EXHIBIT 4.1
EXECUTION COPY
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JITNEY-JUNGLE STORES OF AMERICA, INC.
INTERSTATE JITNEY JUNGLE STORES, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
SOUTHERN JITNEY JUNGLE COMPANY
PUMP AND SAVE, INC.
DELTA ACQUISITION CORPORATION
DELCHAMPS, INC.
SUPERMARKET CIGARETTE SALES, INC.
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$200,000,000
103/8% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
DATED AS OF SEPTEMBER 15, 1997
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MARINE MIDLAND BANK
Trustee
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Indenture, dated as of September 15, 1997, among Jitney-Jungle Stores of
America, Inc., a Mississippi corporation, (the "COMPANY"), Interstate
Jitney-Jungle Stores, Inc., an Alabama corporation ("INTERSTATE"),
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation ("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern
Jitney Jungle Company, a Mississippi corporation ("SOUTHERN"), Pump And Save,
Inc., a Mississippi corporation ("PUMP AND SAVE"), Delta Acquisition
Corporation, an Alabama corporation ("DAC"), Delchamps, Inc., an Alabama
corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a Louisiana
corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern, Pump And
Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together with any
Subsidiary of the Company that executes a Subsidiary Guarantee substantially in
the form of EXHIBIT D attached hereto, the "SUBSIDIARY GUARANTORS") and Marine
Midland Bank, as trustee (the "TRUSTEE").
The Company, the Subsidiary Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the holders
of the Company's 103/8% Senior Subordinated Notes due 2007 (the "SENIOR
SUBORDINATED NOTES") and the new 103/8% Senior Subordinated Notes due 2007 (the
"NEW SENIOR SUBORDINATED NOTES" and, together with the Senior Subordinated
Notes, the "NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"1996 MERGER" means the transactions contemplated by the 1996 Merger
Agreement.
"1996 MERGER AGREEMENT" means the Merger Agreement and Plan of Exchange and
Merger, dated as of November 16, 1995, by and among BRS No. 1, Inc. (renamed JJ
Acquisitions Corp.) and the Company, Southern, ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Jitney-Jungle
Bakery, Inc., as amended.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person
and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control. Notwithstanding the foregoing, in no event will the
holders of Indebtedness under or in respect of the Senior Credit Facility (by
reason of holding such Indebtedness) or ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation or any of their respective Affiliates be deemed Affiliates of the
Company or any of its Affiliates.
"AGENT" means any Registrar, Paying Agent or co-registrar.
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"APPLICABLE PROCEDURES" means applicable procedures of the Depositary,
Euroclear or Cedel, as the case may be.
"ASSET SALE" means: (i) the sale, conveyance, transfer or other disposition
of any assets (including, without limitation, by way of a sale and leaseback)
other than sales of inventory in the ordinary course of business (provided that
the sale, conveyance, transfer or other disposition of all or substantially all
of the assets of the Company and its Restricted Subsidiaries taken as a whole
will be governed by the provisions of Sections 3.09, 4.14 and/or 5.01 hereof and
not by the provisions of Section 4.10 hereof) or (ii) the issuance or sale by
the Company or any of its Restricted Subsidiaries of Equity Interests of any of
the Company's Restricted Subsidiaries, in the case of clauses (i) and (ii)
above, whether in a single transaction or a series of related transactions for
net proceeds in excess of $1.0 million. Notwithstanding the foregoing: (i) a
sale, conveyance, transfer or other disposition of assets by the Company to a
Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to
the Company or to another Wholly Owned Restricted Subsidiary; (ii) an issuance
of Equity Interests by a Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary and (iii) a Restricted Payment that
is permitted by Section 4.07 hereof, in each case, shall not be deemed to be
Asset Sales.
"ATTRIBUTABLE DEBT" means, in respect of a sale and leaseback transaction,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"BANKRUPTCY LAW" means title 11, U.S. Code or any similar Federal or state
law for the relief of debtors.
"BOARD OF DIRECTORS" means, unless otherwise specified, the Board of
Directors of the Company or any authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"BORROWING BASE" means 60% of the net book value of all inventory of the
Company and its Restricted Subsidiaries.
"BRS" means Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., Inc.
"BRS MANAGEMENT AGREEMENT" means that certain management agreement, dated
September 8, 1995 between BRS and the Company, as amended on February 29, 1996
and on the date hereof, and as it may be further amended from time to time.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
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"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than one
year from the date of acquisition, (iii) certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any lender party to the Senior Credit Facility or
with any domestic commercial bank having capital and surplus in excess of $500
million and a ▇▇▇▇▇ Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii) above
and (v) commercial paper having the highest rating obtainable from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Services and in each case
maturing within one year after the date of acquisition.
"CEDEL" means Cedel Bank, societe anonyme.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than the Principals, their Related Parties, the DLJ
Entities or their Affiliates, (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the Company consolidates with,
or merges with or into, another "person" (as defined above) in a transaction or
series of related transactions in which the Voting Stock of the Company is
converted into or exchanged for cash, securities or other property, other than
any transaction where (A) the outstanding Voting Stock of the Company is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee corporation and (B) either (1) the "beneficial
owners" (as such term is defined in Rule 13d-3 and 13d-5 under the Exchange Act)
of the voting power of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly through one or more Subsidiaries, not
less than a majority of the total voting power of the Voting Stock of the
surviving or transferee corporation immediately after such transaction or (2) if
immediately prior to such transaction the Company is a direct or indirect
Subsidiary of any other Person (the "Holding Company"), then the "beneficial
owners" (as defined above) of the Voting Stock of such Holding Company
immediately prior to such transaction own, directly or indirectly through one or
more Subsidiaries, not less than a majority of the voting power of the Voting
Stock of the surviving or transferee corporation immediately after such
transaction, (iv) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that (A) the
Principals, their Related Parties, the DLJ Entities or their Affiliates cease to
be the "beneficial owners" (as defined above), directly or indirectly, of at
least 35% of the voting power of the Voting Stock of the Company and (B) any
"person" (as defined above) becomes the "beneficial owner" (as defined above)
(PROVIDED that at any time following the occurrence of a Public Equity Offering,
the term "beneficial owner" shall exclude for such purpose the effect of Rule
13d-3(d)(1), other than any such effect with respect to the Warrants) directly
or indirectly, of more of the voting power of the Voting Stock of the Company
than is at the time "beneficially owned" (as defined above) by the Principals,
their Related Parties, the DLJ Entities and their Affiliates in the aggregate,
or (v) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors. For purposes of
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this definition, any transfer of an equity interest of an entity that was formed
for the purpose of acquiring Voting Stock of the Company will be deemed to be a
transfer of such portion of such Voting Stock as corresponds to the portion of
the equity of such entity that has been so transferred.
"CLASS A PREFERRED STOCK" means the Class A Senior Exchangeable Preferred
Stock, par value $0.01 per share, of the Company.
"CLASS B PREFERRED STOCK" means the Class B Compounding Cumulative
Redeemable Preferred Stock, par value $0.01 per share, of the Company.
"CLASS C PREFERRED STOCK" means the Class C Compounding Cumulative
Preferred Stock, Series 1 and Series 2, par value $0.01 per share, of the
Company.
"COMMON STOCK" means the common stock, par value $.01 per share, of the
Company.
"COMPANY" means Jitney-Jungle Stores of America, Inc., a Mississippi
corporation ("Jitney-Jungle"), unless and until a successor replaces
Jitney-Jungle in accordance with Article 5 hereof, and thereafter includes such
successor.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included to the extent of the amount of dividends or
distributions paid in cash (or converted into cash) to the referent Person or a
Wholly Owned Restricted Subsidiary thereof that is a Subsidiary Guarantor, (ii)
the Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date hereof or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or the giving
of notice or both would become an Event of Default.
"DEFINITIVE NOTES" means Notes that are in the form of EXHIBIT A-1 attached
hereto (but without including the text referred to in footnotes 1 and 3
thereto).
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"DELCHAMPS ACQUISITION" means the Delchamps Merger and the Delchamps Tender
Offer.
"DELCHAMPS MERGER" means the merger contemplated by the Delchamps Merger
Agreement.
"DELCHAMPS MERGER AGREEMENT" means the Agreement and Plan of Merger, dated
July 8, 1997, by and among the Company, Delta Acquisition Corporation and
Delchamps, Inc.
"DELCHAMPS TENDER OFFER" means the tender offer contemplated by the
Delchamps Merger Agreement.
"DEPOSITARY" means, with respect to any Global Note, the Person specified
in Section 2.03 hereof as the Depositary with respect to such Note, until a
successor shall have been appointed and become such pursuant to the applicable
provision of this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
"DESIGNATED SENIOR DEBT" means (i) for so long as any Indebtedness is
outstanding under the Senior Credit Facility or the Senior Notes, any such
Indebtedness, and (ii) any other Senior Debt permitted under this Indenture the
principal amount of which is $25.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
on which the Notes mature.
"DLJ ENTITIES" means DLJ Merchant Banking Partners, L.P., DLJ Offshore
Partners, C.V. and DLJ Merchant Banking Funding, Inc.
"EBITDA" means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period plus (i) an amount equal to any
extraordinary or non-recurring loss plus any net loss realized in connection
with (a) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (b) the dispositions of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries (in the case
of clauses (a) and (b) above, to the extent such losses were deducted in
computing such Consolidated Net Income), plus (ii) provision for taxes based on
income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent that such provision for taxes was included in computing
such Consolidated Net Income, plus (iii) consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
and whether or not capitalized (including, without limitation, amortization of
original issue discount, non- cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financing, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iv) non-cash LIFO charges (credits) of such Person and its
Restricted Subsidiaries for such period, plus (v) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash charges were deducted in computing
such
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Consolidated Net Income, plus (vi) non-recurring severance and transaction costs
incurred in connection with any acquisition, in each case, on a consolidated
basis and determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization and other non-cash charges of, a Restricted Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute EBITDA only
to the extent (and in the same proportion) that the Net Income of such
Restricted Subsidiary was included in calculating the Consolidated Net Income of
such Person.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, the Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE DEBENTURES" means the Company's Class A Exchange Debentures due
2008 issuable (1) in exchange for outstanding shares of Class A Preferred Stock
at the Company's option on the date of any scheduled dividend payment with
respect to the Class A Preferred Stock and (2) as payment of interest with
respect to outstanding Class A Exchange Debentures due 2008, in each case,
pursuant to the indenture related thereto in the form as in effect on the date
hereof.
"EXCHANGE OFFER" means the offer by the Company to Holders to exchange
Senior Subordinated Notes for New Senior Subordinated Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means (i) up to $75.0 million of Indebtedness under
Capital Lease Obligations of the Company and its Restricted Subsidiaries in
existence on the date hereof, (ii) up to $200.0 million in aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries under the
Senior Notes, (iii) up to $13.0 million in aggregate principal amount of other
Indebtedness of the Company and its Restricted Subsidiaries (excluding
Indebtedness under the Senior Credit Facility) in existence on the date hereof
until such amounts are repaid and (iv) up to $16.0 million of Acquired
Indebtedness in connection with the Delchamps Acquisition.
"FIXED CHARGES" means, with respect to any Person for any period, the sum
of (i) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, to the extent such
expense was included in computing Consolidated Net Income (including, without
limitation, amortization of original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers' acceptance
financing, and net payments (if any) pursuant to Hedging Obligations), (ii) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period, (iii) any interest expense on
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries (whether or not such Guarantee or Lien is called
upon) and (iv) the product of (a) all dividend payments, whether or not in cash
(other than dividend payments to the Company or any Restricted Subsidiary and
other than dividend payments on Equity Interests of the Company and its
Restricted Subsidiaries that are paid solely in
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additional shares, or by accretion to the liquidation preference, of such Equity
Interests) on any series of preferred stock of such Person and its Restricted
Subsidiaries, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person and its Restricted Subsidiaries,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the EBITDA of such Person and its Restricted Subsidiaries
for such period to the Fixed Charges of such Person and its Restricted
Subsidiaries for such period. In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness
(other than revolving credit borrowings) or issues preferred stock subsequent to
the commencement of the period for which the Fixed Charge Coverage Ratio is
being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. For purposes of
making the computation referred to above, (i) acquisitions that have been made
by the Company or any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be deemed to have occurred on the first day
of the four-quarter reference period, (ii) the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, and
(iii) the Fixed Charges attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the referent Person
or any of its Restricted Subsidiaries following the Calculation Date.
"FUND" means Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., L.P., a Delaware limited
partnership.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
"GLOBAL NOTES" means the Regulation S Global Notes and the Rule 144A Global
Notes.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
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"HOLDER" means a Person in whose name a Note is registered.
"INCUR" means, with respect to any Indebtedness, to incur, create, issue,
assume, guarantee or otherwise become liable for or with respect to the payment
of, contingently or otherwise, such Indebtedness; PROVIDED that neither the
accrual of interest nor the accretion of original issue discount shall be
considered an incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person and without duplication,
any indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
banker's acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an accrued expense
or trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any indebtedness of any
other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"INDIRECT PARTICIPANT" means a Person who holds an interest through a
Participant.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation and Credit Suisse First Boston.
"INSOLVENCY OR LIQUIDATION PROCEEDINGS" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to the Company or to the creditors
of the Company, as such, or to the assets of the Company, or (ii) any
liquidation, dissolution, reorganization or winding up of the Company, whether
voluntary or involuntary and involving insolvency or bankruptcy, or (iii) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company.
"INSTITUTIONAL ACCREDITED INVESTOR" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP; PROVIDED that an acquisition of assets, Equity
Interests or other securities by the Company for consideration consisting of
common equity securities of the Company shall not be deemed to be an Investment.
"IRB INDEBTEDNESS" means that certain Indebtedness of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co.,
Inc. pursuant to the Industrial Revenue Bond Issue with the City of Jackson,
Mississippi, dated December 1, 1985, evidenced by the Lease recorded in Book
3166 at Page 443 of the Land Records of ▇▇▇▇▇ County, First Judicial District,
Mississippi, including all agreements and documents related thereto.
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"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no additional interest
shall accrue for the intervening period.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
(other than with respect to a lease that does not create a Capital Lease
Obligation) under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"LIQUIDATED DAMAGES" means, at any time of determination, all liquidated
damages then owing pursuant to the terms of the Registration Rights Agreement.
"MANAGEMENT AGREEMENT" means that certain Management Agreement, dated March
19, 1980, between ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., L.P. and the Company, concerning the
management of leased properties.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person and its Restricted Subsidiaries, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends, excluding,
however, (i) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with (a) any Asset
Sale (including, without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries and (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related provision for taxes
on such extraordinary or nonrecurring gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness described in clause (i) of the second paragraph under
Section 4.10) secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness) and (b) is directly or indirectly liable (as a guarantor or
otherwise); and (ii) no default with respect to which (including any rights that
the holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
9
"NOTE CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto, as provided in Section 2.01.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING" means the offering of Notes pursuant to the Offering Memorandum.
"OFFERING MEMORANDUM" means the offering memorandum, dated September 10,
1997, relating to the offering of the Senior Subordinated Notes.
"OFFICER" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, that meets the requirements of Section 13.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"PARI PASSU INDEBTEDNESS" means Indebtedness of the Company or any of its
Restricted Subsidiaries that ranks PARI PASSU in right of payment to the Notes
or any Guarantee thereof.
"PARTICIPANT" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
"PAYMENT IN FULL" (together with any correlative phrases E.G. "PAID IN
FULL" and "PAY IN FULL") means (i) with respect to any Senior Debt other than
Senior Debt under or in respect of the Senior Credit Facility, payment in full
thereof or due provision for payment thereof (x) in accordance with the terms of
the agreement or instrument pursuant to which such Senior Debt was issued or is
governed or (y) otherwise to the reasonable satisfaction of the holders of such
Senior Debt, which shall include, in any Insolvency or Liquidation Proceeding,
approval by such holders, individually or as a class, of the provision for
payment thereof, and (ii) with respect to Senior Debt under or in respect of the
Senior Credit Facility, payment in full thereof in cash or Cash Equivalents.
"PERMITTED BUSINESS" means any of the businesses and any other businesses
related to the businesses engaged in by the Company and its Restricted
Subsidiaries on the date hereof.
"PERMITTED INVESTMENTS" means (a) any Investments in the Company or in a
Restricted Subsidiary of the Company that is a Subsidiary Guarantor; (b) any
Investments in Cash Equivalents; (c) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary of the Company and a
Subsidiary Guarantor or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is a
Subsidiary Guarantor; (d) Restricted Investments made as a result of the receipt
of non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof; and (e) other Investments in any Person
that do not exceed $1.5 million at any time outstanding.
10
"PERMITTED JUNIOR SECURITIES" means Equity Interests in the Company and
debt securities of the Company or any Subsidiary Guarantor that are subordinated
to all Senior Debt (and any debt securities issued in exchange for Senior Debt
of the Company or such Subsidiary Guarantor) to substantially the same extent
as, or to a greater extent than, the Notes or Subsidiary Guarantees, as
applicable, are subordinated to Senior Debt pursuant to the subordination
provisions of this Indenture.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
that is permitted to be incurred by the provisions of this Indenture; PROVIDED,
that, except with respect to Capital Lease Obligations, (i) the principal amount
(or accreted value, as applicable) of, or (with respect to revolving credit
Indebtedness) maximum commitment under, such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, as applicable) of, or
(with respect to revolving credit Indebtedness) maximum commitment under, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of premiums and reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and (other than with respect to
revolving credit Indebtedness) has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by the Company and/or by
a Subsidiary Guarantor.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PREFERRED STOCK" means the Class A Preferred Stock, the Class B Preferred
Stock and the Class C Preferred Stock.
