture
which are fair to the Company, in the reasonable determination of the Board of
Directors of the Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party.
SECTION 5.12. Limitation on Incurrences of
Additional Indebtedness.
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, incur, assume, guarantee, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for the payment of (collectively "incur"), any Indebtedness other
than Permitted Indebtedness; provided, however, that if no Default with respect
to payment of principal of, or interest on, the Securities or Event of Default
shall have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any Subsidiary Guarantor may
incur Indebtedness if immediately before and immediately after giving effect to
the incurrence of such Indebtedness the Fixed Charge Coverage Ratio of the
Company would be greater than 2.0 to 1.0; provided further a Subsidiary may
incur Acquired Indebtedness to the extent such
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Indebtedness could have been incurred by the Company pursuant to the immediately
preceding proviso.
SECTION 5.13. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not cause or permit any Subsidiary to,
directly or indirectly, create or suffer to exist, or allow to become effective
any consensual Payment Restriction with respect to any of its Subsidiaries,
except for (a) any such restrictions contained in (i) the Senior Credit
Facilities in effect on the Issue Date, as any such payment restriction may
apply to any present or future Subsidiary, (ii) this Indenture and any agreement
in effect at or entered into on the Issue Date, (iii) Indebtedness of a person
existing at the time such person becomes a Subsidiary (provided that (x) such
Indebtedness is not incurred in connection with, or in contemplation of, such
person becoming a Subsidiary, (y) such restriction is not applicable to any
person, or the properties or assets or any person, other than the person so
acquired and (z) such Indebtedness is otherwise permitted to be incurred
pursuant to Section 5.12), (iv) secured Indebtedness otherwise permitted to be
incurred pursuant to Sections 5.12 and 5.14 that limit the right of the debtor
to dispose of the assets securing such Indebtedness; (b) customary
non-assignment provisions restricting subletting or assignment of any lease or
other agreement entered into by a Subsidiary; (c) customary net worth provisions
contained in leases and other agreements entered into by a Subsidiary in the
ordinary course of business; (d) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary; (e) customary provisions in joint venture agreements and other
similar agreements; (f) restrictions contained in Indebtedness incurred to
refinance, refund, extend or renew Indebtedness referred to in clause (a) above;
provided that the restrictions contained therein are not materially more
restrictive taken as a whole than those provided for in such Indebtedness being
refinanced, refunded, extended or renewed and (g) Payment Restrictions contained
in any other Indebtedness permitted to be incurred subsequent to the Issue Date
pursuant to the provisions of Section 5.12; provided that any such Payment
Restrictions are ordinary and customary with respect to the type of Indebtedness
being incurred (under the relevant circumstances) and, in any event, no more
restrictive than the most restrictive Payment Restrictions in effect on the
Issue Date.
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SECTION 5.14. Limitation on Liens.
The Company shall not, and shall not cause or permit any Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Liens upon
any of their respective assets unless the Securities are equally and ratably
secured by the Liens covering such assets, except for (i) Liens on assets of the
Company securing Senior Indebtedness and Liens on assets of a Subsidiary
Guarantor which, at the time of incurrence, secure Guarantor Senior
Indebtedness; (ii) existing and future Liens securing Indebtedness and other
obligations of the Company and its Subsidiaries under the Senior Credit
Facilities or any refinancing or replacement thereof in whole or in part
permitted under this Indenture, (iii) Permitted Liens, (iv) Liens securing
Acquired Indebtedness, provided that such Liens (x) are not incurred in
connection with, or in contemplation of, the acquisition of the property or
assets so acquired and (y) do not extend to or cover any property or assets of
the Company or any Subsidiary other than the property or assets so acquired, (v)
Liens to secure Capitalized Lease Obligations and certain other Indebtedness
that is otherwise permitted under this Indenture, provided that (A) any such
Lien is created solely for the purpose of securing such other Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and other direct costs
of, and other direct expenses paid or charged in connection with, the purchase
(whether through stock or asset purchase, merger or otherwise) or construction
or improvement of the property subject thereto (whether real or personal,
including fixtures and other equipment)), (B) the principal amount of the
Indebtedness secured by such Lien does not exceed 100% of such costs and (C)
such Lien does not extend to or cover any other property other than such item of
property and any improvements on such item, (vi) Liens existing on the Issue
Date, (vii) Liens in favor of the Trustee under this Indenture and any
substantially equivalent Lien granted to any trustee or similar institution
under any indenture for Indebtedness permitted by the terms of this Indenture,
and (viii) any replacement, extension or renewal, in whole or in part, of any
Lien described in the foregoing clauses including in connection with any
refinancing of the Indebtedness, in whole or in part, secured by any such Lien,
provided that to the extent any such clause limits the amount secured or the
assets subject to such Liens, no extension or renewal shall increase the amount
or the assets subject to such Liens, except to the extent that the Liens
associated with such additional assets are otherwise permitted hereunder.
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SECTION 5.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to repurchase such Holder's Securities pursuant
to the offer described in paragraph (b), below (the "Change of Control Offer"),
at a purchase price equal to 101% of the principal amount thereof plus accrued
interest to the date of repurchase. Prior to the mailing of the notice of a
Change of Control Offer provided for in paragraph (b) below, within 30 days
following any Change of Control the Company shall either (a) repay in full and
terminate all commitments under Indebtedness under the Senior Credit Facilities
to the extent the terms thereof require repayment upon a Change of Control (or
offer to repay in full and terminate all commitments under all such Indebtedness
under the Senior Credit Facilities and repay the Indebtedness owed to each
lender which has accepted such offer), or (b) obtain the requisite consent under
the Senior Credit Facilities, the terms of which require repayment upon a Change
of Control, to permit the repurchase of the Securities as provided for in this
Section 5.15. The Company shall first comply with the covenant in the
immediately preceding sentence before it shall be required to repurchase
Securities pursuant to this Section 5.15.
(b) Within 30 days following the date upon which the Change of Control
occurred (the "Change of Control Date"), the Company shall send, by first class
mail, a notice to each Holder of Securities, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Change of Control Offer. The
Company shall give notice of an event giving rise to a Change of Control on the
same date and in the same manner to all Holders of Securities. Such notice shall
state:
(1) that the Change of Control Offer is being made pursuant to
this Section 5.15 and that all Securities tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30 days
nor later than 40 days from the date such notice is mailed, other than
as may be required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
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(4) that, unless (i) the Company defaults in making payment
therefor or (ii) such payment is prohibited pursuant to Article Four,
any Security accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than two Business Days prior to
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have
such Security purchased;
(7) that Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the
unpurchased portions of the Securities surrendered; provided that each
Security purchased and each Security issued shall be in an original
principal amount of $1,000 or integral multiples thereof;
(8) that each Change of Contol Offer is required to remain
open for at least 20 business days or such longer period as may be
required by law; and
(9) the circumstances and relevant facts regarding such Change
of Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price (and the Trustee shall
promptly authenticate and mail to such Holders new Securities equal in
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principal amount to any unpurchased portion of the Securities surrendered)
unless such payment is prohibited pursuant to Article Four or otherwise. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date. For purposes of
this Section 5.15, the Trustee shall act as the Paying Agent.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict with the
provisions under this Section 5.15, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 5.15 by virtue thereof.
SECTION 5.16. Limitation on Asset Sales.
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, make any Asset Sale, unless (a) the Company or the applicable
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the fair market value of the assets sold and (b) upon consummation of an
Asset Sale, the Company will within 365 days of the receipt of the proceeds
therefrom, either: (i) apply or cause its Subsidiary to apply the Net Cash
Proceeds of any Asset Sale to (1) a Related Business Investment, (2) an
investment in properties and assets that replace the properties and assets that
are the subject of such Asset Sale or (3) an investment in properties and assets
that will be used in the business of the Company and its Subsidiaries existing
on the Issue Date or in a business reasonably related thereto; (ii) in the case
of a sale of a store or stores, deem such Net Cash Proceeds to have been applied
to the extent of any capital expenditures made to acquire or construct a
replacement store in the general vicinity of the store sold within 365 days
preceding the date of the Asset Sale; (iii) apply or cause to be applied such
Net Cash Proceeds to the permanent repayment of Pari Passu Indebtedness or
Senior Indebtedness; provided, however, that the repayment of any revolving loan
(under the Senior Credit Facilities or otherwise) shall result in a permanent
reduction in the commitment thereunder; (iv) use such Net Cash Proceeds to
secure Letter of Credit Obligations to the extent related letters of credit have
not been drawn upon or returned undrawn; or (v) after such time as the
accumulated Net Cash Proceeds equals or exceeds $10 million, apply or cause to
be applied such Net Cash Proceeds to the purchase of Securities tendered to the
Company for purchase at a price equal to 100% of the principal amount thereof
plus accrued interest thereon
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to the date of purchase pursuant to an offer to purchase made by the Company as
set forth below (a "Net Proceeds Offer"); provided, however, that the Company
shall have the right to exclude from the foregoing provisions Asset Sales
subsequent to the Issue Date, the proceeds of which are derived from (x) the
sale and substantially concurrent lease-back of a supermarket and/or related
assets or equipment which is acquired or constructed by the Company or a
Subsidiary subsequent to the Issue Date; provided, however, that any such sale
and substantially concurrent lease-back occurs within 270 days following such
acquisition or the completion of such construction, as the case may be or (y)
from the sale or sale and substantially concurrent lease-back of certain
specified property as provided on Schedule I attached hereto. Pending the
utilization of any Net Cash Proceeds in the manner (and within the time period)
described above, the Company may use any such Net Cash Proceeds to repay
revolving loans under the Senior Credit Facilities without a permanent reduction
of the commitment thereunder.
Notice of a Net Proceeds Offer pursuant to this Section 5.16 will be
mailed to record Holders of Securities as shown on the register of Holders not
less than 325 days nor more than 365 days after the relevant Asset Sale, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Net
Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 5.16 and that all Securities tendered will be accepted for
payment, provided, however, that if the aggregate principal amount of
Securities tendered in a Net Proceeds Offer plus accrued interest at
the expiration of such offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Securities to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate
by the Company so that only Securities in denominations of $1,000 or
multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30 days
nor later than 40 days from the date such notice is mailed, other than
as may be required by law) (the "Proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment
therefor or (ii) such payment is prohibited pursuant
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to Article Four or otherwise, any Security accepted for payment
pursuant to the Net Proceeds Offer shall cease to accrue interest after
the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender
the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to
the Paying Agent at the address specified in the notice prior
to the close of business on the Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than two Business Days prior to
the Proceeds Purchase Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Securities the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Security
purchased;
(7) that Holders whose Securities were purchased only in part
will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an original
principal amount of $1,000 or integral multiples thereof; and
(8) that each Net Proceeds Offer is required to remain open
for at least 20 Business Days or such longer period as may be required
by law.
On or before the Proceeds Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Net Proceeds
Offer which are to be purchased in accordance with item (b)(1) above, (ii)
deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase
price of all Securities to be purchased and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price (and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered) unless such payment is
prohibited pursuant to Article Four hereof or otherwise. The Company will
publicly announce the results of the Net Proceeds Offer on or as soon as
practicable after the
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Proceeds Purchase Date. For purposes of this Section 5.16, the Trustee shall act
as the Paying Agent.
Any amounts remaining after the purchase of Securities pursuant to a
Net Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities pursuant to a Net Proceeds Offer. To the extent the provisions of
any securities laws or regulations conflict with the provisions under this
Section 5.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 5.16 by virtue thereof.
SECTION 5.17. Guarantees of Certain Indebtedness.
The Company shall not cause or permit any of its Subsidiaries to (a)
incur, guarantee or secure through the granting of Liens the payment of any
Indebtedness under the Term Loans or refinancings thereof or (b) pledge any
intercompany notes representing obligations of any of its Subsidiaries, to
secure the payment of any Indebtedness under the Term Loans or refinancings
thereof, in each case unless such Subsidiary, the Company and the Trustee
execute and deliver a supplemental indenture evidencing such Subsidiary's
Guarantee.
SECTION 5.18. Limitation on Preferred Stock of Subsidiaries.
The Company shall not permit any of its Subsidiaries to issue Preferred
Stock (other than to the Company or to a wholly owned Subsidiary) or permit any
person (other than the Company or a wholly owned Subsidiary) to own any
Preferred Stock of any Subsidiary.
SECTION 5.19. Limitation on Other Senior Subordinated
Indebtedness.
Neither the Company nor any Subsidiary Guarantor shall, directly or
indirectly, incur any Indebtedness (including Acquired Indebtedness) that is
subordinate in right of payment to any Indebtedness of the Company or such
Subsidiary Guarantor, as the case may be, unless such Indebtedness is either (a)
pari passu in right of payment with the Securities or the Guarantee of such
Subsidiary Guarantor, as the case may be, or (b) subordinate in right of payment
to the Securities or the Guarantee of such
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Subsidiary Guarantor, as the case may be, in the same manner and at least to the
same extent as the Securities are subordinate to Senior Indebtedness or as such
Guarantee is subordinated to Senior Guarantor Indebtedness of such Subsidiary
Guarantor, as the case may be.
ARTICLE SIX
SUCCESSOR CORPORATION
SECTION 6.01. Limitations on Mergers and Certain Other
Transactions.
(a) The Company shall not in a single transaction or through a series
of related transactions, (i) consolidate with or merge with or into any other
person, or transfer (by lease, assignment, sale or otherwise) all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to another person or group of affiliated persons or (ii) adopt a
Plan of Liquidation, unless, in either case:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety or substantially as
an entirety are transferred (or, in the case of a Plan of Liquidation,
any person to which assets are transferred) (the Company or such other
person being hereinafter referred to as the "Surviving Person") shall
be a corporation organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplement, all the obligations of
the Company under the Securities and this Indenture;
(2) immediately after and giving effect to such transaction
and the assumption contemplated by clause (1) above and the incurrence
or anticipated incurrence of any Indebtedness to be incurred in
connection therewith, (A) the Surviving Person shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) the
Surviving Person could incur at least $1 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 5.12;
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(3) immediately before and immediately after and giving effect
to such transaction and the assumption of the obligations as set forth
in clause (1) above and the incurrence or anticipated incurrence of any
Indebtedness to be incurred in connection therewith, no Default or
Event of Default shall have occurred and be continuing; and
(4) each Subsidiary Guarantor, unless it is the other party to
the transaction, shall have by supplemental indenture confirmed that
its Guarantee of the obligations of the Company under the Securities
and this Indenture shall apply, without alteration or amendment as such
Guarantee applies on the date it was granted under this Indenture to
the obligations of the Company under this Indenture and the Securities
to the obligations of the Company or such Person as the case may be,
under this Indenture and the Securities, after consummation of such
transaction.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more direct or indirect Subsidiaries, the Capital Stock of which constitutes all
or substantially all of the properties and assets of the Company shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 6.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any adoption of a Plan of
Liquidation by the Company in accordance with Section 6.01, the successor person
formed by such consolidation or into which the Company is merged or to which
such transfer is made (or, in the case of a Plan of Liquidation, to which assets
are transferred) shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor person had been named as the Company herein; provided,
however, that solely for purposes of computing amounts described in subclause
(c) of the first paragraph of Section 5.03, any such successor person shall only
be deemed to have succeeded to and be substituted for the Company with respect
to periods subsequent to the effective time of such merger, consolidation or
transfer of assets.
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ARTICLE SEVEN
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default.
An "Event of Default" occurs if:
(i) the Company defaults in the payment of interest on any
Securities when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment shall be
prohibited by the provisions of Article Four hereof;
(ii) the Company defaults in the payment of the principal of,
or premium, if any, on the Securities when due whether at maturity,
upon acceleration, redemption, required repurchase or otherwise,
whether or not such payment shall be prohibited by the provisions of
Article Four hereof;
(iii) the Company fails to comply with any of its agreements
contained in the Securities or this Indenture (other than a default
specified in clause (i) or (ii) above), if such failure continues for
the period and after the notice specified below;
(iv) there shall be a default under any Indebtedness of the
Company or any of its Subsidiaries, whether such Indebtedness now
exists or shall hereafter be created, if both (A) such default either
(1) results from the failure to pay any such Indebtedness at its stated
final maturity or (2) relates to an obligation other than the
obligation to pay such Indebtedness at its stated final maturity and
results in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated final maturity and (B)
the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity or the maturity of which has been so
accelerated, aggregates $20 million or more at any one time
outstanding;
(v) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $20 million, either individually or in
the aggregate, shall be entered against the Company or any Significant
Subsidiary or any of their respective properties and shall not be
discharged
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for a period of 60 days after such judgment becomes final and
nonappealable and during which a stay of enforcement of such judgment,
order or decree shall not be in effect;
(vi) either the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law: (a) commences
a voluntary case or proceeding; (b) consents to the entry of a
Bankruptcy Order for relief against it in an involuntary case or
proceeding or the commencement of any case or proceeding against it;
(c) consents to the appointment of a custodian of it or for
substantially all of its property; or (d) makes a general assignment
for the benefit of its creditors;
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the
Company or any Significant Subsidiary, in an involuntary case or
proceeding; (b) appoints a custodian of the Company or any Significant
Subsidiary, or for all or any substantial part of their respective
properties; or (c) orders the liquidation of the Company or any
Significant Subsidiary and in each case the order or decree remains
unstayed and in effect for 60 days;
(viii) the lenders under the Senior Credit Facilities shall
commence judicial proceedings to foreclose upon any material portion of
the assets of the Company and its Subsidiaries or shall have exercised
any right under applicable law or applicable security documents to take
ownership of any such assets in lieu of foreclosure; or
(ix) any of the Guarantees shall be declared or adjudged
invalid in a final judgment or order issued by any court or
governmental authority.