"PRINCIPALS" means (i) the Fund and any of its Affiliates and (ii) Messrs.
▇. ▇. ▇▇▇▇▇▇, ▇▇., ▇. ▇. ▇▇▇▇▇▇ III, Essary, Friou, Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Senior Subordinated Notes in the form set forth in Section 2.06(g) hereof.
"PUBLIC EQUITY OFFERING" means a public offering of common stock of the
Company.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"REDEMPTION DATE" with respect to any Notes, means the date on which such
Notes are redeemed by the Company pursuant to Section 3.07 of this Indenture.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of September 15, 1997, by and among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
11
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTES" means the Regulation S Temporary Global Notes
or the Regulation S Permanent Global Notes as applicable.
"REGULATION S PERMANENT GLOBAL NOTES" means the permanent global notes that
do not contain the paragraphs referred to in footnote 1 to the form of the Note
attached hereto as EXHIBIT A-2, and that are deposited with and registered in
the name of the Depositary or its nominee, representing a series of Notes sold
in reliance on Regulation S.
"REGULATION S TEMPORARY GLOBAL NOTES" means the temporary global notes that
contain the paragraphs referred to in footnote 1 to the form of the Note
attached hereto as EXHIBIT A-2, and that are deposited with and registered in
the name of the Depositary or its nominee, representing a series of Notes sold
in reliance on Regulation S.
"RELATED PARTY" means (i) any controlling stockholder, general partner, 80%
(or more) owned Subsidiary, or spouse or immediate family member (in the case of
an individual) of any Principal or (ii) any trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or Persons
holding an 80% or more controlling interest of which consist solely of one or
more Principals and/or such other Persons referred to in the immediately
preceding clause (i).
"REPRESENTATIVE" means the trustee with respect to the Senior Notes, the
agent with respect to the Senior Credit Facility, or any Person performing a
similar function with respect to other Senior Debt.
"RESPONSIBLE OFFICER" means any officer within the Corporate Trust
Department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED BENEFICIAL INTEREST" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"RESTRICTED BROKER DEALER" has the meaning set forth in the Registration
Rights Agreement.
"RESTRICTED GLOBAL NOTES" means the Regulation S Global Notes and the Rule
144A Global Notes, all of which shall bear the Private Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 144A GLOBAL NOTES" means the permanent global notes that contain the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 3 to the form of the Note attached hereto as EXHIBIT A-1, and that is
deposited with and registered in the name of the Depositary or its nominee,
representing Notes initially sold in reliance on Rule 144A.
12
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR CREDIT FACILITY" means that certain revolving credit agreement,
dated as of March 5, 1996, as amended and restated on or prior to the date
hereof, by and among the Company, each of the Subsidiary Guarantors and the
lenders named therein, and Fleet Capital Corporation, as successor agent to
Fleet Bank, N.A., including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, as it may from time
to time be amended, renewed, supplemented or otherwise modified at the option of
the parties thereto and any other agreement pursuant to which any of the
Indebtedness, commitments, Obligations, costs, expenses, fees, reimbursements
and other indemnities payable or owing thereunder may be refinanced,
restructured, renewed, extended, increased, replaced or refunded, as any such
other agreements may from time to time at the option of the parties thereto be
amended, supplemented, renewed or otherwise modified, in each case, whether or
not with the same agent or lenders.
"SENIOR DEBT" means (i) Indebtedness pursuant to the Senior Credit
Facility, (ii) Indebtedness pursuant to the Senior Notes or guarantees thereof,
as applicable, (iii) the IRB Indebtedness, (iv) any other Indebtedness permitted
to be incurred by the Company or a Restricted Subsidiary under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes or the Subsidiary Guarantees, as applicable, and (v) all
Obligations with respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (w) any liability for
federal, state, local or other taxes owed or owing by the Company or any
Subsidiary Guarantor, (x) any Indebtedness of the Company or any Subsidiary
Guarantor to any of their respective Subsidiaries or other Affiliates, (y) any
trade payables or (z) any Indebtedness that is incurred in violation of this
Indenture.
"SENIOR NOTES" means the 12% Senior Notes of the Company due 2006.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SIGNIFICANT RESTRICTED SUBSIDIARY" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Company or any of
its Restricted Subsidiaries which is by its terms expressly subordinated in
right of payment to the Notes, any Subsidiary Guarantee or any other
Indebtedness that is subordinated in right of payment to the Notes or any
Subsidiary Guarantee.
13
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock 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 such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTORS" means each of (i) Interstate; (b) ▇▇▇▇▇▇▇-▇▇▇▇▇▇;
(c) Southern; (d) Pump And Save; (e) DAC; (f) SCSI and (g) Delchamps and (ii)
any other Subsidiary that executes a Subsidiary Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the Trust Indenture Act of 1939; provided, however, that in the event that
the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"TRANSFER RESTRICTED SECURITIES" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"TRUSTEE" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"UNRESTRICTED GLOBAL NOTES" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company (other
than Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern, Pump And Save, DAC, SCSI and
Delchamps, or any successor to any of them) that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board Resolution and (ii)
any Subsidiary of an Unrestricted Subsidiary; but, in each case, only to the
extent that such Subsidiary: (a) has no Indebtedness other than Non-Recourse
Debt; (b) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and (e)
has at least one director on its board of directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
the Board Resolution giving effect to such designation and an Officers'
Certificate indicating that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
14
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, (ii) no Default or Event of
Default would be in existence immediately following such designation and (iii)
the Company shall have delivered to the Trustee an Officers' Certificate
indicating that such designation complied with the foregoing conditions.
"VOTING STOCK" means, with respect to any Person, any class or series of
capital stock of such Person that is ordinarily entitled to vote in the election
of directors thereof at a meeting of stockholders called for such purpose,
without the occurrence of any additional event or contingency.
"WARRANTS" means the warrants to purchase up to 15% (on a fully diluted
basis) of the common stock, par value $0.01 per share, of the Company dated
March 5, 1996.
"WARRANT SHARES" means the shares of Common Stock issuable upon the
exercise of the Warrants.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person, or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
"AFFILIATE TRANSACTION"................................................4.11
"ASSET SALE OFFER".....................................................4.10
"CHANGE OF CONTROL OFFER"..............................................4.14
"CHANGE OF CONTROL PAYMENT"............................................4.14
"CHANGE OF CONTROL PAYMENT DATE".......................................4.14
"COVENANT DEFEASANCE"..................................................8.03
"CUSTODIAN"............................................................6.01
"DTC"..................................................................2.03
"EVENT OF DEFAULT".....................................................6.01
"EXCESS PROCEEDS"......................................................4.10
"INCUR"................................................................4.09
"LEGAL DEFEASANCE".....................................................8.02
"OFFER AMOUNT".........................................................3.09
15
"OFFER PERIOD".........................................................3.09
"PAYING AGENT".........................................................2.03
"PAYMENT DEFAULT"......................................................6.01
"PERMITTED DEBT".......................................................4.09
"PURCHASE DATE"........................................................3.09
"REGISTRAR"............................................................2.03
"REPURCHASE OFFER".....................................................3.09
"RESTRICTED PAYMENTS"..................................................4.07
"SUBSIDIARY GUARANTEES"...............................................11.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company, each Subsidiary Guarantor
and any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by the Commission rule under the
TIA have the meanings so assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
16
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A-1 or EXHIBIT A-2 attached hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes initially shall be issued in denominations of $1,000
and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company, the Subsidiary
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(a) GLOBAL NOTES. Notes offered and sold to QIBs in reliance on Rule
144A shall be issued initially in the form of Rule 144A Global Notes, which
shall be deposited on behalf of the purchasers of the Notes represented thereby
with a custodian of the Depositary, and registered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of the
Rule 144A Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee
as hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The "40-DAY RESTRICTED
PERIOD" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Notes (except to the
extent of any beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a Rule 144A Global
Note, all as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers'
Certificate from the Company certifying as to the same matters covered in clause
(i) above. Following the termination of the 40-day restricted period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication
of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Notes. The aggregate principal amount of the Regulation S
Temporary Global Notes and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers
17
of interests. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to
Rule 144A Global Notes and Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note 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 Depositary or impair, as between the Depositary and its
Participants, the operation of customary practices of such Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global
Note.
(c) DEFINITIVE NOTES. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture. The form of Trustee's certificate of
authentication to be borne by the Notes shall be substantially as set forth in
EXHIBIT A-1 or EXHIBIT A-2 hereto.
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The Trustee shall, upon a written order of the Company signed by an
Officer directing the Trustee to authenticate the Notes, authenticate Notes for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Notes. The Trustee shall, upon written order of the Company signed by an
Officer, authenticate New Senior Subordinated Notes for original issuance in
exchange for a like principal amount of Senior Subordinated Notes exchanged in
the Exchange Offer or otherwise exchanged for New Senior Subordinated Notes
pursuant to the terms of the Registration Rights Agreement. The aggregate
principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount stated in paragraph 4 of the Notes, except as provided in
Section 2.07 hereof.
The Trustee may (at the Company's expense) appoint an authenticating
agent acceptable to the Company to authenticate Notes. An authenticating agent
may authenticate Notes 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 or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii) an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes. The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
with respect to the Definitive Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes, and shall
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon the
occurrence of events specified in Section 6.01(h) and (i) hereof, the Trustee
shall serve as Paying Agent for the Notes.
19
SECTION 2.05. HOLDER 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company and/or the Subsidiary Guarantors shall furnish
to the Trustee at least seven (7) Business Days 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 the Holders of Notes and the Company and the Subsidiary
Guarantors shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES. The
transfer and exchange of beneficial interests in Global Notes shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in subsection (g) of this
Section 2.06 or in an Unrestricted Global Note in accordance with subsection
(g)(iv). Transfers of beneficial interests in the Global Notes to Persons
required to take delivery thereof in the form of an interest in another Global
Note shall be permitted as follows:
(i) RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE. If, at any
time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as custodian
for the Depositary) wishes to transfer its beneficial interest in
such Rule 144A Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in
a Regulation S Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Regulation S
Global Note as provided in this Section 2.06(a)(i). Upon receipt
by the Trustee of (1) instructions given in accordance with the
Applicable Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the
Depositary and the Euroclear or Cedel account to be credited with
such increase, and (3) a certificate in the form of EXHIBIT B-1
hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of the applicable Rule 144A Global
Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S
Global Note by the principal amount at maturity of the beneficial
interest in the Rule 144A Global Note to be exchanged or
transferred, to credit or cause to be credited to the account of
the Person specified in such instructions, a beneficial interest
in the Regulation S Global Note equal to the reduction in the
aggregate principal amount at maturity of the Rule 144A Global
Note, and to debit, or
20
cause to be debited, from the account of the Person making such
exchange or transfer the beneficial interest in the Rule 144A
Global Note that is being exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If, at any
time, after the expiration of the 40-day restricted period, an
owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes to transfer its beneficial interest in
such Regulation S Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in
a Rule 144A Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Rule 144A
Global Note as provided in this Section 2.06(a)(ii). Upon receipt
by the Trustee of (1) instructions from Euroclear or Cedel, if
applicable, and the Depositary, directing the Trustee, as
Registrar, to credit or cause to be credited a beneficial
interest in the Rule 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged, such
instructions to contain information regarding the Participant
account with the Depositary to be credited with such increase,
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant
account of the Depositary and (3) a certificate in the form of
EXHIBIT B-2 attached hereto given by the owner of such beneficial
interest stating (A) if the transfer is pursuant to Rule 144A,
that the Person transferring such interest in a Regulation S
Global Note reasonably believes that the Person acquiring such
interest in a Rule 144A Global Note is a QIB and is obtaining
such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B) that the
transfer complies with the requirements of Rule 144 under the
Securities Act, (C) if the transfer is to an Institutional
Accredited Investor that such transfer is in compliance with the
Securities Act and a certificate in the form of EXHIBIT C
attached hereto and, if such transfer is in respect of an
aggregate principal amount of less than $250,000, an Opinion of
Counsel acceptable to the Company that such transfer is in
compliance with the Securities Act or (D) if the transfer is
pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and
in accordance with the requirements of the exemption claimed,
such statement to be supported by an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to the
Company and to the Registrar and in each case, in accordance with
any applicable securities laws of any state of the United States
or any other applicable jurisdiction, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be
reduced the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be increased
the aggregate principal amount at maturity of the applicable Rule
144A Global Note by the principal amount at maturity of the
beneficial interest in the Regulation S Global Note to be
exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
applicable Rule 144A Global Note equal to the reduction in the
aggregate principal amount at maturity of such Regulation
21
S Global Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial
interest in the Regulation S Global Note that is being exchanged
or transferred.
(b) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes are
presented by a Holder to the Registrar with a request to register the transfer
of the Definitive Notes or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested only if:
(i) the Definitive Notes are presented or surrendered for
registration of transfer or exchange, endorsed and containing a
signature guarantee or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney and contains a signature
guarantee, duly authorized in writing; and
(ii) in the case of Definitive Notes that are Transfer Restricted
Securities, the Registrar has received the following
documentation, as applicable (all of which may be submitted by
facsimile):
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company or any of its
Subsidiaries, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto); or
(B) if such Transfer Restricted Security is being transferred to
a QIB in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certification to
that effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto);
(D) if such Transfer Restricted Security is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto), a
certification substantially in the form of EXHIBIT C hereto,
and, if such transfer is in respect of an aggregate
principal amount of Notes of less than $250,000, an Opinion
of Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the
22
form of EXHIBIT B-3 hereto) and an Opinion of Counsel from
such Holder or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RULE 144A GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE FOR A DEFINITIVE NOTE.
(i) Any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial
interest for a Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary (or Euroclear or Cedel, if
applicable), from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Rule 144A Global Note or
Regulation S Permanent Global Note, and, in the case of a
Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial
owner, a certification to that effect from such Person (in
substantially the form of EXHIBIT B-4 hereto);
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of EXHIBIT B-4 hereto);
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certification to
that effect from the transferor (in substantially the form
of EXHIBIT B-4 hereto);
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements of
the Securities Act (and based on an Opinion of Counsel if
the Company so requests), a certification to that effect
from such Holder (in substantially the form of EXHIBIT B-4
hereto) and a certificate from the applicable transferee (in
substantially the form of EXHIBIT C hereto); or
(E) if such beneficial interest is being transferred in reliance
on any other exemption from the registration requirements of
the Securities Act, a certification to that effect from the
transferor (in substantially the form of EXHIBIT B-4 hereto)
and an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance
with the Securities Act, in which case the Trustee or the
Note Custodian, at the direction of the Trustee, shall, in
accordance with the standing
23
instructions and procedures existing between the Depositary
and the Note Custodian, cause the aggregate principal amount
of Rule 144A Global Notes or Regulation S Permanent Global
Notes, as applicable, to be reduced accordingly and,
following such reduction, the Company shall execute and, the
Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest in
a Rule 144A Global Note or Regulation S Permanent Global Note, as
applicable, pursuant to this Section 2.06(c) shall be registered
in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or Indirect
Participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Following any such
issuance of Definitive Notes, the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global
Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(e) TRANSFER AND EXCHANGE OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST
IN A GLOBAL NOTE. When a Definitive Note is presented by a Holder to the
Registrar with a request to register the transfer of the Definitive Note to a
Person who is required or permitted to take delivery thereof in the form of an
interest in a Global Note, or to exchange such Definitive Note for an equal
interest in a Global Note, the Registrar shall register the transfer or make the
exchange as requested only if (i) the Definitive Note is presented or
surrendered for registration of transfer or exchange, endorsed and containing a
signature guarantee or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney
and contains a signature guarantee, duly authorized in writing and (ii) in the
case of Definitive Notes that are Transfer Restricted Securities (other than
Transfer Restricted Securities that are being exchanged or transferred in
accordance with the transfer restrictions set forth in subsection (g)(iv) of
this Section 2.06), the Registrar has received the following documentation, as
applicable (all of which may be submitted by facsimile):
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company or any of its
Subsidiaries, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto); or
(B) if such Transfer Restricted Security is being transferred to
a QIB in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
24
(C) if such Transfer Restricted Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certification to
that effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto);
(D) if such Transfer Restricted Security is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto), a
certification substantially in the form of EXHIBIT C hereto,
and, if such transfer is in respect of an aggregate
principal amount of Notes of less than $250,000, an Opinion
of Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
The Trustee shall (or, if at any time the Trustee ceases to be the
Registrar, shall upon receipt from the Registrar of written notification that
the foregoing documentation has been received by the Registrar) cancel the
Definitive Note, increase or cause to be increased the aggregate principal
amount of the appropriate Global Note.