In the event of a declaration of acceleration because of an
Event of Default set forth in clause (iv) above has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if either (i) the holders of the Indebtedness which is the subject of such Event
of Default have waived such failure to pay at maturity or have rescinded the
acceleration in respect of such Indebtedness within 90 days of such maturity or
declaration of acceleration, as the case may be, and no other Event of Default
has occurred during such 90-day period which has not been cured or waived, or
(ii) such Indebtedness shall have been discharged or the maturity thereof shall
have been extended such that it is not then due and payable, or the underlying
default
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has been cured, within 90 days of such maturity or declaration of acceleration,
as the case may be.
A Default under clause (iii) above (other than in the case of
any Default under Section 5.03, 5.15, 5.16 or 6.01, which Defaults shall be
Events of Default with the notice specified in this paragraph but without the
passage of time specified in this paragraph) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities notify the Company and the Trustee of the
Default, and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default." Such notice shall be given
by the Trustee if so requested by the Holders of at least 25% in principal
amount of the Securities then outstanding. When a Default is cured, it ceases.
SECTION 7.02. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 7.01(vi) or (vii) with respect to the Company or a
Subsidiary Guarantor) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Securities may, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the then outstanding Securities shall, declare due and
payable all unpaid principal and interest accrued and unpaid on the then
outstanding Securities by written notice to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Senior Credit Facilities, shall become immediately due and payable upon the
first to occur of an acceleration under the Senior Credit Facilities, or five
business days after receipt by the Company and the Credit Agent of such
Acceleration Notice. If an Event of Default specified in Section 7.01(vi) or
(vii) occurs with respect to the Company or a Subsidiary Guarantor that is a
Significant Subsidiary, all unpaid principal of and accrued interest on all then
outstanding Securities shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any of the Holders. Upon
payment of such principal amount, interest, and premium, if any, all of the
Company's obligations under the Securities and this Indenture, other than
obligations under Section 8.07, shall terminate. At any time after a declaration
of acceleration with respect to the Securities as described above, the Holders
of a majority in principal amount of the Securities then
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outstanding, by notice to the Trustee, may rescind and cancel such declaration
and its consequences if (i) all existing Events of Default, other than the
non-payment of the principal of or interest on the Securities which has become
due solely by such acceleration, have been cured or waived, (ii) to the extent
the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, (iv)
the Company has paid or deposited with the Trustee a sum sufficient to pay all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and (v) in the event of the cure or waiver of an Event of Default of
the type described in clauses (vi), (vii), (viii), or (ix) of Section 7.01
above, the Trustee shall have received an Officers' Certificate and an Opinion
of Counsel that such Event of Default has been cured or waived.
(b) In the event of a declaration of acceleration under this
Indenture because an Event of Default set forth in Section 7.01(iv) has occurred
and is continuing, such declaration of acceleration shall be automatically
rescinded and annulled if either (i) the holders of the Indebtedness which is
the subject of such Event of Default have waived such failure to pay at maturity
or have rescinded the acceleration in respect of such Indebtedness within 90
days of such maturity or declaration of acceleration, as the case may be, and no
other Event of Default has occurred during such 90-day period which has not been
cured or waived, or (ii) such Indebtedness shall have been discharged or the
maturity thereof shall have been extended such that it is not then due and
payable, or the underlying default has been cured, within 90 days of such
maturity or declaration of acceleration, as the case may be.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
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exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 7.04. Waiver of Past Defaults.
Subject to Sections 7.07 and 10.02, the Holders of a majority
in principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (i) and (ii) of Section 7.01. When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 7.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it, including, without limitation,
any remedies provided for in Section 7.03. Subject to Section 8.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in principal
amount of the outstanding Securities make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
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(5) during such 60-day period the Holder or Holders of a
majority in principal amount of the outstanding Securities do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 7.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 7.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the
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making of such payments directly to the Securityholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agent and counsel, and any other amounts due
the Trustee under Section 8.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Security-holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 7.10. Priorities.
If the Trustee collects any money pursuant to this Article
Seven, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: subject to Article Four and Article Twelve, to
Holders for interest accrued on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for interest;
Third: subject to Article Four and Article Twelve, to
Holders for principal amounts due and unpaid on the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal; and
Fourth: subject to Article Four and Article Twelve, to the
Company or the Subsidiary Guarantors, as their respective interests may
appear.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 7.10.
SECTION 7.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
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concurrent assertion or employment of any other appropriate right or remedy.
SECTION 7.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article Seven or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.13 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 7.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
ARTICLE EIGHT
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 8.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
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(b) Except during the continuance of a Default or an Event
of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 8.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
8.01.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree with the
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Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 8.02. Rights of Trustee.
Subject to Section 8.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 13.04 and 13.05.
The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates
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with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee must comply with Sections 8.10 and
8.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 8.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder of
Securities notice of the Default or Event of Default within 90 days after such
Default or Event of Default occurs; provided, however, that, except in the case
of a Default or Event of Default in the payment of the principal of or interest
on any Security, including the failure to make payment on a Change of Control
Payment Date pursuant to a Change of Control Offer or payment when due pursuant
to a Net Proceeds Offer the Trustee may withhold such notice if it in good faith
determines that withholding such notice is in the interest of the Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Securityholder a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each stock exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become
listed on any stock exchange.
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SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it except for such actions
to the extent caused by any negligence or bad faith on its part, arising out of
or in connection with the administration of this trust and its rights or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided that the Company will not be required to pay such fees
and expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
8.07, the Trustee shall have a lien prior to the Securities on all assets held
or collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(vi) or (vii) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee and appoint a successor trustee
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with the Company's consent, by so notifying the Company and the Trustee. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 8.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
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SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 8.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Company's
Obligations.
The Company may terminate its obligations under the Securities
and this Indenture, and the obligations of any Subsidiary Guarantor shall
terminate, except those obligations referred to in the penultimate paragraph of
this Section 9.01, if all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced or
paid or Securities for whose payment money has theretofore been deposited with
the Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid
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to the Company, as provided in Section 9.04) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder, or
if:
(1) either (i) pursuant to Article Three, the Company shall
have given notice to the Trustee and mailed a notice of redemption to
each Holder of the redemption of all of the Securities or (ii) all
Securities have otherwise become due and payable hereunder;
(2) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee or a trustee satisfactory to the Trustee,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, money in such amount as is
sufficient without consideration of reinvestment of such interest, to
pay principal of, premium, if any, and interest on the outstanding
Securities to maturity or redemption; provided that the Trustee shall
have been irrevocably instructed to apply such money to the payment of
said principal, premium, if any, and interest with respect to the
Securities; and provided, further, that from and after the time of
deposit, the money deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the provisions of Article
Four and Article Twelve;
(3) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which the Company is a party
or by which it is bound;
(4) the Company shall have paid all other sums payable by it
hereunder; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for the termination of the Company's and
any Subsidiary Guarantor's obligation under the Securities and this
Indenture have been complied with. Such Opinion of Counsel shall also
state that such satisfaction and discharge does not result in a default
under the Senior Credit Facilities (if then in effect) or any other
agreement or instrument then known to such counsel that binds or
affects the Company.
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Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 5.01, 5.02 and 8.07 and any
Subsidiary Guarantor's obligations in respect thereof shall survive until the
Securities are no longer outstanding pursuant to the last paragraph of Section
2.08. After the Securities are no longer outstanding, the Company's obligations
in Sections 8.07, 9.04 and 9.05 and any Subsidiary Guarantor's obligations in
respect thereof shall survive.
After such delivery or irrevocable deposit and compliance with
the other requirements of this Section 9.01, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and any Subsidiary
Guarantor's obligations under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option by Board Resolution of the
Board of Directors of the Company, at any time, with respect to the Securities,
elect to have either paragraph (b) or paragraph (c) below be applied to the
outstanding Securities upon compliance with the conditions set forth in
paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), the Company and any Subsidiary
Guarantor shall be deemed to have been released and discharged from its
obligations with respect to the outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "legal defeasance"). For
this purpose, such legal defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of paragraph (e) below and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), and Holders of the Securities and
the Guarantees and any amounts deposited under paragraph (d) below shall cease
to be subject to any obligations to, or the rights of, any holder of Senior
Indebtedness or Guarantor Senior Indebtedness under Article Four, Article Twelve
or otherwise, except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in paragraph (d)
below and as more fully set forth
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in such paragraph, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.06, 2.07 and 5.02,
and, with respect to the Trustee, under Section 8.07 and any Subsidiary
Guarantor's obligations in respect thereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection herewith, and (iv) this Section 9.02 and Section 9.05. Subject to
compliance with this Section 9.02, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Article Four and
Article Six and in Sections 5.03, 5.05 through 5.09 and 5.11 through 5.19 with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed to be not "outstanding" for the purpose of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder and Holders
of the Securities and the Guarantees and any amounts deposited under paragraph
(d) below shall cease to be subject to any obligations to, or the rights of, any
holder of Senior Indebtedness or Guarantor Senior Indebtedness under Article
Four, Article Twelve or otherwise. For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities, the Company and any
Subsidiary Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 7.01(iii),
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 8.10 who shall agree to
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comply with the provisions of this Section 9.02 applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (x) cash in U.S. dollars or
(y) direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which
guarantee or obligation the full faith and credit of the United States
is pledged ("U.S. Government Obligations") maturing as to principal,
premium, if any, and interest in such amounts of money and at such
times as are sufficient without consideration of any reinvestment of
such interest, to pay principal of and interest on the outstanding
Securities not later than one day before the due date of any payment,
or (z) a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge principal
of, premium, if any, and interest on the outstanding Securities on the
Maturity Date or otherwise in accordance with the terms of this
Indenture and of such Securities; provided, however, that the Trustee
(or other qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or other
qualifying trustee) to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities;
(ii) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an Event of
Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as Section 7.01(vi)
or (vii) is concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(iii) such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest with respect to any
Securities of the Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other material agreement or
instrument to which the Company, any Subsidiary or any Subsidiary
Guarantor is a party or by which
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it is bound (and in that connection, the Trustee shall have received a
certificate from the Credit Agent to that effect with respect to such
Senior Credit Facilities if then in effect);
(v) in the case of an election under paragraph (b) above,
the Company shall have delivered to the Trustee an Opinion of Counsel,
such counsel being in the United States, stating that (x) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the Issue Date, there has been a change
in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of
the outstanding Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such legal defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such legal
defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above,
the Company shall have delivered to the Trustee an Opinion of Counsel,
such counsel being in the United States, to the effect that the Holders
of the outstanding Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or
(c) above, an Opinion of Counsel to the effect that, (x) the trust
funds will not be subject to any rights of any other holders of Senior
Indebtedness or Guarantor Senior Indebtedness, including, without
limitation, those arising under this Indenture, after the 91st day
following the deposit, and (y) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law;
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c)
above, as the case may be, have been complied with; and
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(ix) the Company shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities
over other creditors of the Company or any Subsidiary Guarantor or with
the intent of defeating, hindering, delaying or defrauding creditors of
the Company, any Subsidiary Guarantor or others.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Affiliate of the Company) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 9.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request, in writing, by the Company any money or U.S. Government Obligations
held by it as provided in paragraph (d) above which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
SECTION 9.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 9.01 and 9.02, and shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Indenture to the
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payment of principal of, premium, if any, and interest on the Securities.
SECTION 9.04. Repayment to Company or Subsidiary
Guarantors.
Subject to Sections 8.07, 9.01 and 9.02, the Trustee shall
promptly pay to the Company, or if deposited with the Trustee by any Subsidiary
Guarantor, to such Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 9.02, held
by it at any time. The Trustee and the Paying Agent shall pay to the Company or
any Subsidiary Guarantor, as the case may be, upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate, any money held by
it for the payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is required; provided,
however, that the Trustee and the Paying Agent before being required to make any
payment may, but need not, at the expense of the Company cause to be published
once in a newspaper of general circulation in The City of New York or mail to
each Holder entitled to such money notice that such money remains unclaimed and
that after a date specified therein, which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company or any
Subsidiary Guarantor, as the case may be, Security- holders entitled to money
must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 9.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's and each Subsidiary Guarantor's,
if any, obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, however, that if the
Company or the Subsidiary Guarantors, as the case may be, has made any payment
of principal of, premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company or the
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Subsidiary Guarantors, as the case may be, shall be, subrogated to the rights of
the holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by
a Board Resolution, and the Trustee, together, may amend or supplement this
Indenture or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not adversely affect the rights
of any Holder hereunder;
(2) to comply with Article Six and Section 11.06;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to make any other change that does not adversely affect
the rights of any Securityholder hereunder in any material respect; or
(5) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 10.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 7.07, the Company and each Subsidiary
Guarantor, when authorized by a Board Resolution, and the Trustee, together with
the written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Securities then outstanding (including
consents obtained in connection with a tender offer or exchange offer for such
Securities), may amend or supplement, or waive compliance with any
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provision of, this Indenture, the Securities or any Guarantee without notice to
any other Securityholders. Without the consent of each Securityholder affected,
however, no amendment, supplement or waiver, including a waiver pursuant to
Section 7.04, may:
(1) change the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver of any provision of
this Indenture, the Securities or the Guarantees;
(2) reduce the rate or extend the time for payment of interest
on any Security;
(3) reduce the principal amount of any Security;
(4) change the Maturity Date of any Security or alter the
redemption provisions in this Indenture or the Securities in a manner
adverse to any Holder;
(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or the
rights of Holders to recover the principal of, interest on, or
redemption payment with respect to, any Security;
(6) make any changes in this Section 10.02;
(7) make the principal of, or the interest on, any Security
payable with anything or in any manner other than as provided for in
this Indenture, the Securities and the Guarantees as in effect on the
date hereof; or
(8) modify the subordination provisions of this Indenture
(including the related definitions) so as to adversely affect the
ranking of any Security or Guarantee; provided that it is understood
that any amendment the purpose of which is to permit the incurrence of
additional Indebtedness under this Indenture shall not be construed as
to adversely affect the ranking of any Security or Guarantee.
Without the consent of Holders of not less than 75% in
aggregate principal amount of Notes then outstanding, no such amendment,
supplement or waiver may change the Change of Control Payment Date or the
purchase price in connection with any repurchase of Notes pursuant to Section
5.15 in a manner adverse to any Holder or waive a Default or Event of Default
resulting from a failure to comply with Section 5.15.
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It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under
this Article Ten, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
No amendment, supplement or waiver under this Section shall have a material
adverse effect on the rights of the holders of Senior Indebtedness or Guarantor
Senior Indebtedness without their prior written consent.
SECTION 10.03. Compliance with TIA.
From the date on which the Indenture is qualified under the
TIA, every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last
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sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 10.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such
Holder.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 10.06. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Ten; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article Ten is authorized or permitted by this Indenture.
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the
"Guarantee"), subject to Article Twelve, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, the Securities or the Obligations of the Company hereunder or
thereunder, that: (i) the principal of and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise and interest on the overdue principal,
if any, and interest on any interest, to the extent lawful, of the Securities
and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Securities or of any such other obligations, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.05. Each
Subsidiary Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Securities,
this Indenture and in this Guarantee. If any Securityholder or the Trustee is
required by any court or otherwise to return to the Company, any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Subsidiary Guarantor, any amount paid
by the Company or any Subsidiary Guarantor to the Trustee or such
Securityholder,
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this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Subsidiary Guarantor further agrees that, as between
each Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Seven for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Seven, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Guarantee.
SECTION 11.02. Subordination of Guarantee.
The obligations of each Subsidiary Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee and this Indenture are
expressly subordinate and subject in right of payment to the prior payment in
full of all Guarantor Senior Indebtedness of such Subsidiary Guarantor, to the
extent and in the manner provided in Article Twelve.
SECTION 11.03. Severability.
In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.04. Release of a Subsidiary Guarantor.
Upon (i) the release by the lenders under the Term Loans,
related documents and future refinancings thereof of all guarantees of a
Subsidiary Guarantor and all Liens on the property and assets of such Subsidiary
Guarantor relating to such Indebtedness, or (ii) the sale or disposition
(whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary
Guarantor (or all or substantially all its assets) to an entity which is not a
Subsidiary of the Company and which sale or disposition is otherwise in
compliance with the terms of this Indenture, such Subsidiary Guarantor shall be
deemed released from all obligations under this Article Eleven without any
further action required on the part of the Trustee or any Holder; provided,
however, that any such termination shall occur only to the extent that all
obligations of such Subsidiary Guarantor under all of its guarantees of, and
under all of its pledges of assets or other
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security interests which secure, such Indebtedness of the Company shall also
terminate upon such release, sale or transfer.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 11.04. Any Subsidiary Guarantor not so released remains liable
for the full amount of principal of and interest on the Securities as provided
in this Article Eleven.
SECTION 11.05. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each
Holder hereby confirms that it is the intention of all such parties that the
guarantee by such Subsidiary Guarantor pursuant to its Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the Holders
and such Subsidiary Guarantor hereby irrevocably agree that the obligations of
such Subsidiary Guarantor under the Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor (including, but not limited to, the
Guarantor Senior Indebtedness of such Subsidiary Guarantor) and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Guarantee or pursuant to Section 11.07, result in the
obligations of such Subsidiary Guarantor under the Guarantee not constituting
such fraudulent transfer or conveyance.
SECTION 11.06. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor or shall prevent any
sale of assets or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety, to the Company or another Subsidiary
Guarantor. Upon any such consolidation, merger, sale or conveyance, the
Guarantee given by such Subsidiary Guarantor shall no longer have any force or
effect.