(f) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF DEPOSITARY. If at
any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days
after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) LEGENDS.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in
substantially the following form:
25
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IS OTHERWISE
PERMITTED TO PURCHASE THE NOTES PURSUANT TO THE REQUIREMENTS
OF CLAUSE (2) BELOW, (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
26
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth in
(i) above and rescind any restriction on the transfer of
such Transfer Restricted Security upon receipt of a
certification from the transferring holder substantially in
the form of EXHIBIT B-4 hereto, indicating paragraph number
three or four; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof; PROVIDED, HOWEVER, that with
respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note for
a Definitive Note that does not bear the legend set forth in
(i) above, which request is made in reliance upon Rule 144,
the Holder thereof shall certify in writing to the Registrar
that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of EXHIBIT B-4
hereto, indicating paragraph number three or four).
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions
pursuant to Rule 144A or Rule 144 under the Securities Act) in
which the Holder or the transferee provides an Opinion of Counsel
to the Company and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion of
Counsel shall also state that the transfer restrictions contained
in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth in
(i) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in aggregate principal amount equal to the principal amount
of the Restricted Beneficial Interests tendered for acceptance by
Persons that certify in the applicable letter of transmittal that
they (x) are acquiring the Notes in the ordinary course of
business, (y) are not participating in the distribution of the
Notes and (z) are not affiliates (as defined in Rule 144) of the
Company and accepted for exchange in the Exchange Offer and (ii)
Definitive Notes that do not
27
bear the Private Placement Legend in an aggregate principal
amount equal to the principal amount of the Definitive Notes
accepted for exchange in the Exchange Offer, subject to delivery
by such Person of the certification described in clause (i).
Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly and the Company shall
execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in any Global Note has been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 4.10, 4.14 and 9.05 hereto).
(iii) All Global Notes and Definitive Notes issued upon
anyregistration of transfer or exchange of Global Notes
or Definitive Notes shall be the valid obligations of
the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(iv) The Registrar shall not be required:(A) to issue, to
register the transfer of or to exchange Notes during a
period beginning at the opening of fifteen (15)
Business Days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part,
or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding
interest payment date.
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(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of
and interest on such Notes and for all other purposes,
and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by an Officer of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or any Subsidiary Guarantor or an Affiliate of
the Company or any Subsidiary Guarantor holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Subsidiary Guarantor, or by any Affiliate of the Company or any
Subsidiary Guarantor, shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes a Responsible
Officer of the Trustee knows are so owned shall
29
be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired
by the Company or any Subsidiary Guarantor or an Affiliate of the Company or any
Subsidiary Guarantor pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by such entity until legal title to
such Notes passes to such entity.
SECTION 2.10. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by an Officer of the Company. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall upon receipt of a written order
of the Company signed by an Officer authenticate Definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder or which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.07 hereof, the Company may
not issue new Notes to replace Notes that it has redeemed or paid or that have
been delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a written order, signed by an Officer of the Company, the
Company shall direct that cancelled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company or any Subsidiary Guarantor defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall be
at the earliest practicable date but in all events at least five (5) Business
Days prior to the payment date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall fix or cause to be fixed each
such special record date and payment date, and shall promptly thereafter, notify
the Trustee of any such date. At least fifteen (15) days before the special
record date, the Company (or the Trustee, in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of the
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA
Section 316 (c).
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SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and if it does
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 Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date (unless a shorter period
is acceptable to the Trustee) an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If the Company is required to make an offer to purchase Notes pursuant to
Section 4.10 or 4.14 hereof, it shall furnish to the Trustee, at least 45 days
before the scheduled purchase date, an Officers' Certificate setting forth (i)
the section of this Indenture pursuant to which the offer to purchase shall
occur, (ii) the terms of the offer, (iii) the principal amount of Notes to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that (a) the Company or one its
Subsidiaries has affected an Asset Sale and there are Excess Proceeds
aggregating more than $15.0 million or (b) a Change of Control has occurred, as
applicable.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such other method as the Trustee shall deem fair and appropriate; PROVIDED
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
will cease to accrue on Notes or portions thereof called for redemption.
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SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued interest, and
Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion shall be
issued upon surrender of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called
for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price plus accrued and unpaid interest and Liquidated
Damages, if any, to such date. A notice of redemption may not be conditional.
32
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or the
date on which Notes must be accepted for purchase pursuant to Section 4.10 or
4.14, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Company upon
its written request any money deposited with the Trustee or the Paying Agent by
the Company in excess of the amounts necessary to pay the redemption price of
(including any applicable premium), accrued interest and Liquidated Damages, if
any, on all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or Change
of Control Offer are paid or if the Company has deposited with the Trustee or
Paying Agent money sufficient to pay the redemption or purchase price of, unpaid
and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
or purchased, on and after the redemption or purchase date interest and
Liquidated Damages, if any, shall cease to accrue on the Notes or the portions
of Notes called for redemption or tendered and not withdrawn in an Asset Sale
Offer or Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered). If a Note is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest and Liquidated Damages, if any, shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal and Liquidated Damages, if any, from the redemption or purchase date
until such principal and Liquidated Damages, if any, is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case, at the
rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as provided in the following paragraph, the Notes will not be
redeemable at the Company's option prior to September 15, 2002. Thereafter, the
Notes will be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on September 15 of the years indicated below:
YEAR PERCENTAGE
2002..........................................................105.188%
2003..........................................................103.458%
2004..........................................................101.729%
2005 and thereafter...........................................100.000%
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(b) Notwithstanding the foregoing, at any time prior to September 15, 2000
the Company may on any one or more occasions redeem up to 33 1 3% of the
aggregate principal amount of Notes originally issued in the Offering at a
redemption price of 110.375% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
with the net proceeds of one or more Public Equity Offerings; PROVIDED that at
least 66 2 3% of the original aggregate principal amount of Notes remains
outstanding immediately after the occurrence of each such redemption; and
PROVIDED, further, that each such redemption shall occur within 120 days of the
date of the closing of the Public Equity Offering to which it relates.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 3.09, 4.10 and 4.14 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.09. REPURCHASE OFFERS.
In the event that the Company shall be required to commence an offer to all
Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section 4.10
hereof, an Asset Sale Offer, or pursuant to Section 4.14 hereof, a Change of
Control Offer, the Company shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 30 days and no later than
60 days after a Change of Control (unless the Company is not required to make
such offer pursuant to Section 4.14(c) hereof) or an Asset Sale Offer shall be
required to be made pursuant to Section 4.10, as the case may be, and remain
open for a period of twenty (20) Business Days following its commencement and no
longer, except to the extent that a longer period is required by applicable law
(the "Offer Period"). On a date specified in the notice of such Repurchase
Offer, which shall be no later than five (5) Business Days after the termination
of the Offer Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.10
hereof, in the case of an Asset Sale Offer, or 4.14 hereof, in the case of a
Change of Control Offer (the "Offer Amount") or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be
made to all Holders. The notice, which shall govern the terms of the Repurchase
Offer, shall describe the transaction or transactions that constitute the Change
of Control or Asset Sale Offer, as the case may be, and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section 3.09
and Section 4.10 or 4.14 hereof, as the case may be, and the length of time
the Repurchase Offer shall remain open;
34
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered and accepted for payment shall continue to
accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Liquidated Damages, if any, after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note,
duly completed, or to transfer their interest in such Note by book-entry
transfer, to the Company, the Depositary, or the Paying Agent at the
address specified in the notice not later than the close of business on the
last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a PRO RATA basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depository, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three (3)
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, plus any accrued and unpaid interest and
Liquidated Damages, if any, thereon, and the Company shall promptly issue a new
Note, and the Trustee, shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Repurchase
Offer on the Purchase Date.
35
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Company shall pay all Liquidated Damages, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement. Principal, premium and Liquidated Damages, if any, and interest,
shall be considered paid for all purposes hereunder on the date the Paying Agent
(if other than the Company or a Subsidiary thereof) holds, as of 10:00 a.m. (New
York City time) money deposited by the Company in immediately available funds
and designated for and sufficient to pay all such principal, premium and
Liquidated Damages, if any, and interest, then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written 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 Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes 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 shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
36
SECTION 4.03. COMMISSION REPORTS.
So long as required to do so under the Exchange Act, the Company shall file
with the Commission and distribute to the Holders copies of the quarterly and
annual financial information required to be filed with the Commission pursuant
to the Exchange Act. All such financial information shall include consolidated
financial statements (including footnotes) prepared in accordance with GAAP.
Such annual financial information shall also include an opinion thereon
expressed by an independent accounting firm of established national reputation.
All such consolidated financial statements shall be accompanied by a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its Restricted Subsidiaries. In addition, whether or not
required by the rules and regulations of the Commission, so long as any Notes
are outstanding, the Company shall furnish to the Holders (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that complies with the rules and
regulations of the Commission and that describes the financial condition and
results of operations of the Company and its Restricted Subsidiaries and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the rules
and regulations of the Commission, the Company will submit a copy of all such
information and reports to the Commission for public availability (unless the
Commission will not accept such materials) and make such information available
to prospective investors upon written request. In addition, during any period in
which the Company is not subject to the reporting requirements of the Exchange
Act, the Company shall furnish to Holders and prospective purchasers of the
Notes the information required by Rule 144A(d)(4) under the Securities Act. The
Company and each Subsidiary Guarantor shall at all times comply with TIA Section
314(a).
The financial information to be distributed to Holders of Notes shall be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar, within 120 days after the end
of the Company's fiscal years and within 60 days after the end of each of the
first three quarters of each such fiscal year.
The Company shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information and, if requested by the
Company, the Trustee will deliver such reports to the Holders under this Section
4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company and each Subsidiary Guarantor shall deliver to the Trustee,
within 90 days after the end of each fiscal year of the Company (which shall be
the Saturday nearest April 30 unless the Company otherwise notifies the Trustee
in writing), an Officers' Certificate stating (i)(A) that, in the course of the
performance by the signatories thereto of their duties as Officers of the
Company, they would normally have knowledge of any Default or Event of Default,
(B) whether or not such signatories know of any Default or Event of Default that
occurred during such period and (C) if any Default or Event of Default has
occurred during such period, the nature of such Default or Event of Default, its
status and what action the Company is taking or proposes to take in respect
thereto and (ii) that to the best of his or her knowledge no event has occurred
and remains in existence by reason of which payments on account of the principal
of or interest, if any, on the Notes are prohibited or if such event has
occurred,
37
a description of the event and what action the Company is taking or proposes to
take with respect thereto.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, in connection with the year-end
financial statements delivered pursuant to Section 4.03 hereof, the Company
shall use its best efforts to deliver a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article Four or
Section 5.01 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation. In the event that such
written statement of the Company's independent public accountants cannot be
obtained, the Company shall deliver an Officers' Certificate certifying that it
has used its best efforts to obtain such statements and was unable to do so.
The Company shall, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency all material taxes, assessments and governmental levies,
except such as are contested in good faith and by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Subsidiary Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Restricted Subsidiary of the Company
that is a Subsidiary Guarantor) on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including in connection with a merger
or consolidation); (ii) purchase, redeem or otherwise acquire or retire for
value any outstanding Equity Interests of the Company or any Affiliate of the
Company (other than any such Equity Interests owned by the Company or any Wholly
Owned Restricted Subsidiary of the Company that is a Subsidiary Guarantor);
(iii) make any principal payment on, or purchase, redeem, defease or otherwise
acquire or retire for value, prior to any scheduled principal payment, any
sinking fund date or its
38
scheduled maturity date, any Indebtedness that is subordinated to the Notes or
the Subsidiary Guarantees; (iv) make any Restricted Investment or (v) make any
payment pursuant to the BRS Management Agreement (all such payments and other
actions set forth in clauses (i) through (v) above being collectively referred
to as "Restricted Payments"), unless:
(a) at the time of and after giving effect to such Restricted
Payment, no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries
after the date hereof (excluding Restricted Payments permitted by clauses
(o), (s)(ii), (x) and (y) of the next succeeding paragraph), is less than
the sum of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the date hereof to the end of the Company's
most recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds (or non-cash
proceeds when converted into cash) received by the Company in the form of
capital contributions or from the issue, sale or exercise since the date
hereof of Equity Interests of the Company or of debt securities of the
Company that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date hereof is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (B) the initial amount of such Restricted
Investment, plus (iv) 50% of the excess, if any, of the cash received upon
the sale or other disposition of a Restricted Investment over the amount
described in clause (iii) above.
The foregoing provisions shall not prohibit: (o) any repurchase, redemption
or retirement for value of Capital Stock of a Restricted Subsidiary of the
Company deemed to occur upon the merger of such Restricted Subsidiary with or
into the Company or another Wholly Owned Restricted Subsidiary of the Company
within one year following the date on which such merged Restricted Subsidiary
became a Restricted Subsidiary of the Company; (p) acquisition and retirement by
the Company of any Class B Preferred Stock in satisfaction of any claim by the
Company for indemnity pursuant to the 1996 Merger Agreement; (q) retirement of
the Class A Preferred Stock in connection with the issuance by the Company of
the Exchange Debentures; (r) the payment of cash in lieu of the issuance of (A)
fractional shares of common stock upon exercise of the Warrants and (B) any
Exchange Debenture that is not an integral multiple of $1,000 upon any exchange
of Class A Preferred Stock for Exchange Debentures; (s) the amendment of the BRS
Management Agreement to permit the payment of, and the payment of, fees to BRS
or any Affiliate of BRS (i) under the BRS Management Agreement after the end of
each fiscal quarter in an amount not to exceed the greater of (a) $250,000 or
(b) 1.0% of the Company's EBITDA for such fiscal quarter (PROVIDED, that the
total amount of all such payments shall not exceed in any fiscal year the
greater of (x) $1.0 million or (y) one percent of the Company's EBITDA for such
fiscal year)
39
and (ii) in connection with the Delchamps Acquisition in an amount not to exceed
$5.0 million in the aggregate; (t) the payment of dividends on the Company's
capital stock, following the first Public Equity Offering after the date hereof,
of up to 6.0% of the aggregate proceeds to the Company in such Public Equity
Offering, other than a public offering with respect to the Company's common
stock registered on Form S-8; (u) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions hereof; (v) the repurchase of
the Class A Preferred Stock in accordance with the terms thereof upon the
occurrence of a Change of Control; (w) the redemption of Exchange Debentures in
accordance with the terms thereof upon the occurrence of a Change of Control;
(x) the redemption, repurchase, retirement or other acquisition of any Equity
Interests of the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of other Equity Interests of the Company (other than any Disqualified
Stock); PROVIDED that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c) (ii) of the preceding paragraph; (y) the defeasance,
redemption, repurchase, retirement or other acquisition of Subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of Equity Interests of the Company (other
than Disqualified Stock); PROVIDED that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, defeasance, retirement or
other acquisition shall be excluded from clause (c) (ii) of the preceding
paragraph; and (z) the repurchase, redemption, defeasance or other acquisition
or retirement for value of any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by any member of the Company's (or any of its
Restricted Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date hereof
or any other option plan adopted by the Board of Directors of the Company;
PROVIDED that the aggregate price paid for all such repurchased, redeemed,
defeased, acquired or retired Equity Interests shall not exceed $2.0 million in
any twelve-month period plus (i) the aggregate cash proceeds received by the
Company during such twelve-month period from any issuance of Equity Interests by
the Company to members of management of the Company and its Restricted
Subsidiaries and (ii) the proceeds of any insurance policy to the extent applied
toward such repurchase, redemption, defeasance or other acquisition or
retirement for value of such Equity Interests; PROVIDED, that with respect to
clause (z) above, no Default or Event of Default shall have occurred and be
continuing immediately after such transaction.
As of the date hereof, all of the Company's Subsidiaries shall be
Restricted Subsidiaries. The Board of Directors may designate any Restricted
Subsidiary (other than Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern, Pump And Save, DAC,
Delchamps and SCSI) to be an Unrestricted Subsidiary if such designation would
not cause a Default. For purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to the extent
repaid in cash) in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under the first paragraph of this covenant. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the greater of (x) the net book value of such Investments at the time
of such designation and (y) the fair market value of such Investments at the
time of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced by a Board Resolution delivered to the Trustee) on the
date of the Restricted Payment of the asset(s) proposed to be transferred by the
Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. Not later than the date of making any Restricted Payment,
the Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting
40
forth the basis upon which the calculations required by this Section 4.07 were
computed, which calculations may be based upon the Company's latest available
internal financial statements.