(b) Except as set forth in Article Five and Article Six
hereof, nothing contained in this Indenture or in any of the
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Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into a corporation or corporations other than the Company or another
Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor)
or shall prevent any sale of assets or conveyance of the property of a
Subsidiary Guarantor as an entirety or substantially as an entirety, to a
corporation or corporations other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided,
however, that, subject to Sections 11.04 and 11.06(a), (i) immediately after
such transaction, and giving effect thereto such transaction does not (a)
violate any covenants set forth herein or (b) results in a Default or Event of
Default under this Indenture that is continuing, and (ii) upon any such
consolidation, merger, sale or conveyance, the Subsidiary Guarantee set forth in
this Article Eleven, and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed by such
Subsidiary Guarantor, shall be expressly assumed (in the event that the
Subsidiary Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such consolidation, or
into which the Subsidiary Guarantor shall have merged, or by the corporation
that shall have acquired such property. In the case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor corporation,
by supplemental indenture executed and delivered to the Trustee and satisfactory
in form to the Trustee of the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor corporation shall succeed to and be substituted for
the Subsidiary Guarantor with the same effect as if it had been named herein as
a Subsidiary Guarantor; provided, however, that solely for purposes of computing
amounts described in subclause (c) of the first paragraph of Section 5.03, any
such successor corporation shall only be deemed to have succeeded to and be
substituted for any Subsidiary Guarantor with respect to periods subsequent to
the effective time of such merger, consolidation or transfer of assets.
SECTION 11.07. Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments,
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damages and expenses incurred by that Funding Guarantor in discharging the
Company's obligations with respect to the Securities or any other Subsidiary
Guarantor's obligations with respect to the Guarantee. "Adjusted Net Assets" of
such Subsidiary Guarantor at any date shall mean the lesser of the amount by
which (x) the fair value of the property of such Subsidiary Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date (other than liabilities of such Subsidiary
Guarantor under Subordinated Indebtedness)), but excluding liabilities under the
Guarantee, of such Subsidiary Guarantor at such date and (y) the present fair
salable value of the assets of such Subsidiary Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Subsidiary Guarantor on its debts including, without limitation, Guarantor
Senior Indebtedness (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Subsidiary Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding debt in respect
of the Guarantee of such Subsidiary Guarantor, as they become absolute and
matured.
SECTION 11.08. Waiver of Subrogation.
Until all Guarantee Obligations are paid in full each
Subsidiary Guarantor hereby irrevocably waives any claim or other rights which
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Subsidiary Guarantor's
obligations under the Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
subject to the provisions of Section 11.02, Article Four and Article Twelve,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Subsidiary
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Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the waiver
set forth in this Section 11.08 is knowingly made in contemplation of such
benefits.
SECTION 11.09. Execution of Guarantee.
To evidence their guarantee to the Securityholders set forth
in this Article Eleven, the Subsidiary Guarantors hereby agree to execute the
Guarantee in substantially the form included in Exhibit A and Exhibit B, which
shall be endorsed on each Security ordered to be authenticated and delivered by
the Trustee. Each Subsidiary Guarantor hereby agrees that its Guarantee set
forth in this Article Eleven shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Subsidiary
Guarantor by two Officers, or an Officer and an Assistant Secretary or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to such Guarantee prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Subsidiary Guarantor. Such
signatures upon the Guarantee may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the Guarantee, and in
case any such officer who shall have signed the Guarantee shall cease to be such
officer before the Security on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Guarantee had not ceased to be such officer of
the Subsidiary Guarantor.
SECTION 11.10. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each
such Subsidiary Guarantor from performing its Guarantee as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each such Subsidiary Guarantor hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the
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execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Anything herein to the contrary notwithstanding, each of the
Subsidiary Guarantors, for itself and its successors, and each Holder, by his
acceptance of Guarantees, agrees, that any payment of obligations by a
Subsidiary Guarantor in respect of its Guarantee (collectively, as to any
Subsidiary Guarantor, its "Guarantee Obligations") is subordinated, to the
extent and in the manner provided in this Article Twelve, to the prior payment
in full in cash or Cash Equivalents of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor.
This Article Twelve shall constitute a continuing offer to all
persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default.
(a) Unless Section 12.03 shall be applicable, upon (1) the
occurrence of a Payment Default with respect to any Designated Senior
Indebtedness or Significant Senior Indebtedness guaranteed by a Subsidiary
Guarantor (which guarantee consititutes Guarantor Senior Indebtedness of such
Subsidiary Guarantor) and (2) receipt by the Trustee, the Company and such
Subsidiary Guarantor from the Representatives of written notice of such
occurrence, then no payment (other than payments previously made pursuant to
Article Nine hereof) or distribution of any assets of such Subsidiary Guarantor
of any kind or character shall be made by such Subsidiary Guarantor on account
of any Obligations under the Securities or on account of the purchase,
redemption or other acquisition of Securities or any of the obligations of such
Subsidiary Guarantor under this Guarantee unless and until such Payment Default
shall have been cured or waived or shall have
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ceased to exist or such Guarantor Senior Indebtedness shall have been discharged
or paid in full in cash or Cash Equivalents, after which such Guarantor shall
resume making any and all required payments in respect of its obligations under
this Guarantee.
(b) Unless Section 12.03 shall be applicable upon (1) the
occurrence of a Non-payment Default with respect to any Designated Senior
Indebtedness guaranteed by a Subsidiary Guarantor (which guarantee constitutes
Guarantor Senior Indebtedness of such Subsidiary Guarantor) and (2) the earlier
of (i) receipt by the Trustee, the Company and such Subsidiary Guarantor from
the Representatives of written notice of such occurrence stating that such
notice is a "Payment Blockage Notice" pursuant to Sections 4.02(b) and 12.02(b)
of this Indenture or (ii) if such Non-payment Default results from the
acceleration of the Securities, the date of the acceleration of the Securities,
no payment (other than payments previously made pursuant to Article Nine hereof)
or distribution of any assets of such Subsidiary Guarantor of any kind or
character shall be made by such Guarantor on account of principal, premium, if
any, or interest on the Securities or on account of the purchase, redemption or
other acquisition of Securities or on account of any of the other obligations of
such Subsidiary Guarantor under this Guarantee for a period ("Guarantor Payment
Blockage Period") commencing on the date of receipt by the Trustee of such
notice or the date of the acceleration referred to in clause (ii) above, as the
case may be, unless and until the earlier to occur of the following events: (w)
179 days shall have elapsed since receipt of such written notice by the Trustee
or the date of the acceleration of the Securities, as the case may be (provided
such Guarantor Senior Indebtedness shall theretofore not have been accelerated),
(x) such Non-payment Default shall have been cured or waived or shall have
ceased to exist, (y) such Guarantor Senior Indebtedness shall have been
discharged or paid in full or (z) such Guarantor Payment Blockage Period shall
have been terminated by written notice to the Trustee from the Representative
initiating such Guarantor Payment Blockage Period, or the holders of at least a
majority in principal amount of such issue of such Guarantor Senior
Indebtedness, after which, in the case of clause (w), (x), (y) or (z), the
Subsidiary Guarantor shall resume making any and all required payments in
respect of its obligations under this Guarantee. Notwithstanding any other
provisions of this Indenture, only one Guarantor Payment Blockage Period may be
commenced within any consecutive 365 day period and no Non-payment Default with
respect to Guarantor Senior Indebtedness guaranteed by any Subsidiary Guarantor
(which guarantee constitutes Guarantor Senior Indebtedness of such Subsidiary
Guarantor) which existed or was continuing on the date of the commencement of
any Guarantor Payment Blockage Period shall be, or be made, the basis for the
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commencement of a second Guarantor Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days. In no
event shall a Guarantor Payment Blockage Period extend beyond 179 days from the
date of the receipt of the notice by the Trustee or the date of the acceleration
of the Securities referred to in clause (2).
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any payment prohibited
by the foregoing provisions of this Section 12.02, then and in such event such
payment shall be segregated from other funds and held in trust by the Trustee or
such Holder or Paying Agent for the benefit of, and shall immediately be paid
over to the holders of Senior Indebtedness or to the Representatives or as a
court of competent jurisdiction shall direct.
SECTION 12.03. Guarantee Obligations Subordinated to Prior
Payment of All Guarantor Senior Indebtedness
on Dissolution, Liquidation or Reorganization
of Such Subsidiary Guarantor.
Upon any payment or distribution of assets of any Subsidiary
Guarantor of any kind or character, whether in cash, property or securities upon
any dissolution, winding up, total or partial liquidation or reorganization of
such Subsidiary Guarantor and whether voluntary or involuntary (including,
without limitation, in bankruptcy, insolvency or receivership proceedings or
upon any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of such Subsidiary Guarantor and whether voluntary or
involuntary):
(a) the holders of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor shall first be entitled to receive payments in
full in cash or Cash Equivalents of all amounts payable under Guarantor
Senior Indebtedness (including, with respect to Designated Senior
Indebtedness and Significant Senior Indebtedness guaranteed by such
Subsidiary Guarantor, any interest accruing after the commencement of
any such proceeding at the rate specified in the applicable Designated
Senior Indebtedness and Significant Senior Indebtedness whether or not
interest is an allowed claim enforceable against the Company in any
such proceeding) before the Holders will be entitled to receive any
payment with respect to the Guarantee, and until all Obligations with
respect to the Guarantor Senior Indebtedness are paid in full in cash
or Cash Equivalents, any distribution to which the Holders would be
entitled shall be made to the holders of Guarantor Senior
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Indebtedness; provided, however, that no payment by any other
Subsidiary Guarantor or the Company shall constitute payment on behalf
of such Subsidiary Guaranty for purposes of this Section 12.03(a);
(b) any payment or distribution of assets of such Subsidiary
Guarantor of any kind or character, whether in cash, property or
securities, to which the Holders or the Trustee on behalf of the
Holders would be entitled except for the provisions of this Article
Twelve, shall be paid by the liquidating trustee or agent or other
person making such a payment or distribution, directly to the holders
of Guarantor Senior Indebtedness of such Subsidiary Guarantor or their
Representatives, ratably according to the respective amounts of such
Guarantor Senior Indebtedness remaining unpaid held or represented by
each, until all such Guarantor Senior Indebtedness remaining unpaid
shall have been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment or distribution to the holders of such
Guarantor Senior Indebtedness;
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of such Subsidiary Guarantor of any
kind or character, whether in cash, property or securities, shall be
received by the Trustee or the Holders or any Paying Agent in respect
of payment of the Guarantee before all Guarantor Senior Indebtedness of
such Subsidiary Guarantor is paid in full in cash or Cash Equivalents,
such payment or distribution (subject to the provisions of Sections
12.06 and 12.07) shall be received, segregated from other funds, and
held in trust by the Trustee or such Holder or Paying Agent for the
benefit of, and shall immediately be paid over to, the holders of such
Guarantor Senior Indebtedness or their Representatives, ratably
according to the respective amounts of such Guarantor Senior
Indebtedness held or represented by each, until all such Guarantor
Senior Indebtedness remaining unpaid shall have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent payment
or distribution to the holders of Guarantor Senior Indebtedness.
Each Subsidiary Guarantor shall give prompt notice to the
Trustee prior to any dissolution, winding up, total or partial liquidation or
total or reorganization (including, without limitation, in bankruptcy,
insolvency, or receivership proceedings or upon any assignment for the benefit
of creditors or any other marshalling of such Subsidiary Guarantor's assets and
liabilities).
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SECTION 12.04. Holders of Guarantee Obligations To Be
Subrogated to Rights of Holders of
Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Indebtedness, the Holders of Guarantee Obligations of a
Subsidiary Guarantor shall be subrogated to the rights of the holders of
Guarantor Senior Indebtedness of such Subsidiary Guarantor to receive payments
or distributions of assets of such Subsidiary Guarantor applicable to such
Guarantor Senior Indebtedness until all amounts owing on or in respect of the
Guarantee Obligations shall be paid in full in cash or Cash Equivalents, and for
the purpose of such subrogation no payments or distributions to the holders of
such Guarantor Senior Indebtedness by or on behalf of such Subsidiary Guarantor,
or by or on behalf of the Holders by virtue of this Article Twelve, which
otherwise would have been made to the Holders, shall, as between such Subsidiary
Guarantor and the Holders, be deemed to be payment by such Subsidiary Guarantor
to or on account of such Guarantor Senior Indebtedness, it being understood that
the provisions of this Article Twelve are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of such Guarantor Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under such Guarantor Senior Indebtedness, then
the Holders shall be entitled to receive from the holders of such Guarantor
Senior Indebtedness any payments or distributions received by such holders of
such Guarantor Senior Indebtedness in excess of the amount sufficient to pay all
amounts payable under or in respect of such Guarantor Senior Indebtedness in
full in cash or Cash Equivalents.
SECTION 12.05. Obligations of the Subsidiary
Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors, which is absolute and unconditional, to pay to the Holders all
amounts due and payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Subsidiary
Guarantors other than the holders of the Guarantor
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Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Twelve, of the holders of Guarantor Senior Indebtedness in respect of
cash, property or securities of the Subsidiary Guarantors received upon the
exercise of any such remedy. Upon any payment or distribution of assets of any
Subsidiary Guarantor referred to in this Article Twelve, the Trustee, subject to
the provisions of Sections 8.01 and 8.02, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which any dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidating
trustee or agent or other person making any payment or distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Guarantor Senior
Indebtedness and other Indebtedness of any Subsidiary Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve. Nothing in this
Section 12.05 shall apply to the claims of, or payments to, the Trustee under or
pursuant to Section 8.07.
SECTION 12.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received notice thereof from the Company or any Subsidiary Guarantor or from one
or more holders of Guarantor Senior Indebtedness or from any Representative
therefor and, prior to the receipt of any such notice, the Trustee shall be
entitled in all respects conclusively to assume that no such fact exists.
SECTION 12.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Sections 9.01 and 9.02
shall be for the sole benefit of Securityholders and, to the extent allocated
for the payment of Securities, shall not be subject to the subordination
provisions of this Article Twelve. Otherwise, any deposit of assets or
securities by or on behalf of a Subsidiary Guarantor with the Trustee or any
Paying Agent (whether or not in trust) for payment
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of the Guarantee shall be subject to the provisions of this Article Twelve;
provided that if prior to the second Business Day preceding the date on which by
the terms of this Indenture any such assets may become distributable for any
purpose (including, without limitation, the payment of either principal of or
interest on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the notice provided for in Section 12.06,
then the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary received by it
on or after such date. The foregoing shall not apply to the Paying Agent if the
Company or any Subsidiary or Affiliate of the Company is acting as Paying Agent.
Nothing contained in this Section 12.07 shall limit the right of the holders of
Guarantor Senior Indebtedness to recover payments as contemplated by this
Article Twelve.
SECTION 12.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Subsidiary Guarantor or by any act or failure to act by any such
holder, or by any non-compliance by any Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 12.08, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article Twelve or the obligations hereunder of the Holders of the
Securities to the holders of Guarantor Senior Indebtedness, do any one or more
of the following: (1) change the manner, place, terms or time of payment of, or
renew or alter, Guarantor Senior Indebtedness or any instrument evidencing the
same or any agreement under which Guarantor Senior Indebtedness is outstanding;
(2) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Guarantor Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Guarantor Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other person.
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SECTION 12.09. Holders Authorize Trustee to Effectuate
Subordination of Guarantee Obligations.
Each Holder of the Guarantee Obligations by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination provisions
contained in this Article Twelve, and appoints the Trustee his attorney-in-fact
for such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of any Subsidiary Guarantor (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of assets and liabilities of any
Subsidiary Guarantor) tending towards liquidation or reorganization of the
business and assets of any Subsidiary Guarantor, the immediate filing of a claim
for the unpaid balance under its or his Guarantee Obligations in the form
required in said proceedings and cause said claim to be approved. If the Trustee
does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim
or claims, then any of the holders of the Guarantor Senior Indebtedness or their
Representatives is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Guarantee Obligations. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Guarantor Senior
Indebtedness or their Representative to authorize or consent to or accept or
adopt on behalf of any holder of Guarantee Obligations any plan of
reorganization, arrangement, adjustment or composition affecting the Guarantee
Obligations or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Guarantor Senior Indebtedness or their Representative to vote in
respect of the claim of any holder of Guarantee Obligations in any such
proceeding.
SECTION 12.10. Right of Trustee to Hold Guarantor
Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth
in this Article Twelve in respect of any Guarantor Senior Indebtedness at any
time held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
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SECTION 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by
reason of any provision of this Article Twelve shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section
7.01.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Twelve of the holders, from time to time, of Guarantor Senior
Indebtedness.
SECTION 12.12. No Fiduciary Duty of Trustee to Holders
of Guarantor Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness, and shall not be liable to any
such holders (other than for its willful misconduct or gross negligence) if it
shall pay over or deliver to the holders of Guarantee Obligations or the Company
or any other person, money or assets in compliance with the terms of this
Indenture. Nothing in this Section 12.12 shall affect the obligation of any
person other than the Trustee to hold such payment for the benefit of, and to
pay such payment over to, the holders of Guarantor Senior Indebtedness or their
Representative.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 3.18(c) of the TIA,
the imposed duties shall control.
SECTION 13.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
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if to the Company or any Subsidiary Guarantor:
Dominick's Finer Foods, Inc
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Division
if to the Credit Agent:
Bankers Trust Company
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Each of the Company, the Trustee, the Subsidiary Guarantors
and the Credit Agent by written notice to each other such person may designate
additional or different addresses for notices to such person. Any notice or
communication to the Company, the Trustee, the Subsidiary Guarantors and the
Credit Agent shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that any notice to the
Trustee and a notice of change of address shall not be deemed to have been given
until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to it by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or
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communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Subsidiary Guarantors, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 5.07, shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such convenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied
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with; provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates
of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at
a meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, Los Angeles, California or at such place of payment are not
required to be open. If a payment date is a Legal Holiday at such place, payment
may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
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SECTION 13.11. Successors.