SECTION 4.08. DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i)(a) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or (b) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries, except (in each case) for such encumbrances
or restrictions existing under or by reason of:
(a) the Existing Indebtedness as in effect on the date hereof;
(b) the Senior Credit Facility, as in effect as of the date
hereof, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings
thereof; PROVIDED that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive in the aggregate than those
contained in the Senior Credit Facility, as in effect on the date
hereof;
(c) this Indenture, the Subsidiary Guarantees and the Notes;
(d) applicable law;
(e) any instrument governing Capital Stock or Indebtedness of any
Person acquired by the Company or any of its Restricted Subsidiaries,
as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with, or in contemplation
of, such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person,
other than the Person, or the properties or assets of the Person, so
acquired;
(f) customary non-assignment and subletting provisions in leases
and other contracts entered into in the ordinary course of business
and consistent with past practices;
(g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (iii) above on the property so acquired;
(h) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more
41
restrictive in the aggregate than those contained in the agreements
governing the Indebtedness being refinanced;
(i) contractual encumbrances or restrictions in effect on the
date hereof;
(j) mortgage or construction financing that imposes restrictions
on the real property acquired or improved;
(k) contracts for the sale of assets that include customary
restrictions concerning the disposition of property;
(l) secured Indebtedness permitted by this Indenture that limits
the right to dispose of the assets securing the Indebtedness; and
(m) encumbrances or restrictions imposed by any amendments to the
contracts, agreements or obligations referred to in clauses (a)
through (l) above if not more restrictive in the aggregate than under
existing contracts.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) and the Company shall not issue and shall not permit any of its
Restricted Subsidiaries to issue any Disqualified Stock (other than the
Preferred Stock); PROVIDED, however, that the Company or its Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been (A) at least 2.25 to 1.0 if such date is prior to September 15, 2000
and (B) 2.50 to 1.0 if such date is on or after September 15, 2000, in each case
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The foregoing provisions will not apply to:
(i) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness and reimbursement obligations in respect of
letters of credit pursuant to the Senior Credit Facility (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries
thereunder) in an aggregate principal amount not to exceed an amount equal
to (x) the greater of (1) the amount of the Borrowing Base and (2) $150.0
million less the aggregate amount of all Net Proceeds of Asset Sales
applied to permanently reduce the total commitments with respect to such
Indebtedness pursuant to Section 4.10 hereof plus (y) $50.0 million less
any outstanding Indebtedness incurred pursuant to clause (viii) below;
(ii) the incurrence by the Company or any of its Restricted
Subsidiaries of the Existing Indebtedness;
42
(iii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by the Notes and the Subsidiary
Guarantees;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage or construction financing or purchase money obligations, in each
case incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount not to exceed $30.0 million in any fiscal year; PROVIDED
that the principal amount (or, in the case of a Capital Lease Obligation,
the amount required to be capitalized on a balance sheet under GAAP) of
such Indebtedness when incurred shall not exceed the purchase price and/or
actual cost of construction or improvement, as the case may be, to which
such incurrence relates;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund, Indebtedness that was permitted by this Indenture to be
incurred;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Wholly Owned Restricted Subsidiaries; PROVIDED, however, that
(i) any subsequent issuance or transfer (other than for security purposes)
of Equity Interests that results in any such Indebtedness being held by a
Person other than a Wholly Owned Restricted Subsidiary and (ii) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any
other clause of this paragraph) in an aggregate principal amount at any
time outstanding not to exceed $50.0 million less the amount of any
Indebtedness incurred pursuant to clause (i)(y) of this paragraph;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Indebtedness, PROVIDED that such Indebtedness (A)
is not incurred in contemplation of the acquisition to which it relates and
(B) is nonrecourse to the Company and its Restricted Subsidiaries, or to
any of their respective assets (other than the acquired Subsidiary and its
Subsidiaries, or the acquired assets, as applicable);
(x) the incurrence by the Company of Indebtedness pursuant to
Exchange Debentures described under clause (2) of the definition of
Exchange Debentures;
(xi) the Guarantee of any Indebtedness otherwise permitted to be
incurred pursuant to this Indenture; and
(xii) Obligations in respect of performance and surety bonds.
43
SECTION 4.10. ASSETS SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a Board
Resolution delivered to the Trustee) of the assets or Equity Interests issued or
sold or otherwise disposed of; and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; PROVIDED that the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance sheet
or in the notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or any guarantee
thereof) that are assumed by the transferee of any such assets and (y) any notes
or other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are immediately converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision and PROVIDED further that (1)
the 75% limitation referred to above shall not apply to any Asset Sale in which
the cash or Cash Equivalents portion of the consideration received therefor,
determined in accordance with the foregoing proviso, is equal to or greater than
what the net after-tax proceeds would have been had such Asset Sale complied
with the aforementioned 75% limitation and (2) the provisions of clauses (i) and
(ii) above shall not apply to any sale or other disposition of assets required
pursuant to a consent order or other agreement entered into by the Company with
the Federal Trade Commission or the Department of Justice in connection with the
Delchamps Acquisition.
Within 435 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or its Restricted Subsidiary, as the case may be, may apply such Net
Proceeds by (i) permanently reducing Indebtedness under the Senior Credit
Facility (and correspondingly reducing commitments with respect thereto) or
other Senior Debt, (ii) investing (or entering into a binding commitment to
invest) in any one or more business, capital expenditure or other tangible
asset, in each case in the same line of business as the Company or its
Restricted Subsidiaries was engaged in on the date hereof or a line of business
reasonably related thereto, (iii) investing (or entering into a binding
commitment to invest) in properties or assets that replace the properties and
assets that are the subject of such Asset Sale and (iv) in the case of a sale of
a store or stores, deeming such Net Proceeds to have been applied to the extent
of any capital expenditures made to acquire or construct another store within
435 days preceding the date of the Asset Sale; PROVIDED that if such Net
Proceeds are applied by entering into a binding commitment under clause (ii) or
(iii) above, then the investment contemplated by such commitment shall be made
no later than 45 days following the end of such 435 day period. Pending the
final application of any such Net Proceeds, the Company or its Restricted
Subsidiary, as the case may be, may temporarily reduce Indebtedness under the
Senior Credit Facility or otherwise invest such Net Proceeds in any manner that
is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company shall be required to make an offer
to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds, at a price in cash
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in this Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the aggregate amount of Excess Proceeds, the Company or its Restricted
Subsidiary, as the case may be, may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the aggregate amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased in accordance with the terms
of this Indenture. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
44
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make any contract, agreement, understanding, loan, advance or Guarantee with,
or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to
the Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $1.0
million, a Board Resolution certifying that such Affiliate Transaction or series
of related Affiliate Transactions complies with clause (i) above and that such
Affiliate Transaction or series of related Affiliate Transactions has been
approved by a majority of the disinterested members of the Board of Directors
and (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million (other
than Affiliate Transactions in the ordinary course of business of the Company
and its Restricted Subsidiaries between or among the Company or any Restricted
Subsidiary of the Company and any Person providing goods and/or services to the
Company or any Restricted Subsidiary in the ordinary course of business that is
an Affiliate of the Company or such Restricted Subsidiary solely by virtue of
the fact that the Fund, or any Person controlling the Fund, directly or
indirectly controls both the Company or such Restricted Subsidiary and such
Affiliate; PROVIDED, however, that such Affiliate Transaction shall comply with
clause (i) above), an opinion as to the fairness to the Company or such
Restricted Subsidiary of such Affiliate Transaction from a financial point of
view issued by an independent nationally recognized investment banking or
appraisal firm experienced in the appraisal or similar review of similar types
of transactions (or if an opinion is unavailable as to the fairness from a
financial point of view of any transaction for which a fairness opinion is not
customarily rendered then an opinion that such transaction meets the
requirements of clause (i) above); PROVIDED that (u) payments by Delchamps
pursuant to change of control agreements with certain employees of Delchamps in
an amount not to exceed $13.0 million, (v) payments to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., L.P.
in accordance with the terms of the Management Agreement in an amount not to
exceed $100,000 in each fiscal year, (w) the 18 leases described in the Offering
Memorandum under the caption "Certain Transactions--Leases of Certain Stores and
Facilities," (x)(1) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries and (2) payment of employee benefits, including
bonuses, retirement plans and stock options, in each case, in the ordinary
course of business and consistent with the past practice of the Company or such
Restricted Subsidiary, (y) transactions between or among the Company and/or its
Restricted Subsidiaries and (z) transactions permitted by the provisions of
Section 4.07 hereof, in each case, shall not be deemed Affiliate Transactions.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Pari Passu Indebtedness or Subordinated Indebtedness on
any asset now owned or hereafter acquired by the Company or any of its
Restricted Subsidiaries, or any income or profits therefrom, or assign or convey
any right to receive income therefrom; PROVIDED, however that the Company and
its Restricted Subsidiaries may create, incur, assume or suffer to exist a Lien
securing Pari Passu Indebtedness if the Notes are equally and ratably secured
with the obligations so secured until such time as such obligations are no
longer secured by a Lien.
45
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction (other than the
sale and leaseback of newly constructed grocery stores as part of the
development of grocery store sites); PROVIDED that the Company and its
Restricted Subsidiaries may enter into a sale and leaseback transaction if (i)
the Company or such Restricted Subsidiary could have (a) incurred Indebtedness
in an amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to Section 4.09 hereof and (b) incurred a Lien to secure
such Indebtedness pursuant to Section 4.12 hereof, (ii) the gross cash proceeds
of such sale and leaseback transaction are at least equal to the fair market
value (as determined in good faith by the Company's Board of Directors and set
forth in an Officers' Certificate delivered to the Trustee) of the property that
is the subject of such sale and leaseback transaction and (iii) the transfer of
assets in such sale and leaseback transaction is permitted by, and the Company
or such Restricted Subsidiary applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder will have the right
to require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at a price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the "Change of
Control Payment"). Within 30 days following any Change of Control, the Company
will mail or cause to be mailed a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes pursuant to the procedures required by Section 3.09 hereof
and described in such notice. The Company will 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 the Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described herein by virtue thereof.
Prior to complying with the provisions of this Section 4.14, but in any
event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Debt, or offer to repay in full all outstanding
Senior Debt and repay the Senior Debt with respect to which such offer has been
accepted, or obtain the requisite consents, if any, under all outstanding Senior
Debt to permit the repurchase of the Notes required by this Section 4.14.
On the payment date set forth in the Change of Control Offer (the "Change
of Control Payment Date"), the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (2) deposit with the Trustee or with the Paying Agent
(or, if the Company or any of its Subsidiaries is the Paying Agent, separate and
hold in trust) an amount in same-day funds equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered and (3) deliver
or cause to be delivered to the Trustee for cancellation the Notes so accepted
together with an Officers' Certificate stating that such Notes or portions
thereof have been tendered to and purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
PROVIDED that each such
46
new Note will be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar restructuring.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (a) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (b) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; PROVIDED that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 4.16. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF WHOLLY OWNED
RESTRICTED SUBSIDIARIES.
Notwithstanding any other provisions in this Indenture, except with respect
to the pledge of Capital Stock of its Subsidiaries pursuant to the Senior Credit
Facility, the Company (a) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Subsidiary Guarantor to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company
that is a Subsidiary Guarantor), unless (i) such transfer, conveyance, sale,
lease or other disposition is of all the Capital Stock of such Subsidiary
Guarantor and (ii) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.10 hereof
and (b) will not permit any Subsidiary Guarantor to issue any of its Equity
Interests (other than, if necessary, shares of its Capital Stock constituting
directors' qualifying shares) to any Person other than to the Company or another
Subsidiary Guarantor.
SECTION 4.17. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than (i) the retail and wholesale grocery business
and such business activities as are incidental or reasonably related thereto,
including the sale of liquor and the retail gasoline business, and (ii) such
other businesses as the Company or its Restricted Subsidiaries are engaged in on
the date hereof.
SECTION 4.18. ADDITIONAL GUARANTEES.
If the Company or any of its Restricted Subsidiaries shall, after the date
of this Indenture, transfer or cause to be transferred, in one transaction or a
series of related transactions, any assets, businesses,
47
divisions, real property or equipment having an aggregate fair market value (as
determined in good faith by the Board of Directors) in excess of $1.0 million to
any Subsidiary that is not a Subsidiary Guarantor, or if the Company or any of
its Restricted Subsidiaries shall acquire another Subsidiary having total assets
with a fair market value (as determined in good faith by the Board of Directors)
in excess of $1.0 million, then such transferee or acquired Subsidiary shall (a)
execute a Guarantee in substantially the form of EXHIBIT D hereto, (b) execute
and deliver to the Trustee a supplemental indenture in the form of EXHIBIT E
hereto pursuant to which such transferee or acquired Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
this Indenture on the terms set forth in such supplemental indenture and (c)
deliver to the Trustee an Opinion of Counsel satisfactory to the Trustee that
such Guarantee and such supplemental indenture have been duly executed and
delivered by such transferee or acquired Subsidiary. Notwithstanding the
foregoing, if such transferee or acquired Subsidiary has been properly
designated as an Unrestricted Subsidiary in accordance with this Indenture, then
for so long as it continues to constitute an Unrestricted Subsidiary that
transferee or acquired Subsidiary shall not be required to execute a Guarantee
or supplemental indenture or deliver to the Trustee an Opinion of Counsel in
accordance with clause (c) above.
SECTION 4.19. PAYMENT FOR CONSENTS.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions hereof or
the Notes unless such consideration is offered to be paid or is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
SECTION 4.20. NO SENIOR SUBORDINATED DEBT.
The Company shall not incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in any respect in right of payment to the
Notes. No Subsidiary Guarantor shall incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to the Senior Debt of such Subsidiary Guarantor and senior in
any respect in right of payment to the Subsidiary Guarantees. For purposes of
this Section 4.20, no Indebtedness shall be deemed to be subordinated in right
of payment to any other Indebtedness solely by reason of the fact that such
other Indebtedness is secured by a Lien or is subject to a Guarantee.
SECTION 4.21. NO RESTRICTIONS ON CONSUMMATION OF DELCHAMPS ACQUISITION.
Notwithstanding any provision contained herein to the contrary, this
Indenture shall not prohibit the consummation of the Delchamps Acquisition and
the transactions related thereto in accordance with the terms set forth in this
Offering Memorandum and in the tender offer statement on Schedule 14D-1, as
filed with the Commission on July 14, 1997 and as subsequently amended or
supplemented, naming Delchamps, Inc. as the subject company.
48
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
Except as otherwise provided in Section 4.21, the Company may not
consolidate or merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions to, another Person unless (a) the Company is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (the "SUCCESSOR") is
a corporation organized or existing under the laws of the United States, any
state thereof, the District of Columbia or a territory thereof; (b) the
Successor assumes all the obligations of the Company under the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; (c) immediately after such transaction no Default or Event of
Default exists; (d) the Successor will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09 hereof and (e) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to such transaction have been
complied with. The foregoing will not prohibit (i) any consolidation or merger
of, or transfer of all or part of the property and assets of, any Restricted
Subsidiary with or to the Company or any Subsidiary Guarantor or (ii) the
Delchamps Merger.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and shall 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, that, (i)
solely for the purposes of computing Consolidated Net Income for purposes of
clause (b) of the first paragraph of Section 4.07 hereof, the Consolidated Net
Income of any Person other than the Company and its Subsidiaries shall be
included only for periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets; and (ii) in the case of any
sale, assignment, transfer, lease, conveyance, or other disposition of less than
all of the assets of the predecessor Company, the predecessor Company shall not
be released or discharged from the obligation to pay the principal of or
interest and Liquidated Damages, if any, on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an Event of Default:
49
(a) default for 30 days in the payment when due, upon redemption,
acceleration or otherwise, of interest on, or Liquidated Damages with
respect to, the Notes;
(b) default in payment when due of the principal of or premium, if any, on
the Notes;
(c) failure by the Company for 30 days after receipt of written notice
from the Trustee or from Holders of at least 25% of the aggregate
principal amount of the Notes then outstanding to comply with the
provisions described under Sections 4.07, 4.09, 4.10 or 4.14 hereof;
(d) failure by the Company for 60 days after receipt of written notice
from the Trustee or from Holders of at least 25% of the aggregate
principal amount of the Notes then outstanding to comply with any of
its other agreements in this Indenture or the Notes;
(e) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries (other than Indebtedness
owed to the Company or its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date
hereof, if both (a) such default either (1) results from the failure
to pay any such Indebtedness at its stated final maturity (after
giving effect to any applicable grace periods) or (2) relates to an
obligation other than the obligation to pay principal of any such
Indebtedness at its stated maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due
prior to its stated 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 (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $15.0 million or
more;
(f) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments (other than any judgments as to which a reputable
insurance company has accepted liability) aggregating in excess of
$15.0 million, which judgments are not paid, discharged, bonded or
stayed for a period of 60 days after their entry;
(g) except as permitted by this Indenture, any Subsidiary Guarantee shall
be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor,
shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and
(h) the Company or any Significant Restricted Subsidiary or group of
Restricted Subsidiaries that, together, would constitute a Significant
Restricted Subsidiary, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case in which it is the debtor,
50
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) admits in writing its inability generally to pay its debts
as they become due; or
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Restricted Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Restricted
Subsidiary in an involuntary case in which any of them is
the debtor,
(ii) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Restricted
Subsidiary or for all or substantially all of the property
of any of the foregoing, or
(iii) orders the liquidation of the Company or any Significant
Restricted Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee by notice to
the Company or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes by notice to the Company and the Trustee may declare all
the Notes to be due and payable immediately; PROVIDED, however, that, so long as
any Designated Senior Debt shall be outstanding, no such acceleration shall be
effective until the earlier of (i) acceleration of any such Designated Senior
Debt or (ii) five Business Days after the giving of written notice to the
Company and the Representatives under the Designated Senior Debt of such
acceleration. Notwithstanding the foregoing, in the case of an Event of Default
specified in clauses (h) or (i) of Section 6.01, all outstanding Notes will
become due and payable without further action or notice. In the event of any
Event of Default specified in clause (e) of Section 6.01, such Event of Default
and all consequences thereof (including, without limitation, any acceleration or
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the Notes,
if within 20 days after such Event of Default arose (x) the Indebtedness or
Guarantee that is the basis for such Event of Default has been discharged in a
manner that does not violate the terms of this Indenture or (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the case
may be) giving rise to such Event of Default. The Trustee will have no
obligation to accelerate the Notes if, in the best judgment of the Trustee,
acceleration is not in the best interests of the Holders.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant
51
to the optional redemption provisions of Section 3.07(a) hereof, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs prior to September 15, 2002 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to September 15, 2002,
then the amount payable in respect of such Notes for purposes of this paragraph
for each of the twelve-month periods beginning on September 15 of the years
indicated below shall be set forth below, expressed as percentages of the
principal amount that would otherwise be due but for the provisions of this
sentence, plus accrued and unpaid interest and Liquidated Damages, if any, to
the date of payment:
YEAR PERCENTAGE
---- ----------
1997.....................................................110.375%
1998.....................................................109.338%
1999.....................................................108.300%
2000.....................................................107.263%
2001.....................................................106.225%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, interest
and Liquidated Damages, if any, on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note 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. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences
hereunder except a continuing Default or Event of Default in the payment of the
principal of or interest on any Note held by a non-consenting Holder (including
in connection with an offer to purchase); PROVIDED that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
52
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve the Trustee in
personal liability. The Trustee may take any other action which it deems proper
which is not inconsistent with any such direction. Notwithstanding any
provision to the contrary in this Indenture, the Trustee shall not be obligated
to take any action with respect to the provisions of the last paragraph of
Section 6.02 hereof unless directed to do so pursuant to this Section 6.05.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture, the
Subsidiary Guarantees or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from
the Company;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, interest, and
Liquidated Damages, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), 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 such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and
53
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 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to 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
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
securities or property payable or deliverable upon the conversion or exchange of
the Notes or on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee, for amounts due under Section 7.07 hereof;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest, and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
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
54
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture
or the TIA and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) 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 Officers' Certificates or Opinions of
Counsel 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 liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, including, without limitation, the provisions of Section
6.05 hereof, unless such Holders shall have offered to the Trustee security and
indemnity reasonably satisfactory to it against any loss, liability or expense
that might be incurred by it in complying with such request.
55
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(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 it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture; PROVIDED that the Trustee's conduct
does not constitute willful misconduct or negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company. A permissive right granted to the Trustee hereunder
shall not be deemed an obligation to act.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Company or any Holder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest (as defined in the
TIA) it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Notes or any Subsidiary
Guarantee, shall not be accountable for the Company's use of the proceeds from
the Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in
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connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to all
Holders a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders. The Trustee shall
not be deemed to have actual knowledge of a Default or an Event of Default
hereunder, except in the case of a Default or an Event of Default under Section
6.01(a) (other than with respect to the payment of Liquidated Damages) or
6.01(b) at such time as the Trustee is also the Paying Agent, until a
Responsible Officer of the Trustee receives written notice thereof from the
Company or any Holders that such a Default or an Event of Default has occurred.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 1 beginning with the May 1 first following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to the Holders shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA Section 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder as the
Trustee and the Company may agree in writing. 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 promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against, and hold it harmless from,
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. 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
57
reasonable fees and expenses of such counsel not to exceed one law firm. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or 6.01(i) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) 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 promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
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 then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become
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effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to all Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, PROVIDED,
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of the predecessor
trustee or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution, at any time, elect to have either Section 8.02 or 8.03 hereof
be applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article 8.
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and its Subsidiaries shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from their respective obligations with respect to
all outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (b) the Company's obligations with respect to
such outstanding Notes under Article 2 and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07,
4.08, 4.09 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 4.19, 11.03 and
Article 5 hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes 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 (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company and its Subsidiaries 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 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(f), 6.01(g), 6.01(h) and 6.01(i) hereof shall
not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
if any, and interest on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be;
(b) the Company must specify whether the Notes are being defeased
to maturity or to a particular redemption date;
(c) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (1) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (2) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, subject to customary assumptions and exclusions, the Holders of the
outstanding Notes 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;
(d) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions, the Holders of the outstanding
Notes 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;
(e) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit
or the incurrence of Indebtedness all or a portion of the proceeds of which
will be used to defease the Notes pursuant to this Article 8 concurrently
with such incurrence) or insofar as Sections 6.01(h) or 6.01(i) hereof is
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(f) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound (including, without limitation,
any agreement or instrument pursuant to which any Senior Debt was
incurred);
(g) on or prior to the 91st day following the deposit, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that, subject to customary assumptions and exclusions, after the
91st day following the deposit, the trust funds will not be subject to any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders
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over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that, subject to
customary assumptions and exclusions, all conditions precedent provided for
or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, 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 cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal 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 Notes.
SECTION 8.06. REPAYMENT TO COMPANY.
(a) Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
(b) The Trustee shall promptly pay to the Company, after written request
therefor, any money held at such time in excess of the amounts required to pay
any of the Company's Obligations then owing with respect to the Notes.
(c) Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal, or premium, if any, or interest that remains unclaimed
for two years after such principal or premium, if any, or interest became due
and payable and any such money held by the Company in trust shall be discharged
from such trust, and, thereafter, Holders entitled to the money must look to the
Company for payment of such money as secured creditors and all liability of the
Trustee and the Paying Agent with respect to such money shall cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, shall, at the expense of the Company, cause to be published
once, in The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of
62
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED that, if the Company makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture, the
Subsidiary Guarantees or the Notes without notice to or the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's obligations to the
Holders in the case of a merger, consolidation or sale of assets
pursuant to this Indenture;
(d) to add Subsidiary Guarantees with respect to the Notes;
(e) to provide security for the Notes;
(f) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal
rights hereunder of any Holder; or
(g) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 9.06 hereof,
the Trustee shall join with the Company and the Subsidiary Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture, the
Subsidiary Guarantees and the Notes with the consent of the Holders of at least
a majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Subsidiary Guarantees or the Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company and the Subsidiary Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 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 amended or supplemental Indenture,
Subsidiary Guarantee or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive any existing Default or compliance in a particular
instance by the Company or any Subsidiary Guarantor with any provision of this
Indenture, the Subsidiary Guarantees or the Notes. However, without the consent
of each Holder affected, an amendment or waiver may not (with respect to any
Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other
than provisions relating to Sections 4.10 and 4.14 hereof);
(c) reduce the rate of or change the time for payment of interest or
Liquidated Damages on any Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages on the Notes (except
a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);
64
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of or premium, if any, or interest or Liquidated Damages on the
Notes;
(g) waive a redemption payment with respect to any Note (other than a
payment required by Section 4.10 and/or 4.14 hereof); or
(h) make any change in Section 6.04 or 6.07 hereof or in this Section
9.02 or in Section 9.01 hereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as then
in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent to any
amendment, supplement or waiver or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent to such
amendment, supplement or waiver or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 90
days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for all Notes
may issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, in addition to the documents required by
Section 13.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental Indenture is authorized or
permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder of Notes by accepting a Note agrees,
that the Indebtedness evidenced by the Note is subordinated in right of payment,
to the extent and in the manner provided in this Article 10, to the prior
payment in full of all Senior Debt of the Company, whether outstanding on the
date hereof or hereafter incurred, that the subordination is for the benefit of,
and shall be enforceable directly by, the holders of the Senior Debt and that
each holder of Senior Debt, whether now outstanding or hereafter created,
incurred assumed or guaranteed shall be deemed to have acquired Senior Debt in
reliance upon the covenants and provisions contained in this Indenture and the
Notes.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities, the holders of Senior Debt of the Company will be
entitled to receive payment in full in cash of all Obligations due in respect of
such Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) before the
Holders will be entitled to receive any payment with respect to the Notes, and
until all Obligations with respect to Senior Debt are paid in full in cash, any
distribution to which the Holders would be entitled shall be made to the holders
of Senior Debt (except that Holders may receive Permitted Junior Securities and
payments made from the trust described under Article 8 hereof).
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company shall not make any payment upon or in respect of the Notes
(except in Permitted Junior Securities or from the trust described under Article
8 hereof) if (i) a default in the payment of the principal of, premium, if any,
or interest on Designated Senior Debt occurs and is continuing beyond any
applicable period of grace or (ii) any other default occurs and is continuing
with respect to Designated Senior Debt that permits holders of such Designated
Senior Debt to accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the Representative of the holders of
such Designated Senior Debt. Payments on the Notes may and shall be resumed (a)
in the case of a payment default, upon the date on which such default is cured
or waived in writing and (b) in case of a nonpayment default, the earlier of (x)
the date on which such nonpayment default is cured or waived in writing, (y) 179
days after the date on which the applicable Payment Blockage Notice is received,
in each
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case, unless the maturity of any Designated Senior Debt has been accelerated or
(z) the date on which such Payment Blockage Period (as defined below) shall have
been terminated by written notice to the Trustee from the Representative of the
holders of Designated Senior Debt initiating such Payment Blockage Period.
During any consecutive 360-day period, the aggregate number of days in which
payments due on the Notes may not be made as a result of nonpayment defaults on
Designated Senior Debt (a "Payment Blockage Period") shall not exceed 179 days,
and there shall be a period of at least 181 consecutive days in each consecutive
360-day period during which no Payment Blockage Period is in effect. No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been cured or
waived in writing for a period of not less than 90 days (it being acknowledged
that any subsequent action, or any breach of any financial covenant for a period
commencing after the date of commencement of such Payment Blockage Period that,
in either case, would give rise to a default pursuant to any provisions under
which a default previously existed or was continuing, shall constitute a new
default for this purpose).
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Debt of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder of a Note receives any payment
of any Obligations with respect to the Notes at a time when such payment is
prohibited by Section 10.03 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt of the Company remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt of the Company.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of the Company.
SECTION 10.06. NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article, which notice shall specifically
refer to this Article 10, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Debt of the Company as provided in this
Article.
SECTION 10.07. SUBROGATION.
After all Senior Debt of the Company is paid in full and until the Notes
are paid in full, Holders of the Notes shall be subrogated (equally and ratably
with all other PARI PASSU indebtedness) to the rights of holders of Senior Debt
of the Company to receive distributions applicable to Senior Debt of the
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Company to the extent that distributions otherwise payable to the Holders of the
Notes have been applied to the payment of Senior Debt of the Company. A
distribution made under this Article to holders of Senior Debt of the Company
that otherwise would have been made to Holders of the Notes is not, as between
the Company and Holders of the Notes, a payment by the Company on the Notes.
SECTION 10.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of the Notes and
holders of Senior Debt of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of the Notes, the
obligations of the Company, which are absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of the Notes and creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any Holder of the Notes from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of the Notes.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Debt of the Company to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Company, or any of them, may, at any time and from
time to time, without the consent of or notice to the Holders of the Notes,
without incurring any liabilities to any Holder of any Notes and without
impairing or releasing the subordination and other benefits provided in this
Indenture or the obligations of the Holders of the Notes to the holders of the
Senior Debt of the Company, even if any right of reimbursement or subrogation or
other right or remedy of any Holder of Notes is affected, impaired or
extinguished thereby, do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any Senior Debt, any security therefor or guaranty thereof or any
liability of any obligor thereon (including any guarantor) to such holder,
or any liability incurred directly or indirectly in respect thereof or
otherwise amend, renew, exchange, extend, modify, increase or supplement in
any manner any Senior Debt or any instrument evidencing or guaranteeing or
securing the same or any agreement under which Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing Senior Debt or any liability of any obligor
thereon to such holder, or any liability incurred directly or indirectly in
respect thereof;
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(3) settle or compromise any Senior Debt or any other liability of
any obligor of the Senior Debt to such holder or any security therefor or
any liability incurred directly or indirectly in respect thereof and apply
any sums by whomsoever paid and however realized to any liability
(including, without limitation, Senior Debt) in any manner or order; and
(4) fail to take or to record or to otherwise perfect, for any reason
or for no reason, any lien or security interest securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or any guarantor or any other person,
elect any remedy and otherwise deal freely with any obligor and any
security for the Senior Debt or any liability of any obligor to such holder
or any liability incurred directly or indirectly in respect thereof.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of the Company, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of the Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction so
long as such order or decree recognizes the provisions of this Article 10 or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt 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
10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least three Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Notes to violate this Article, which notice shall specifically refer to this
Article 10 (provided that, notwithstanding the foregoing, the making of any such
payments shall otherwise be subject to the provisions of Sections 10.02, 10.03
and 10.05 hereof). Only the Company or a Representative may give the notice.
Nothing in this Article 10 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes, including without limitation the timely filing of a
claim for the unpaid balance of the Notes held by such Holder in the form
required in any Insolvency or Liquidation Proceeding and causing such claim to
be approved. If the Trustee does not file a proper proof of claim or proof of
debt in the
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form required in any proceeding referred to in Section 6.09 hereof at least 30
days before the expiration of the time of such claim, the Representatives of the
Designated Senior Debt, including debt under the Senior Credit Facility, are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Notes.
SECTION 10.13. AMENDMENTS.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the legal rights of
Holders.
ARTICLE 11
GUARANTEE OF NOTES
SECTION 11.01. SUBSIDIARY GUARANTEE.
Subject to Section 11.05 hereof, each of the Subsidiary Guarantors hereby,
on a full, unconditional, joint and several, unsecured basis guarantees (the
"Subsidiary Guarantees") to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Notes and the Obligations
of the Company hereunder and thereunder, that: (a) the principal of, premium, if
any, interest and Liquidated Damages, if any, on the Notes will be promptly paid
in full when due, subject to any applicable grace period, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal,
premium, if any, (to the extent permitted by law) interest on any interest, if
any, and Liquidated Damages, if any, on the Notes, and all other payment
Obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full and performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of 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, redemption or otherwise. Failing payment when so due of any
amount so guaranteed for whatever reason the Subsidiary Guarantors will be
jointly and severally obligated to pay the same immediately. An Event of
Default under this Indenture or the Notes shall constitute an event of default
under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the
Obligations of the Subsidiary Guarantors hereunder in the same manner and to the
same extent as the Obligations of the Company. The Subsidiary Guarantors hereby
agree that their Obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
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
Subsidiary 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 Subsidiary Guarantee will not be discharged except by complete
performance of the Obligations contained in the Notes and this Indenture. If
any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors, or any Custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder,
this Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each
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Subsidiary Guarantor agrees that it shall not be entitled to, and hereby waives,
any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that,
as between the Subsidiary Guarantors, 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 6 for the purposes of the
Subsidiary Guarantees, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such Obligations as
provided in Article 6 hereof, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Subsidiary Guarantors for the
purpose of the Subsidiary Guarantees. The Subsidiary Guarantors shall have the
right to seek contribution from any non-paying Subsidiary Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantees.
SECTION 11.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form of EXHIBIT D shall be endorsed by an Officer of such
Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Subsidiary Guarantor, by
manual or facsimile signature, by an Officer of such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 11.03. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Except as set forth in Articles 4 and 5, nothing contained in this
Indenture or in the Notes shall prevent (i) any consolidation or merger of a
Subsidiary Guarantor with or into the Company or any other Subsidiary Guarantor,
(ii) any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety, to the Company or any other Subsidiary
Guarantor or (iii) the Merger.
(b) Except as set forth in Article 4, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into a Person or Persons other than the Company or any other
Subsidiary Guarantor (in each case, whether or not affiliated with the
Subsidiary Guarantor), or successive consolidations or mergers in which a
Subsidiary Guarantor or its successor or successors shall be a party or parties,
or shall prevent any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety, to a Person other than
the Company or any other Subsidiary Guarantor (in each case, whether or not
affiliated with the Subsidiary Guarantor) authorized to acquire and operate the
same; PROVIDED, HOWEVER, that each Subsidiary Guarantor hereby covenants and
agrees that: (i) upon any such consolidation, merger, sale or conveyance, the
Subsidiary Guarantee endorsed on the Notes, and the due and punctual performance
and
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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 Person in the merger), by
supplemental indenture substantially in the form of EXHIBIT E hereto, executed
and delivered to the Trustee, by the Person formed by such consolidation, or
into which the Subsidiary Guarantor shall have been merged, or by the Person
which shall have acquired such property; (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists; and (iii) the Company
would be permitted, immediately after giving effect to such transaction, to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09. The foregoing will not prohibit
(i) any consolidation or merger of a Guarantor with or into the Company or any
other Guarantor, (ii) any sale or conveyance of the property of a Guarantor as
an entirety or substantially as an entirety, to the Company or any other
Subsidiary Guarantor or (iii) the Merger.
(c) In the case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and substantially in the form of EXHIBIT E hereto,
of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person 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. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All of the
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such guarantees had been issued at the date of the execution hereof.
SECTION 11.04. RELEASES FOLLOWING SALE OF ASSETS, MERGER, SALE OF CAPITAL STOCK
ETC..