All agreements of the Company and each Subsidiary Guarantor in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. No Violation.
Notwithstanding the provisions of this Indenture, in no event
shall any transaction, agreement, payment or other event to be consummated,
entered into or made in connection with the Acquisition or any financing thereof
(including without limitation the transaction referred to in Section 6.01(c)) be
considered a violation of any provision of this Indenture or constitute a Change
of Control hereunder.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
Dated: May 4, 1995
DOMINICK'S FINER FOODS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Attest: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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THE SUBSIDIARY GUARANTORS:
DOMINICK'S FINER FOODS, INC.
OF ILLINOIS,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇'▇ OF BLOOMINGDALE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ HAZELCREST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
126
-118-
SAVE-IT DISCOUNT FOODS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
JERRY'S DEEP DISCOUNT CENTERS,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior V.P., CFO
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
127
EXHIBIT A
[FORM OF INITIAL SECURITY]
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
DOMINICK'S FINER FOODS, INC.
10 7/8% SENIOR SUBORDINATED NOTE DUE 2005
No. $
DOMINICK'S FINER FOODS, INC., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to or registered assigns, the principal sum of Dollars, on May
1, 2005.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: May 4, 1995
Attest: DOMINICK'S FINER FOODS, INC.
________________________ By: ________________________________
Name: Name:
Title: Title:
Certificate Of Authentication
This is one of the 10 7/8% Senior Subordinated Notes due 2005
referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
Dated: May 4, 1995 By _________________________________
Authorized Signatory
A-1
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DOMINICK'S FINER FOODS, INC.
10 7/8% Senior Subordinated Notes
due 2005
1. Interest.
DOMINICK'S FINER FOODS, INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest semi-annually on
May 1 and November 1 of each year (the "Interest Payment Date"), commencing on
November 1, 1995. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance of the Securities. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds, or
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. Notwithstanding the foregoing, the Company shall pay or
cause to be paid all amounts payable with respect to non-DTC eligible Securities
by wire transfer of Federal funds to the account of the Holders of such
Securities.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇-▇▇▇▇▇▇▇▇▇.
▇-▇
▇▇▇
▇. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as
of May 4, 1995 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and said Act for a statement of them. The
Securities are general unsecured obligations of the Company limited in aggregate
principal amount to $200,000,000. Payment on each Security is guaranteed on a
senior subordinated basis, jointly and severally, by the Subsidiary Guarantors
pursuant to Article Eleven of the Indenture. The Securities include the Initial
Securities and the Exchange Securities, as defined below, issued in exchange for
the Initial Securities pursuant to the Indenture. The Initial Securities and the
Exchange Securities are treated as a single class of securities under the
Indenture.
5. Optional Redemption.
On or after May 1, 2000 the Securities may be redeemed in
whole at any time or in part from time to time, at the option of the Company, at
a redemption price equal to the applicable percentage of the principal amount
thereof set forth below, together with accrued interest to the Redemption Date,
if redeemed during the 12 months commencing on May 1 in the years set forth
below:
Year Percentage
---- ----------
2000.......................... 104.833%
2001.......................... 103.625%
2002.......................... 102.417%
2003.......................... 101.208%
2004 and thereafter........... 100.000%
In addition, on or prior to May 1, 1998, the Company may, at
its option, use the net cash proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 33 1/3% of the principal amount of the Securities
originally issued, at a redemption price equal to 110.875% of the principal
amount thereof if redeemed during the period commencing on May 4, 1995, and
ending on April 30, 1996, 109.667%, if redeemed during the 12 months commencing
on May 1, 1996, and 108.458% of the principal amount thereof if redeemed during
the 12 months commencing on May 1, 1997,
A-3
130
in each case plus accrued interest, if any, to the redemption date; provided
that at least $100 million aggregate principal amount of the Notes remains
outstanding immediately after any such redemption.
The documents evidencing Senior Indebtedness will restrict
the Company's ability to optionally redeem the Securities.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 60 days after the consummation of such Public
Equity Offering. Securities in denominations larger than $1,000 may be redeemed
in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Securities called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date and payment of the Securities called for redemption is not
prohibited under Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase such Holder's Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase.
The Company shall not be required to repurchase Securities until it has complied
with its covenants to repay in full all Indebtedness of the Company and its
Subsidiaries under the Senior Credit Facilities or offer to repay in full all
such Indebtedness and repay the Indebtedness of each lender who has accepted its
offer to repay such Indebtedness or to obtain the requisite consent under the
Senior Credit Facilities to permit the repurchase of the Securities pursuant to
a Change of Control Offer.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply
the net proceeds from Asset Sales to the repayment of Pari Passu Indebtedness or
Senior Indebtedness, to make Related Business Investments, an investment in
properties and assets that replace
A-4
131
the properties and assets that are the subject of such Asset Sale, an investment
in properties and assets that will be used in the business of the Company and
its Subsidiaries existing on the Issue Date or in a business reasonably related
thereto, to be applied against capital expenditures made to acquire or construct
a replacement store in the general vicinity of the store sold or to purchase in
a Net Proceeds Offer (at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of purchase) such aggregate principal
amount of Securities which, when added to the accrued interest thereon, shall be
equal to the net proceeds required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agents will pay the money
back to the Company at its request. After that, all liability of the Trustee and
such Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay the principal of
and interest on the Securities to redemption or maturity and complies with the
other provisions of the Indenture relating thereto, the Company will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding its obligation to pay the
principal of and interest on the Securities).
▇-▇
▇▇▇
▇▇. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities
and the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, comply with Article Six or
Section 11.06 of the Indenture, or comply with any requirements of the SEC in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not adversely affect the rights of any Holder of a
Security.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
15. Subordination.
The Securities will be subordinated in right of payment to
the prior payment in full of all Senior Indebtedness (as defined in the
Indenture) of the Company. The Guarantees are subordinated in right of payment,
in the manner and to the extent set forth in the Indenture, to the prior payment
in full of Guarantor Senior Indebtedness (as defined in the Indenture). To the
extent and in the manner provided in the Indenture, Senior Indebtedness, and in
the case of payment by a Subsidiary Guarantor, Guarantor Senior Indebtedness,
must be paid before any payment may be made to any Holder of this Security. Any
Securityholder by accepting this Security agrees to the subordination and
authorizes the Trustee to give it effect.
16. Successors.
When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
▇-▇
▇▇▇
▇▇. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest,
including an Accelerated Payment) if it determines that withholding notice is in
their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator,
as such, of the Company shall have any liability for any obligation of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
▇-▇
▇▇▇
▇▇. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security
upon written request and without charge a copy of the Indenture.
Requests may be made to: Dominick's Finer Foods, Inc., ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chief Financial Officer.
23. Registration Rights.
Pursuant to the Registration Rights Agreement among the
Company, the Subsidiary Guarantors and the Initial Purchasers on behalf of
Holders of the Initial Securities, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's Series B 10 7/8% Senior
Subordinated Notes due 2005 (the "Exchange Securities"), which have been
registered under the Securities Act, in like principal amount and having terms
identical in all material respects as the Initial Securities. The Holders of the
Initial Securities shall be entitled to receive certain additional interest
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement. Additional interest which may be payable pursuant
to the Registration Rights Agreement shall be payable in the same manner as set
forth herein with respect to the stated interest. The provision of the
Registration Rights Agreement relating to such additional interest are
incorporated herein by reference and made a part hereof as if set forth herein
in full.
A-8
135
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor person under the Indenture) have unconditionally
guaranteed on a senior subordinated basis (such guarantee by each Subsidiary
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest on the Securities, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Eleven and Article Twelve of the Indenture and (ii) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of each Subsidiary Guarantor to the Holders
of Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth and are expressly subordinated and subject in right of
payment to the prior payment in full of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor, to the extent and in the manner provided, in Article
Eleven and Article Twelve of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Guarantee therein made.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Subsidiary Guarantor shall have any liability
under the Guarantee by reason of his or its status as such stockholder, officer,
director or incorporator.
A-9
136
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
DOMINICK'S FINER FOODS, INC.
OF ILLINOIS,
By: _______________________________
Name:
Title:
Attest: ___________________
▇▇▇▇'▇ OF BLOOMINGDALE, INC.
By: _______________________________
Name:
Title:
Attest: ____________________
▇▇▇▇ HAZELCREST, INC.
By: _______________________________
Name:
Title:
Attest: ____________________
SAVE-IT DISCOUNT FOODS
CORPORATION
By: _______________________________
Name:
Title:
Attest: ___________________
A-10
137
JERRY'S DEEP DISCOUNT CENTERS,
INC.