Concurrently with any sale of assets (including, if applicable, all of the
Capital Stock of any Subsidiary Guarantor by merger or otherwise), any Liens in
favor of the Trustee in the assets sold thereby shall be released; PROVIDED
that, in the event of an Asset Sale, the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of Section 4.10
hereof. If the assets sold in such sale or other disposition include all or
substantially all of the assets of any Subsidiary Guarantor or all of the
Capital Stock of any Subsidiary Guarantor, then such Subsidiary Guarantor (in
the event of a sale or other disposition of all of the Capital Stock of such
Subsidiary Guarantor) or the Person acquiring the property (in the event of a
sale or other disposition of all or substantially all of the assets of a
Subsidiary Guarantor) shall be released from and relieved of its Obligations
under its Subsidiary Guarantee or Section 11.03 hereof, as the case may be;
PROVIDED that (i) in the event of an Asset Sale, the Net Proceeds from such sale
or other disposition are treated in accordance with the provisions of Section
4.10 hereof and (ii) the Company is in compliance with all other provisions of
this Indenture applicable to such disposition. Upon delivery by the Company to
the Trustee of an Officers' Certificate to the effect of the foregoing, together
with the documents required by Section 13.04 hereof, the Trustee shall execute
any documents reasonably required in order to evidence the release of any
Subsidiary Guarantor from its Obligation under its Subsidiary Guarantee. Any
Subsidiary Guarantor not released from its Obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of, premium, if
any, and interest on the Notes and for the other Obligations of such Subsidiary
Guarantor under this Indenture as provided in this Article 11.
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SECTION 11.05. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
For purposes hereof, the obligations of each Subsidiary Guarantor under its
Subsidiary Guarantee shall be limited to the lesser of (i) the aggregate amount
of the Obligations of the Company under the Notes and this Indenture and (ii)
the amount, if any, which would not have (A) rendered such Subsidiary Guarantor
"insolvent" (as such term is defined in the United States Bankruptcy Code and in
the Debtor and Creditor Law of the State of New York) or (B) left such
Subsidiary Guarantor with unreasonably small capital at the time its Subsidiary
Guarantee of the Notes was entered into; PROVIDED that it will be a presumption
in any lawsuit or other proceeding in which a Subsidiary Guarantor is a party
that the amount guaranteed pursuant to the Subsidiary Guarantee is the amount
set forth in clause (i) above unless any creditor, or representative of
creditors of such Subsidiary Guarantor, or debtor in possession or trustee in
bankruptcy of the Subsidiary Guarantor, otherwise proves in such a lawsuit that
the aggregate liability of the Subsidiary Guarantor is the amount set forth in
clause (ii) above. In making any determination as to solvency or sufficiency of
capital of a Subsidiary Guarantor in accordance with the previous sentence, the
right of such Subsidiary Guarantor to contribution from other Subsidiary
Guarantors, and any other rights such Subsidiary Guarantor may have, shall be
taken into account.
SECTION 11.06. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article 11 shall in each case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully and for all intents and purposes as if such Paying Agent were
named in this Article 11 in place of the Trustee.
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEE
SECTION 12.01. AGREEMENT TO SUBORDINATE.
The Subsidiary Guarantors agree, and each Holder by accepting a Note
agrees, that all Obligations under the Subsidiary Guarantees shall be
subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the prior payment in full of all Senior Debt of the
Subsidiary Guarantors, whether outstanding on the date hereof or thereafter
incurred, that the subordination is for the benefit of, and shall be enforceable
directly by, the holders of the Senior Debt of the Subsidiary Guarantors and
that each holder of Senior Debt of the Subsidiary Guarantors, whether now
outstanding or hereafter created, incurred assumed or guaranteed shall be deemed
to have acquired Senior Debt in reliance upon the covenants and provisions
contained in this Indenture and the Subsidiary Guarantees.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Subsidiary Guarantors in a
liquidation or dissolution of the Subsidiary Guarantors or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Subsidiary Guarantors or their respective property, an assignment for the
benefit of creditors or any marshalling of the Subsidiary Guarantors' assets and
liabilities, the holders of Senior Debt of the Subsidiary Guarantors will be
entitled to receive payment in full in cash of all Obligations due in respect of
such Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) before the
Holders will be entitled to
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receive any payment with respect to the Subsidiary Guarantees, and until all
Obligations with respect to Senior Debt are paid in full in cash, any
distribution to which the Holders would be entitled shall be made to the holders
of Senior Debt of the Subsidiary Guarantors (except that Holders may receive
Permitted Junior Securities and payments made from the trust described under
Article 8 hereof).
SECTION 12.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Subsidiary Guarantors shall not make any payment upon or in respect of
the Subsidiary Guarantees (except in Permitted Junior Securities or from the
trust described under Article 8 hereof) if (i) a default in the payment of the
principal of, premium, if any, or interest on Designated Senior Debt occurs and
is continuing beyond any applicable period of grace or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that permits
holders of such Designated Senior Debt to accelerate its maturity and the
Trustee receives a Payment Blockage Notice from the Representative of the
holders of such Designated Senior Debt. Payments on the Subsidiary Guarantees
may and shall be resumed (a) in the case of a payment default, upon the date on
which such default is cured or waived in writing and (b) in case of a nonpayment
default, the earlier of (x) the date on which such nonpayment default is cured
or waived in writing, (y) 179 days after the date on which the applicable
Payment Blockage Notice is received, in each case, unless the maturity of any
Designated Senior Debt has been accelerated or (z) the date on which such
Payment Blockage Period shall have been terminated by written notice to the
Trustee from the Representative of the holders of Designated Senior Debt
initiating such Payment Blockage Period. During any consecutive 360-day period,
the aggregate number of days in which payments due on the Notes may not be made
as a result of nonpayment defaults on Designated Senior Debt shall not exceed
179 days, and there shall be a period of at least 181 consecutive days in each
consecutive 360-day period during which no Payment Blockage Period is in effect.
No nonpayment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been cured or
waived in writing for a period of not less than 90 days (it being acknowledged
that any subsequent action, or any breach of any financial covenant for a period
commencing after the date of commencement of such Payment Blockage Period that,
in either case, would give rise to a default pursuant to any provisions under
which a default previously existed or was continuing, shall constitute a new
default for this purpose).
SECTION 12.04. ACCELERATION OF SUBSIDIARY GUARANTEES.
If payment of the Subsidiary Guarantees is accelerated because of an Event
of Default, the Subsidiary Guarantor shall promptly notify the Representatives
of Senior Debt of the acceleration.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder of a Subsidiary Guarantee
receives any payment of any Obligations with respect to the Subsidiary
Guarantees at a time when such payment is prohibited by Section 12.03 hereof,
such payment shall be held by the Trustee or such Holder, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt of the
Subsidiary Guarantors remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt of the
Subsidiary Guarantors.
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With respect to the holders of Senior Debt of the Subsidiary Guarantors,
the Trustee undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Article 12, and no implied
covenants or obligations with respect to the holders of Senior Debt of the
Subsidiary Guarantors shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt of the Subsidiary Guarantors.
SECTION 12.06. NOTICE BY SUBSIDIARY GUARANTOR.
The Subsidiary Guarantors shall promptly notify the Trustee and the Paying
Agent of any facts known to the Subsidiary Guarantors that would cause a payment
of any Obligations with respect to the Subsidiary Guarantees to violate this
Article, which notice shall specifically refer to this Article 12, but failure
to give such notice shall not affect the subordination of the Subsidiary
Guarantees to the Senior Debt of the Subsidiary Guarantors as provided in this
Article.
SECTION 12.07. SUBROGATION.
After all Senior Debt of the Subsidiary Guarantors is paid in full and
until the Notes are paid in full, Holders of the Subsidiary Guarantees shall be
subrogated (equally and ratably with all PARI PASSU indebtedness) to the rights
of holders of Senior Debt of the Subsidiary Guarantors to receive distributions
applicable to Senior Debt of the Subsidiary Guarantors to the extent that
distributions otherwise payable to the Holders of the Subsidiary Guarantees have
been applied to the payment of Senior Debt of the Subsidiary Guarantors. A
distribution made under this Article to holders of Senior Debt of the Subsidiary
Guarantors that otherwise would have been made to Holders of the Subsidiary
Guarantees is not, as between the Subsidiary Guarantors and Holders of the
Subsidiary Guarantees, a payment by the Subsidiary Guarantors on the Subsidiary
Guarantees.
SECTION 12.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of the Subsidiary
Guarantees and holders of Senior Debt of the Subsidiary Guarantors. Nothing in
this Indenture shall:
(1) impair, as between the Subsidiary Guarantors and Holders of the
Subsidiary Guarantees, the obligations of the Subsidiary Guarantors, which
are absolute and unconditional, to pay principal of and interest on the
Notes in accordance with the terms of the Subsidiary Guarantees;
(2) affect the relative rights of Holders of the Subsidiary
Guarantees and creditors of the Subsidiary Guarantors other than their
rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of the Subsidiary Guarantees
from exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders of the Subsidiary
Guarantees.
If the Subsidiary Guarantors fail because of this Article to pay principal
of or interest on a Note on the due date in accordance with the terms of the
Subsidiary Guarantees, the failure is still a Default or Event of Default.
75
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY GUARANTOR.
No right of any holder of Senior Debt of the Subsidiary Guarantors to
enforce the subordination of the Indebtedness evidenced by the Subsidiary
Guarantees shall be impaired by any act or failure to act by the Subsidiary
Guarantors or any Holder or by the failure of the Subsidiary Guarantors or any
Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Subsidiary Guarantors, or any of them, may, at any
time and from time to time, without the consent of or notice to the Holders of
the Subsidiary Guarantees, without incurring any liabilities to any Holder of
any Subsidiary Guarantees and without impairing or releasing the subordination
and other benefits provided in this Indenture or the obligations of the Holders
of the Subsidiary Guarantees to the holders of the Senior Debt of the Subsidiary
Guarantors, even if any right of reimbursement or subrogation or other right or
remedy of any Holder of Subsidiary Guarantees is affected, impaired or
extinguished thereby, do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any Senior Debt, any security therefor or guaranty thereof or any
liability of any obligor thereon (including any guarantor) to such holder,
or any liability incurred directly or indirectly in respect thereof or
otherwise amend, renew, exchange, extend, modify, increase or supplement in
any manner any Senior Debt or any instrument evidencing or guaranteeing or
securing the same or any agreement under which Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing Senior Debt or any liability of any obligor
thereon, to such holder, or any liability incurred directly or indirectly
in respect thereof;
(3) settle or compromise any Senior Debt or any other liability of
any obligor of the Senior Debt to such holder or any security therefor or
any liability incurred directly or indirectly in respect thereof and apply
any sums by whomsoever paid and however realized to any liability
(including, without limitation, Senior Debt) in any manner or order; and
(4) fail to take or to record or to otherwise perfect, for any reason
or for no reason, any lien or security interest securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or any guarantor or any other person,
elect any remedy and otherwise deal freely with any obligor and any
security for the Senior Debt or any liability of any obligor to such holder
or any liability incurred directly or indirectly in respect thereof.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of the Subsidiary Guarantors, the distribution may be made and the
notice given to their Representative.
Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article 12, the Trustee and the Holders of the Subsidiary
Guarantees shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction so long as such order or decree recognizes the
provisions of this Article 12 or upon any certificate of such Representative or
of the liquidating trustee
76
or agent or other Person making any distribution to the Trustee or to the
Holders of the Subsidiary Guarantees for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt of
the Subsidiary Guarantors and other Indebtedness of the Company or 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 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes or the Subsidiary Guarantees, unless the Trustee shall have
received at its Corporate Trust Office at least three Business Days prior to the
date of such payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes or the Subsidiary Guarantees to violate
this Article, which notice shall specifically refer to this Article 12 (provided
that, notwithstanding the foregoing, the making of any such payments shall
otherwise be subject to the provisions of Sections 12.02, 12.03 and 12.05
hereof). Only the Company, the Subsidiary Guarantors or a Representative may
give the notice. Nothing in this Article 12 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt of
the Subsidiary Guarantors with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes, including without limitation the timely filing of a
claim for the unpaid balance of the Notes held by such Holder in the form
required in any Insolvency or Liquidation Proceeding and causing such claim to
be approved. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time of such claim, the
Representatives of the Designated Senior Debt, including debt under the Senior
Credit Facility, are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
SECTION 12.13. AMENDMENTS.
Any amendment to the provisions of this Article 12 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Subsidiary Guarantees.
77
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 13.02. NOTICES.
Any notice or communication by the Company, the Subsidiary Guarantors or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or any Subsidiary Guarantor:
Jitney-Jungle Stores of America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Dechert Price & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
If to the Trustee:
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, the Subsidiary Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.
78
Any notice or communication to a Holder shall be mailed by first class mail
or by overnight air courier promising next Business Day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it;
PROVIDED that notice to the Trustee shall not be deemed to have been given until
receipt by the Trustee of such notice.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else 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 or the Subsidiary Guarantors
to the Trustee to take any action under this Indenture (other than the initial
issuance of the Senior Subordinated Notes), the Company or Subsidiary Guarantor
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
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 a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
79
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the Company
or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company under the Notes, any Subsidiary Guarantee or this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Subsidiary Guarantees.
SECTION 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF
LAW RULES THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. SUCCESSORS.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Notes and the Subsidiary Guarantees shall bind their respective
successors and assigns. All agreements of the Trustee in this Indenture shall
bind its successors and assigns.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 13.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
80
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
81
SIGNATURES
Dated as of September 15, 1997 JITNEY-JUNGLE STORES OF AMERICA, INC.
By:
-----------------------------------
Name:
Title:
INTERSTATE JITNEY-JUNGLE STORES, INC.
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
By:
-----------------------------------
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY
By:
-----------------------------------
Name:
Title:
PUMP AND SAVE, INC.
By:
-----------------------------------
Name:
Title:
DELTA ACQUISITION CORPORATION
By:
-----------------------------------
Name:
Title:
DELCHAMPS, INC.
By:
-----------------------------------
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.
By:
-----------------------------------
Name:
Title:
MARINE MIDLAND BANK,
as Trustee
By:
-----------------------------
Name:
Title:
EXHIBIT A-1
-----------
(Face of Note)
103/8% Senior Subordinated Notes due 2007
No. ___ $_______________
CUSIP NO.
JITNEY-JUNGLE STORES OF AMERICA, INC.
promises to pay to _____________ or registered assigns, the principal sum of
___________ Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
JITNEY-JUNGLE STORES OF AMERICA, INC.
By:
-----------------------------------
Name:
Title:
This is one of the
Notes referred to in the
within-mentioned Indenture:
Dated: ___________
MARINE MIDLAND BANK,
as Trustee
By:
----------------------------
(Back of Note)
103/8% Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the 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 (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), 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 may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the
registered owner hereof, Cede & Co., has an interest herein.] (1)
[THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE THIRD
SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IS OTHERWISE PERMITTED TO PURCHASE THE NOTES PURSUANT TO THE
REQUIREMENTS OF CLAUSE (2) BELOW, (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF
ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.] (2)
--------------------------
(1) This paragraph should be included only if the Senior Subordinated Note is
issued in global form.
(2) This paragraph should be removed upon the exchange of Senior Subordinated
Notes for New Subordinated Notes in the Exchange Offer or upon the registration
of the Senior Subordinated Notes pursuant to the terms of the Registration
Rights Agreement.
A-1-2
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its successor (the "Company"), promises to pay interest on
the principal amount of this Note at the rate of 103/8% per annum and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay
interest and Liquidated Damages, if any, in United States dollars (except
as otherwise provided herein) semi-annually in arrears on March 15 and
September 15, commencing on March 15, 1998, (each an "Interest Payment
Date") or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
date of issuance; PROVIDED that if there is no existing Default or Event of
Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original
issuance of Notes, in which case interest shall accrue from the date of
authentication. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal
at the rate equal to 1% per annum in excess of the then applicable interest
rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to
any applicable grace period) at the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, on the applicable
Interest Payment Date to the Persons who are registered Holders of Notes at
the close of business on the March 1 or September 1 next preceding the
Interest Payment Date, even if such Notes are cancelled after such record
date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The
Notes shall be payable as to principal, premium and Liquidated Damages, if
any, and interest at the office or agency of the Company maintained for
such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any,
may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; PROVIDED that payment by wire transfer of
immediately available funds shall be required with respect to principal of,
premium and Liquidated Damages, if any, and interest on, all Global Notes
and all other Notes the Holders of which shall have provided written wire
transfer instructions to the Company and the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Marine Midland Bank, the Trustee
under the Indenture, shall act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
September 15, 1997 ("Indenture") among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Notes include those stated in
the Indenture and those made a part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb) (the
A-1-3
"TIA"). The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Notes are
general unsecured Obligations of the Company limited to $200,000,000 in
aggregate principal amount, plus amounts, if any, sufficient to pay premium
or Liquidated Damages, if any, and interest on outstanding Notes as set
forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as provided in the following paragraph, the Notes will not be
redeemable at the Company's option prior to September 15, 2002. Thereafter,
the Notes will be subject to redemption at the option of the Company, in
whole or in part, upon not less than 30 nor more than 60 days' notice, at
the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on September 15 of the years indicated below:
YEAR PERCENTAGE
2002.................................................... 105.188%
2003.................................................... 103.458%
2004.................................................... 101.729%
2005 and thereafter..................................... 100.000%
Notwithstanding the foregoing, at any time prior to September 15, 2000
the Company may on any one or more occasions redeem up to 33 1 3% of the
aggregate principal amount of Notes originally issued in the Offering at a
redemption price of 110.375% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date, with the net proceeds of one or more Public Equity
Offerings; PROVIDED that at least 66 2 3% of the original aggregate
principal amount of Notes remains outstanding immediately after the
occurrence of each such redemption; and PROVIDED, further, that each such
redemption shall occur within 120 days of the date of the closing of the
Public Equity Offering to which it relates.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder will have the
right to require the Company to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at a price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company will mail or cause to be mailed a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Notes pursuant to the
procedures required by the Indenture.