By: _______________________________
Name:
Title:
Attest: ____________________
A-11
138
[FORM OF ASSIGNMENT]
I or we assign this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
--------------------------------------------
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
-------------------- ---------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee:
-----------------------------------------------------------
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
SEC of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) May 4, 1998, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Security is being transferred:
A-12
139
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) __ pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) __ pursuant to an effective registration statement under the Securities
Act; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided that if box (3), (4), (5) or (7) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Securities, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
A-13
140
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated: ________________________ Signed: _______________________________________
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee: ___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ______________________ ____________________________________
NOTICE: To be executed by
an executive officer
A-14
141
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 5.15 or Section 5.16 of the Indenture, check the
appropriate box:
Section 5.15 [ ] Section 5.16 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 5.15 or Section 5.16 of the
Indenture, state the amount:
$
Date:__________ Signature:_________________________________
(Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee: ___________________________________________________________
A-15
142
EXHIBIT B
[FORM OF EXCHANGE SECURITY]
CUSIP NO.:
DOMINICK'S FINER FOODS, INC.
SERIES B 10 7/8% SENIOR SUBORDINATED NOTE DUE 2005
No. $
DOMINICK'S FINER FOODS, INC., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to or registered assigns, the principal sum of Dollars,
on May 1, 2005.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officers.
Dated:
Attest: DOMINICK'S FINER FOODS, INC.
_________________________ By:_________________________________
Name: Name:
Title: Title:
Certificate Of Authentication
This is one of the Series B 10 7/8% Senior Subordinated Notes
due 2005 referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
Dated: By__________________________________
Authorized Signatory
B-1
143
DOMINICK'S FINER FOODS, INC.
Series B 10 7/8% Senior Subordinated Notes
due 2005
1. Interest.
DOMINICK'S FINER FOODS, INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest semi-annually on
May 1 and November 1 of each year (the "Interest Payment Date"), commencing on
November 1, 1995. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance of the Securities. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds, or
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. Notwithstanding the foregoing, the Company shall pay or
cause to be paid all amounts payable with respect to non-DTC eligible Securities
by wire transfer of Federal funds to the account of the Holders of such
Securities.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇-▇▇▇▇▇▇▇▇▇.
▇-▇
▇▇▇
▇. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated
as of May 4, 1995 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are general unsecured obligations of the Company limited in
aggregate principal amount to $200,000,000. Payment on each Security is
guaranteed on a senior subordinated basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Eleven of the Indenture. The
Securities include the Initial Securities and the Exchange Securities, as
defined below, issued in exchange for the Initial Securities pursuant to the
Indenture. The Initial Securities and the Exchange Securities are treated as a
single class of securities under the Indenture.
5. Optional Redemption.
On or after May 1, 2000 the Securities may be redeemed in
whole at any time or in part from time to time, at the option of the Company, at
a redemption price equal to the applicable percentage of the principal amount
thereof set forth below, together with accrued interest to the Redemption Date,
if redeemed during the 12 months commencing on May 1 in the years set forth
below:
Year Percentage
---- ----------
2000............................... 104.833%
2001............................... 103.625%
2002............................... 102.417%
2003............................... 101.208%
2004 and thereafter................ 100.000%
In addition, on or prior to May 1, 1998, the Company may, at
its option, use the net cash proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 33 1/3% of the principal amount of the Securities
originally issued, at a redemption price equal to 110.875% of the principal
amount thereof if redeemed during the period commencing on May 4, 1995, and
ending on April 30, 1996, 109.667%, if redeemed during the 12 months commencing
on May 1, 1996, and 108.458% of the principal amount thereof if redeemed during
the 12 months commencing on May 1, 1997,
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in each case plus accrued interest, if any, to the redemption date; provided
that at least $100 million aggregate principal amount of the Notes remains
outstanding immediately after any such redemption.
The documents evidencing Senior Indebtedness will restrict the
Company's ability to optionally redeem the Securities.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 60 days after the consummation of such Public
Equity Offering. Securities in denominations larger than $1,000 may be redeemed
in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Securities called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date and payment of the Securities called for redemption is not
prohibited under Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase such Holder's Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase.
The Company shall not be required to repurchase Securities until it has complied
with its covenants to repay in full all Indebtedness of the Company and its
Subsidiaries under the Senior Credit Facilities or offer to repay in full all
such Indebtedness and repay the Indebtedness of each lender who has accepted its
offer to repay such Indebtedness or to obtain the requisite consent under the
Senior Credit Facilities to permit the repurchase of the Securities pursuant to
a Change of Control Offer.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply
the net proceeds from Asset Sales to the repayment of Pari Passu Indebtedness or
Senior Indebtedness, to make Related Business Investments, an investment in
properties and assets that replace
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the properties and assets that are the subject of such Asset Sale, an investment
in properties and assets that will be used in the business of the Company and
its Subsidiaries existing on the Issue Date or in a business reasonably related
thereto, to be applied against capital expenditures made to acquire or construct
a replacement store in the general vicinity of the store sold or to purchase in
a Net Proceeds Offer (at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of purchase) such aggregate principal
amount of Securities which, when added to the accrued interest thereon, shall be
equal to the net proceeds required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agents will pay the money
back to the Company at its request. After that, all liability of the Trustee and
such Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay the principal of
and interest on the Securities to redemption or maturity and complies with the
other provisions of the Indenture relating thereto, the Company will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding its obligation to pay the
principal of and interest on the Securities).
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147
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities
and the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities, comply with Article Six or
Section 11.06 of the Indenture, or comply with any requirements of the SEC in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not adversely affect the rights of any Holder of a
Security.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
15. Subordination.
The Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture)
of the Company. The Guarantees are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full of Guarantor Senior Indebtedness (as defined in the Indenture). To the
extent and in the manner provided in the Indenture, Senior Indebtedness, and in
the case of payment by a Subsidiary Guarantor, Guarantor Senior Indebtedness,
must be paid before any payment may be made to any Holder of this Security. Any
Securityholder by accepting this Security agrees to the subordination and
authorizes the Trustee to give it effect.
16. Successors.
When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
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17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest,
including an Accelerated Payment) if it determines that withholding notice is in
their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator,
as such, of the Company shall have any liability for any obligation of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
▇-▇
▇▇▇
▇▇. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be made
to: Dominick's Finer Foods, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer.
B-8
150
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (the
"Indenture") referred to in the Security upon which this notation is endorsed
and each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor person under the Indenture) have unconditionally
guaranteed on a senior subordinated basis (such guarantee by each Subsidiary
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest on the Securities, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Eleven and Article Twelve of the Indenture and (ii) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of each Subsidiary Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth and are expressly subordinated and subject in right of
payment to the prior payment in full of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor, to the extent and in the manner provided, in Article
Eleven and Article Twelve of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Guarantee therein made.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Subsidiary Guarantor shall have any liability
under the Guarantee by reason of his or its status as such stockholder, officer,
director or incorporator.
B-9
151
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
DOMINICK'S FINER FOODS, INC.
OF ILLINOIS,
By: _______________________________
Name:
Title:
Attest: ___________________
▇▇▇▇'▇ OF BLOOMINGDALE, INC.
By: _______________________________
Name:
Title:
Attest: ____________________
▇▇▇▇ HAZELCREST, INC.
By: _______________________________
Name:
Title:
Attest: ____________________
SAVE-IT DISCOUNT FOODS
CORPORATION
By: _______________________________
Name:
Title:
Attest: ___________________
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JERRY'S DEEP DISCOUNT CENTERS,
INC.
By: _______________________________
Name:
Title:
Attest: ____________________
B-11
153
[FORM OF ASSIGNMENT]
I or we assign this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
----------------------------------------------
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
-------------------------- ---------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on
the front of this Security)
Signature Guarantee:
------------------------------------------------------------
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154
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 5.15 or Section 5.16 of the Indenture, check the
appropriate box:
Section 5.15 [ ] Section 5.16 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 5.15 or Section 5.16 of the
Indenture, state the amount:
$
Date:______________ Signature:__________________________________
(Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee:_________________________________________________________
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155
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
United States Trust Company
of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Division
Re: Dominick's Finer Foods, Inc. (the "Company") 10 7/8%
Senior Subordinated Notes due 2005 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated April 27, 1995, relating to the
Securities and such other information as we deem necessary in order to
make our investment decision. We acknowledge that we have read and
agreed to the matters stated in the section entitled "Transfer
Restrictions" of the Offering Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth
in the Indenture dated as of May 4, 1995 relating to the Securities
(the "Indenture") and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
3. We understand that the Securities have not been registered
under the Securities Act, and that the Securities may not be offered or
sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities within three
years after the original issuance of the Securities, we will do so only
(A) to the Company or any subsidiary thereof, (B) inside the United
States in accordance with Rule 144A
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156
under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you a signed letter substantially in the form of this letter, (D)
outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if
available), or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated
herein.
4. We understand that, on any proposed resale of any
Securities, we will be required to furnish to you and the Company such
certification, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Securities purchased by us will bear a legend to the foregoing
effect.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment, as the case may be.
6. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:_________________________________
Authorized Signature
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157
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
___________, ____
United States Trust Company
of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Division
Re: Dominick's Finer Foods, Inc. (the "Company") 10 7/8%
Senior Subordinated Notes due 2005 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
D-1
158
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_________________________________
Authorized Signature
D-2