A-1-4
(b) When the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Company shall be required to make an offer to all Holders (an "Asset
Sale Offer") to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at a price in cash equal to 100% of
the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the aggregate amount of Excess Proceeds, the Company or its Restricted
Subsidiary, as the case may be, may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the aggregate amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased in accordance
with the terms of the Indenture. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Notes that are the subject of an offer to purchase will
receive a Change of Control Offer or Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes
purchased by completing the form titled "Option of Holder to Elect
Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest and Liquidated
Damages, if any, ceases to accrue on the Notes or portions thereof called
for redemption.
9. SUBORDINATION. The payment of principal, premium, if any, and interest and
Liquidated Damages on the Notes is subordinated in right of payment, as set
forth in the Indenture, to the prior payment in full of all Senior Debt,
which is (i) Indebtedness pursuant to the Senior Credit Facility, (ii)
Indebtedness pursuant to the Senior Notes or guarantees thereof, as
applicable, (iii) the IRB Indebtedness, (iv) any other Indebtedness
permitted to be incurred by the Company or a Restricted Subsidiary under
the terms of the Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes or the Subsidiary Guarantees,
as applicable, and (v) all Obligations with respect to the foregoing.
Notwithstanding anything to the contrary in the foregoing, Senior Debt will
not include (w) any liability for federal, state, local or other taxes owed
or owing by the Company or any Subsidiary Guarantor, (x) any Indebtedness
of the Company or any Subsidiary Guarantor to any of their respective
Subsidiaries or other Affiliates, (y) any trade payables or (z) any
Indebtedness that is incurred in violation of the Indenture. To the extent
provided in the Indenture, Senior Debt must be paid before the Notes may be
paid. The Company agrees and each Holder of Notes by accepting a Note
consents and agrees to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in initial denominations of $1,000 and integral multiples
of $1,000. The transfer of the Notes may be registered and the Notes may
be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any
Note being redeemed in part. Also, it need not exchange or register the
transfer of any
A-1-5
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest
Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following paragraphs, the
Indenture, the Notes and the Subsidiary Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of or, tender
offer or exchange offer for Notes), and any existing Default or Event of
Default or compliance with any provision of the Indenture, the Notes or the
Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes).
Without the consent of any Holder of Notes, the Company and the
Trustee may amend or supplement the Indenture, the Subsidiary Guarantees or
the Notes to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or a Subsidiary Guarantor's
obligations to Holders of Notes in the case of a merger, consolidation or
sale of assets, to make any change that would provide any additional rights
or benefits to the Holders of Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act. Any
amendments with respect to subordination provisions of the Notes or the
Subsidiary Guarantees would require the consent of the Holders of at least
75% in aggregate amount of Notes then outstanding if such amendment would
adversely affect the rights of the Holders of Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days
in the payment when due, upon redemption, acceleration or otherwise, of
interest on, or Liquidated Damages with respect to, the Notes; (ii) default
in payment when due of the principal of or premium, if any, on the Notes;
(iii) failure by the Company for 30 days after receipt of written notice
from the Trustee or from Holders of at least 25% of the aggregate principal
amount of the Notes then outstanding to comply with the provisions
described under Sections 4.07, 4.09, 4.10 or 4.14 of the Indenture; (iv)
failure by the Company for 60 days after receipt of written notice from the
Trustee or from Holders of at least 25% of the aggregate principal amount
of the Notes then outstanding to comply with any of its other agreements in
the Indenture or the Notes; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries (other than Indebtedness owed
to the Company or its Restricted Subsidiaries) whether such Indebtedness or
Guarantee now exists, or is created after the date hereof, if both (a) such
default either (1) results from the failure to pay any such Indebtedness at
its stated final maturity (after giving effect to any applicable grace
periods) or (2) relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated maturity and results in
the holder or holders of such Indebtedness causing such Indebtedness to
become due prior to its stated 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 (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $15.0 million or more;
A-1-6
(vi) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments (other than any judgments as to which a reputable insurance
company has accepted liability) aggregating in excess of $15.0 million,
which judgments are not paid, discharged, bonded or stayed for a period of
60 days after their entry; (vii) except as permitted by the Indenture, any
Subsidiary Guarantee will be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Guarantor, or any Person acting on behalf of any
Subsidiary Guarantor, will deny or disaffirm its obligations under its
Subsidiary Guarantee; and (viii) certain events of bankruptcy or insolvency
with respect to the Company, any of its Significant Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Restricted Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately; PROVIDED, however, that, so long as any Designated Senior Debt
shall be outstanding, no such acceleration shall be effective until the
earlier of (i) acceleration of any such Designated Senior Debt or (ii) five
Business Days after the giving of written notice to the Company and the
Representatives under the Designated Senior Debt of such acceleration.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency with respect to the
Company, any Significant Restricted Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Restricted Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. In the event
of any Event of Default specified in clause (v) above, such Event of
Default and all consequences thereof (including, without limitation, any
acceleration or resulting payment default) shall be annulled, waived and
rescinded, automatically and without any action by the Trustee or the
Holders of the Notes, if within 20 days after such Event of Default arose
(x) the Indebtedness or guarantee that is the basis for such Event of
Default has been discharged in a manner that does not violate the terms of
the Indenture or (y) the holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to such
Event of Default. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal, interest
or Liquidated Damages) if it determines that withholding notice is in their
interest. In addition, the Trustee shall have no obligation to accelerate
the Notes if, in the best judgment of the Trustee, acceleration is not in
the best interests of the Holders.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for
the Company, the Subsidiary Guarantors or their respective Affiliates, and
may otherwise deal with the Company, the Subsidiary Guarantors or their
respective Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator
or stockholder of the Company or any Subsidiary Guarantor, as such, shall
have any liability for any obligations of the Company under the Notes, any
Subsidiary Guarantee or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes
and the Subsidiary Guarantees.
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Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
16. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder
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).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Notes under the
Indenture, Holders of Transferred Restricted Securities (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of the date hereof, among the
Company, the Subsidiary Guarantors and the Initial Purchaser (the
"Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to the Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption and reliance may be placed only
on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Jitney-Jungle Stores of America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
A-1-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_____________________
Your Signature:______________________________
(Sign exactly as your name appearson the
face of this Note)
Signature Guarantee:
A-1-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date:_____________________
Your Signature:______________________________
(Sign exactly as your name appearson the
face of this Note)
Tax Identification No.:______________________
Signature Guarantee.
A-1-10
SCHEDULE OF EXCHANGES OF NOTES (3)
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR OTHER NOTES HAVE BEEN MADE:
----------------------------------------------------------------------------------------------------------------------
Principal Amount of
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
----------------------------------------------------------------------------------------------------------------------
------------------------
(3) This should be included only if the Senior Subordinated Note is issued in
global form.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
-----------
(Face of Regulation S Temporary Global Note)
103/8% Senior Subordinated Notes due 2007
No. _____ $_______________
CIN NO.
JITNEY-JUNGLE STORES OF AMERICA, INC.
promises to pay to ________________ or registered assigns, the principal sum of
________ Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
JITNEY-JUNGLE STORES OF AMERICA, INC.
By:______________________________
Name:
Title:
This is one of the
Notes referred to in the
within-mentioned Indenture:
Dated: _________________________
MARINE MIDLAND BANK,
as Trustee
By:_____________________________
A-2-1
(Back of Regulation S Temporary Global Note)
103/8% Senior Subordinated Notes due 2007
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE 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 (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"),▇▇ 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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.
[THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE THIRD SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IS OTHERWISE PERMITTED TO PURCHASE THE NOTES
PURSUANT TO THE REQUIREMENTS OF CLAUSE (2) BELOW, (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
A-2-2
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON PRIOR TO THE
EXCHANGE OF THIS NOTE FOR A REGULATION S TEMPORARY GLOBAL NOTE AS CONTEMPLATED
BY THE INDENTURE.](1)
[Until this Regulation S Temporary Global Note is exchanged for Regulation
S Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest or Liquidated Damages, if any, hereon although interest and
Liquidated Damages, if any, will continue to accrue; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Regulation S Permanent Global Notes or Rule 144A Global Notes
only (i) on or after the termination of the 40-day restricted period (as defined
in Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Regulation S
Permanent Global Notes or Rule 144A Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This
Regulation S Temporary Global Note shall be governed by and construed in
accordance with the laws of the State of the New York.](2) All references to
"$," "Dollars," "dollars" or "U.S. $" are to such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public
and private debts therein.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its successor (the "Company"), promises to pay
interest on the principal amount of this Note at the rate of 103/8%
per annum and shall pay the Liquidated Damages, if any, payable
pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages, if any,
in United States dollars (except as otherwise provided herein)
semi-annually in arrears on March 15 and September 15, commencing on
March 15, 1998 (each an "Interest Payment Date"), or if any such day
is not a Business Day, on the next succeeding Business Day. Interest
on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED that if there is no existing Default or Event of
Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest
-----------------------
(1) These paragraphs should be removed upon the exchange of Senior Subordinated
Notes for New Senior Subordinated Notes in the Exchange Offer or upon the
registration of the Senior Subordinated Notes pursuant to the terms of the
Registration Rights Agreement.
(2) These paragraphs should be removed upon the exchange of the Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
Indenture.
A-2-3
Payment Date, interest shall accrue from such next succeeding Interest
Payment Date, except in the case of the original issuance of Notes, in
which case interest shall accrue from the date of authentication. The
Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without
regard to any applicable grace period) at the same rate to the extent
lawful. Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, on the applicable
Interest Payment Date to the Persons who are registered Holders of
Notes at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or
agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the
register of Holders; PROVIDED that payment by wire transfer of
immediately available funds shall be required with respect to
principal of, premium and Liquidated Damages, if any, and interest on,
all Global Notes and all other Notes the Holders of which shall have
provided written wire transfer instructions to the Company and the
Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Marine Midland Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company or any of its Subsidiaries may act in any
such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of September 15, 1997 ("Indenture") among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for
a statement of such terms. The Notes are general unsecured
Obligations of the Company limited to $200,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium or
Liquidated Damages, if any, and interest on outstanding Notes as set
forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as provided in the following paragraph, the Notes will not
be redeemable at the Company's option prior to September 15, 2002.
Thereafter, the Notes will be subject to redemption at the option of
the Company, in whole or in part, upon not less
A-2-4
than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to
the applicable redemption date, if redeemed during the twelve-month
period beginning on September 15 of the years indicated below:
YEAR PERCENTAGE
2002.................................................... 105.188%
2003.................................................... 103.458%
2004.................................................... 101.729%
2005 and thereafter..................................... 100.000%
Notwithstanding the foregoing, at any time prior to September 15,
2000 the Company may on any one or more occasions redeem up to 33 1 3%
of the aggregate principal amount of Notes originally issued in the
Offering at a redemption price of 110.375% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the redemption date, with the net proceeds of one or
more Public Equity Offerings; PROVIDED that at least 66 2 3% of the
original aggregate principal amount of Notes remains outstanding
immediately after the occurrence of each such redemption; and
PROVIDED, further, that each such redemption shall occur within 120
days of the date of the closing of the Public Equity Offering to which
it relates.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder will have
the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer")
at a price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company will mail or cause to be mailed a notice to each Holder
describing the transaction or transactions that constitute the Change
of Control and offering to repurchase Notes pursuant to the procedures
required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall be required to make an offer to all Holders
(an "Asset Sale Offer") to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds, at a price in
cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the aggregate amount of
Excess Proceeds, the Company or its Restricted Subsidiary, as the case
may be, may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the aggregate amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased
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in accordance with the terms of the Indenture. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds shall be reset at
zero.
(c) Holders of the Notes that are the subject of an offer to purchase
will receive a Change of Control Offer or Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form titled "Option of Holder to
Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address.
Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date, interest
and Liquidated Damages, if any, ceases to accrue on the Notes or
portions thereof called for redemption.
9. SUBORDINATION. The payment of principal, premium, if any, and
interest and Liquidated Damages on the notes is subordinated in right
of payment, as set forth in the Indenture, to the prior payment in
full of all Senior Debt, which is (i) Indebtedness pursuant to the
Senior Credit Facility, (ii) Indebtedness pursuant to the Senior Notes
or guarantees thereof, as applicable, (iii) the IRB Indebtedness, (iv)
any other Indebtedness permitted to be incurred by the Company or a
Restricted Subsidiary under the terms of the Indenture, unless the
instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of
payment to the Notes or the Subsidiary Guarantees, as applicable, and
(v) all Obligations with respect to the foregoing. Notwithstanding
anything to the contrary in the foregoing, Senior Debt will not
include (w) any liability for federal, state, local or other taxes
owed or owing by the Company or any Subsidiary Guarantor, (x) any
Indebtedness of the Company or any Subsidiary Guarantor to any of
their respective Subsidiaries or other Affiliates, (y) any trade
payables or (z) any Indebtedness that is incurred in violation of the
Indenture. To the extent provided in the Indenture, Senior Debt must
be paid before the Notes may be paid. The Company agrees and each
Holder of Notes by accepting a Note consents and agrees to the
subordination provided in the Indenture and authorizes the Trustee to
give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in initial denominations of $1,000 and integral
multiples of $1,000. The transfer of the Notes may be registered and
the Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
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12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Notes and the Subsidiary Guarantees may
be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a
purchase of or, tender offer or exchange offer for Notes), and any
existing Default or Event of Default or compliance with any provision
of the Indenture, the Notes or the Subsidiary Guarantees may be waived
with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for Notes).
Without the consent of any Holder of Notes, the Company and the
Trustee may amend or supplement the Indenture, the Subsidiary
Guarantees or the Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the
Company's or a Subsidiary Guarantor's obligations to Holders of Notes
in the case of a merger, consolidation or sale of assets, to make any
change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights
under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act. Any
amendments with respect to subordination provisions of the Notes or
the Subsidiary Guarantees would require the consent of the Holders of
at least 75% in aggregate amount of Notes then outstanding if such
amendment would adversely affect the rights of the Holders of Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due, upon redemption, acceleration or
otherwise, of interest on, or Liquidated Damages with respect to, the
Notes; (ii) default in payment when due of the principal of or
premium, if any, on the Notes; (iii) failure by the Company for 30
days after receipt of written notice from the Trustee or from Holders
of at least 25% of the aggregate principal amount of the Notes then
outstanding to comply with the provisions described under Sections
4.07, 4.09, 4.10 or 4.14 of the Indenture; (iv) failure by the Company
for 60 days after receipt of written notice from the Trustee or from
Holders of at least 25% of the aggregate principal amount of the Notes
then outstanding to comply with any of its other agreements in the
Indenture or the Notes; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries or the payment of which
is Guaranteed by the Company or any of its Restricted Subsidiaries
(other than Indebtedness owed to the Company or its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is
created after the date hereof, if both (a) such default either (1)
results from the failure to pay any such Indebtedness at its stated
final maturity (after giving effect to any applicable grace periods)
or (2) relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated maturity and results
in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated 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 (after giving effect to any
applicable grace periods), or the maturity of which has been so
accelerated, aggregate $15.0 million or more; (vi) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments
(other than any judgments as to which a reputable insurance company
has accepted liability) aggregating
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in excess of $15.0 million, which judgments are not paid, discharged,
bonded or stayed for a period of 60 days after their entry; (vii)
except as permitted by the Indenture, any Subsidiary Guarantee will be
held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor,
will deny or disaffirm its obligations under its Subsidiary Guarantee;
and (viii) certain events of bankruptcy or insolvency with respect to
the Company, any of its Significant Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Restricted Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately; PROVIDED, however, that, so long as any Designated Senior
Debt shall be outstanding, no such acceleration shall be effective
until the earlier of (i) acceleration of any such Designated Senior
Debt or (ii) five Business Days after the giving of written notice to
the Company and the Representatives under the Designated Senior Debt
of such acceleration. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or
insolvency with respect to the Company, any Significant Restricted
Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Restricted Subsidiary, all
outstanding Notes will become due and payable without further action
or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. In the event of any Event
of Default specified in clause (v) above, such Event of Default and
all consequences thereof (including, without limitation, any
acceleration or resulting payment default) shall be annulled, waived
and rescinded, automatically and without any action by the Trustee or
the Holders of the Notes, if within 20 days after such Event of
Default arose (x) the Indebtedness or guarantee that is the basis for
such Event of Default has been discharged in a manner that does not
violate the terms of the Indenture or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case
may be) giving rise to such Event of Default. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, interest or
Liquidated Damages) if it determines that withholding notice is in
their interest. In addition, the Trustee shall have no obligation to
accelerate the Notes if, in the best judgment of the Trustee,
acceleration is not in the best interests of the Holders.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for the Company, the Subsidiary Guarantors or their
respective Affiliates, and may otherwise deal with the Company, the
Subsidiary Guarantors or their respective Affiliates, as if it were
not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary
Guarantor, as such, shall have any liability for any obligations of
the Company under the Notes, any Subsidiary Guarantee or the Indenture
or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a
Note waives and releases all such liability. The waiver and release
are part of the consideration for
A-2-8
issuance of the Notes and the Subsidiary Guarantees. Such waiver may
not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is
against public policy.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder 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).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Notes under the
Indenture, Holders of Transferred Restricted Securities (as defined in
the Registration Rights Agreement) shall have all the rights set forth
in the Registration Rights Agreement, dated as of the date hereof,
among the Company, the Subsidiary Guarantors and the Initial Purchaser
(the "Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes and the Trustee
may use CUSIP numbers in notices of redemption as a convenience to the
Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Jitney-Jungle Stores of America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
A-2-9
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary Global
Note for other Global Notes have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
---------------- --------------------- --------------------- ----------------------- -----------------------
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(1) of the Indenture)
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September 15, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "COMPANY"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("INTERSTATE"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern Jitney Jungle Company, a Mississippi corporation
("SOUTHERN"), Pump And Save, Inc., a Mississippi corporation ("PUMP AND SAVE"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern,
Pump And Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D to the Indenture, the "SUBSIDIARY
GUARANTORS") and Marine Midland Bank, as trustee (the "TRUSTEE"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $ _______________ principal amount of Senior
Subordinated Notes which are evidenced by one or more Rule 144A Global Notes and
held with the Depositary in the name of ______________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Subordinated Notes to a Person who will take delivery
thereof in the form of an equal principal amount of Senior Subordinated Notes
evidenced by one or more Regulation S Global Notes, which amount, immediately
after such transfer, is to be held with the Depositary through Euroclear or
Cedel or both.
In connection with such request and in respect of such Senior Subordinated
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Senior Subordinated Notes was not made to a person in
the United States;
(2) either:
B-1-1
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest in a
Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Subordinated
Notes, the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston
B-1-2
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September 15, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "COMPANY"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("INTERSTATE"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern Jitney Jungle Company, a Mississippi corporation
("SOUTHERN"), Pump And Save, Inc., a Mississippi corporation ("PUMP AND SAVE"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern,
Pump And Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D to the Indenture, the "SUBSIDIARY
GUARANTORS") and Marine Midland Bank, as trustee (the "TRUSTEE"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_________ principal amount of Senior Subordinated
Notes which are evidenced by one or more Regulation S Global Notes and held with
the Depositary through Euroclear or Cedel in the name of
__________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Senior Subordinated
Notes to a Person who will take delivery thereof in the form of an equal
principal amount of Senior Subordinated Notes evidenced by one or more Rule 144A
Global Notes, to be held with the Depositary.
In connection with such request and in respect of such Senior Subordinated
Notes, the Transferor hereby certifies that:
[CHECK ONE]
/ / such transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Subordinated Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the Senior
Subordinated Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A;
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or
/ / such transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A or Rule 144 and the Transferor further
certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is supported by
(x) if such transfer is in respect of a principal amount of Senior
Subordinated Notes at the time of Transfer of $250,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Subordinated Notes at the time of transfer of less than $250,000,
(1) a certificate executed in the form of EXHIBIT C to the Indenture and
(2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the
effect that (1) such Transfer is in compliance with the Securities Act and
(2) such Transfer complies with any applicable blue sky securities laws of
any state of the United States;
or
/ / such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a copy
of which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and such Senior Subordinated Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Senior
Subordinated Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
B-2-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston
B-2-3
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES FOR OTHER DEFINITIVE SENIOR SUBORDINATED
NOTES OR BENEFICIAL INTERESTS IN GLOBAL NOTES
(Pursuant to Section 2.06(b) or (e) of the Indenture)
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September 15, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "COMPANY"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("INTERSTATE"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern Jitney Jungle Company, a Mississippi corporation
("SOUTHERN"), Pump And Save, Inc., a Mississippi corporation ("PUMP AND SAVE"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern,
Pump And Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D to the Indenture, the "SUBSIDIARY
GUARANTORS") and Marine Midland Bank, as trustee (the "TRUSTEE"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This relates to $ principal amount of Senior Subordinated
Notes which are evidenced by one or more Definitive Senior Subordinated Notes in
the name of (the "Transferor"). The Transferor has
requested an exchange or transfer of such Definitive Senior Subordinated Note(s)
in the form of an equal principal amount of Senior Subordinated Notes evidenced
by (a) one or more Definitive Senior Subordinated Notes, to be delivered to the
Transferor or, in the case of a transfer of such Senior Subordinated Notes, to
such Person as the Transferor instructs the Trustee or (b) a beneficial interest
in one or more Global Notes.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
/ / 1. the Surrendered Senior Subordinated Notes are being acquired for the
Transferor's own account, without transfer;
or
/ / 2. the Surrendered Senior Subordinated Notes are being transferred to the
Company;
B-3-1
or
/ / 3. the Surrendered Senior Subordinated Notes are being transferred
pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the
Surrendered Senior Subordinated Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the
Surrendered Senior Subordinated Notes for its own account, or for one
or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the requirements of Rule 144A;
or
/ / 4. the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
/ / 5. the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 903 or Rule 904 under the Securities
Act;
or
/ / 6. the Surrendered Senior Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Senior Subordinated Notes at the time of Transfer of $250,000 or
more, a certificate executed by the Transferee in the form of EXHIBIT
C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of transfer
of less than $250,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any state of
the United States;
or
/ / 7. the Surrendered Senior Subordinated Notes are being transferred
pursuant to an effective registration statement under the Securities
Act;
or
/ / 8. such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Senior Subordinated Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in accordance
with the requirements of the exemption claimed, which certification is
supported by an
B-3-2
Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in
form reasonably acceptable to the Company and to the Registrar, to the
effect that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston
B-3-3
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September 15, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "COMPANY"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("INTERSTATE"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern Jitney Jungle Company, a Mississippi corporation
("SOUTHERN"), Pump And Save, Inc., a Mississippi corporation ("PUMP AND SAVE"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern,
Pump And Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D to the Indenture, the "SUBSIDIARY
GUARANTORS") and Marine Midland Bank, as trustee (the "TRUSTEE"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $__________ principal amount of Senior Subordinated
Notes which are evidenced by a beneficial interest in one or more Rule 144A
Global Notes or Regulation S Permanent Global Notes in the name of
(the "Transferor"). The Transferor has requested an exchange or transfer
of such beneficial interest in the form of an equal principal amount of Senior
Subordinated Notes evidenced by one or more Definitive Senior Subordinated
Notes, to be delivered to the Transferor or, in the case of a transfer of such
Senior Subordinated Notes, to such Person as the Transferor instructs the
Trustee.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
/ / 1. the Surrendered Senior Subordinated Notes are being transferred to the
beneficial owner of such Senior Subordinated Notes;
or
/ / 2. the Surrendered Senior Subordinated Notes are being transferred
pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended
B-4-1
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Surrendered Senior Subordinated Notes are
being transferred to a Person that the Transferor reasonably believes
is purchasing the Surrendered Senior Subordinated Notes for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting they requirements of
Rule 144A;
or
/ / 3. the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
/ / 4. the Surrendered Senior Subordinated Notes are being transferred
pursuant to an effective registration statement under the Securities
Act;
or
/ / 5. the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 903 or Rule 904 under the Securities
Act;
or
/ / 6. the Surrendered Senior Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Senior Subordinated Notes at the time of Transfer of $250,000 or
more, a certificate executed by the Transferee in the form of EXHIBIT
C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of transfer
of less than $250,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any state of
the United States;
or
/ / 7. such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Senior Subordinated Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and in accordance
with the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the
B-4-2
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
B-4-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston
B-4-4
EXHIBIT C
---------
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September 15, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "COMPANY"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("INTERSTATE"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc., a Mississippi corporation
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), Southern Jitney Jungle Company, a Mississippi corporation
("SOUTHERN"), Pump And Save, Inc., a Mississippi corporation ("PUMP AND SAVE"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("DELCHAMPS") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Southern,
Pump And Save, DAC, Delchamps and SCSI a "SUBSIDIARY GUARANTOR" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D to the Indenture, the "SUBSIDIARY
GUARANTORS") and Marine Midland Bank, as trustee (the "TRUSTEE"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $__________ aggregate
principal amount of:
(a) / / Beneficial interests, or
(b) / / Definitive Senior Subordinated Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior
Subordinated Notes of any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Senior Subordinated
Notes or any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Senior Subordinated
Notes have not been registered under the Securities Act, and that the Senior
Subordinated Notes and any interest therein 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 the Senior Subordinated Notes or any interest therein, (A) we will do so
only (1)(a) to a person who we reasonably believe is a qualified institutional
buyer (as defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of 144A, (b) in a transaction meeting the requirements
of Rule 144 under the Securities Act, (c) outside the United States to a foreign
person in a transaction meeting
C-1
the requirements of Rule 904 of the Securities Act, (d) to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act who prior to the consummation of such sale
furnishes you with a signed certificate substantially in the form hereof or (e)
in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel), (2) to the Company or any
of its subsidiaries or (3) pursuant to an effective registration statement and,
in each case, in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction and (B) we will, and each
subsequent holder will be required to, notify any purchaser from it of the
security evidenced hereby of the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior
Subordinated Notes or beneficial interests, we will be required to furnish to
you and the Company such certifications, 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 Senior
Subordinated Notes purchased by us will bear a legend to the foregoing effect.
4. 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 Senior Subordinated
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial
interests therein 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.
6. We are not acquiring the Senior Subordinated Notes with a view to
any distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
C-2
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.
______________________________
[Insert Name of Accredited
Investor]
By:___________________________
Name:
Title:
Dated: ______________, ____
C-3
EXHIBIT D
---------
SUBSIDIARY GUARANTEE
Subject to Section 11.05 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes and the Obligations of the Company under the Notes or under
the Indenture, that: (a) the principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration,
redemption or otherwise, and interest on overdue principal, premium, if any, (to
the extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes and all other payment Obligations of the Company
to the Holders or the Trustee under the Indenture or under the Notes will be
promptly paid in full and performed, all in accordance with the terms thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other payment 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, redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are (a)
expressly set forth in Article 11 of the Indenture and (b) subordinated to
Senior Debt as set forth in the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Section 11.04 of the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the Notes and the Indenture and (ii) the amount, if any, which would not
have (A) rendered such Subsidiary Guarantor "insolvent" (as such term is defined
in the Bankruptcy Law and in the Debtor and Creditor Law of the State of New
York) or (B) left such Subsidiary Guarantor with unreasonably small capital at
the time its Subsidiary Guarantee of the Notes was entered into; PROVIDED that,
it will be a presumption in any lawsuit or other proceeding in which a
Subsidiary Guarantor is a party that the amount guaranteed pursuant to the
Subsidiary Guarantee is the amount set forth in clause (i) above unless any
creditor, or representative of creditors of such Subsidiary Guarantor, or debtor
in possession or trustee in bankruptcy of such Subsidiary ▇▇▇▇▇▇▇▇▇,
▇-▇
otherwise proves in such a lawsuit that the aggregate liability of the
Subsidiary Guarantor is limited to the amount set forth in clause (ii) above.
The Indenture provides that, in making any determination as to the solvency or
sufficiency of capital of a Subsidiary Guarantor in accordance with the previous
sentence, the right of such Subsidiary Guarantors to contribution from other
Subsidiary Guarantors and any other rights such Subsidiary Guarantors may have,
contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
Dated as of ___________________ [NAME OF GUARANTOR]
By:
-----------------------------------
Name:
Title:
D-2
EXHIBIT E
---------
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
___________, between Subsidiary Guarantor (the "New Subsidiary Guarantor"), a
subsidiary of Jitney-Jungle Stores of America, Inc., a Mississippi corporation
(the "Company"), and Marine Midland Bank, as trustee under the indenture
referred to below (the "Trustee"). Capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Indenture (as
defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of September 15, 1997, providing for
the issuance of an aggregate principal amount of $200,000,000 of 103/8% Senior
Subordinated Notes due 2007 (the "Senior Subordinated Notes");
WHEREAS, Sections 4.18 and 11.03 of the Indenture provide that under
certain circumstances the Company is required to cause certain of its
Subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the Senior Subordinated Notes pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO SUBSIDIARY GUARANTEE. The New Subsidiary Guarantor
hereby agrees, jointly and severally with all other Subsidiary Guarantors, to
guarantee the Company's Obligations under the Senior Subordinated Notes and the
Indenture on the terms and subject to the conditions set forth in Article 11 of
the Indenture and to be bound by all other applicable provisions of the
Indenture.
E-1
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Senior Subordinated Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Subordinated Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Subsidiary
Guarantor.
E-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed and attested, all as of the date first above written.
Dated: ________________ [NAME OF NEW SUBSIDIARY GUARANTOR]
By: ____________________________
Name:
Title:
Dated: ________________ MARINE MIDLAND BANK,
as Trustee
By: ____________________________
Name:
Title:
E-3
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT Section INDENTURE SECTION
310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.03; 7.10
(c)......................................................... N.A.
311 (a) ........................................................ 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.05
(b)......................................................... 13.03
(c)......................................................... 13.03
313 (a)......................................................... 7.06
(b)(1)...................................................... 7.06
(b)(2)...................................................... 7.06; 7.07
(c)......................................................... 7.06;13.02
(d)......................................................... 7.06
314 (a)......................................................... 4.03;13.05
(b)......................................................... N.A.
(c)(1)...................................................... 13.04
(c)(2)...................................................... 13.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 13.05
(f)......................................................... N.A.
315 (a)......................................................... 7.01
(b)......................................................... 7.05,13.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316 (a)(last sentence).......................................... 2.09
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
(c)......................................................... 2.13
317 (a)(1)...................................................... 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.04
318 (a)......................................................... 13.01
(b)......................................................... N.A.
(c)......................................................... 13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions................................................ 1
Section 1.02. Other Definitions.......................................... 15
Section 1.03. Incorporation by Reference of Trust Indenture Act.......... 16
Section 1.04. Rules of Construction...................................... 16
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating............................................ 17
Section 2.02. Execution and Authentication............................... 18
Section 2.03. Registrar and Paying Agent................................. 19
Section 2.04. Paying Agent to Hold Money in Trust........................ 19
Section 2.05. Holder Lists............................................... 20
Section 2.06. Transfer and Exchange...................................... 20
Section 2.07. Replacement Notes.......................................... 29
Section 2.08. Outstanding Notes.......................................... 29
Section 2.09. Treasury Notes............................................. 29
Section 2.10. Temporary Notes............................................ 30
Section 2.11. Cancellation............................................... 30
Section 2.12. Defaulted Interest......................................... 30
Section 2.13. Record Date................................................ 30
Section 2.14. Computation of Interest.................................... 31
Section 2.15. CUSIP Number............................................... 31
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee......................................... 31
Section 3.02. Selection of Notes to be Redeemed.......................... 31
Section 3.03. Notice of Redemption....................................... 32
Section 3.04. Effect of Notice of Redemption............................. 32
Section 3.05. Deposit of Redemption or Purchase Price.................... 33
Section 3.06. Notes Redeemed in Part..................................... 33
Section 3.07. Optional Redemption........................................ 33
Section 3.08. Mandatory Redemption....................................... 34
Section 3.09. Repurchase Offers.......................................... 34
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes........................................... 36
Section 4.02. Maintenance of Office or Agency............................ 36
i
Section 4.03. Commission Reports......................................... 37
Section 4.04. Compliance Certificate..................................... 37
Section 4.05. Taxes...................................................... 38
Section 4.06. Stay, Extension and Usury Laws............................. 38
Section 4.07. Restricted Payments........................................ 38
Section 4.08. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.................................... 41
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock...................................................... 42
Section 4.10. Assets Sales............................................... 44
Section 4.11. Transactions With Affiliates............................... 45
Section 4.12. Liens...................................................... 45
Section 4.13. Sale and Leaseback Transactions............................ 46
Section 4.14. Offer to Purchase Upon Change of Control................... 46
Section 4.15. Corporate Existence........................................ 47
Section 4.16. Limitation on Issuances of Capital Stock of Wholly Owned
Restricted Subsidiaries.................................... 47
Section 4.17. Business Activities........................................ 47
Section 4.18. Additional Guarantees...................................... 47
Section 4.19. Payment for Consents....................................... 48
Section 4.20. No Senior Subordinated Debt................................ 48
Section 4.21. No Restrictions on Consummation of Delchamps Acquisition... 48
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.................... 49
Section 5.02. Successor Corporation Substituted.......................... 49
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.......................................... 49
Section 6.02. Acceleration............................................... 51
Section 6.03. Other Remedies............................................. 52
Section 6.04. Waiver of Past Defaults.................................... 52
Section 6.05. Control by Majority........................................ 53
Section 6.06. Limitation on Suits........................................ 53
Section 6.07. Rights of Holders of Notes to Receive Payment.............. 53
Section 6.08. Collection Suit by Trustee................................. 53
Section 6.09. Trustee May File Proofs of Claim........................... 54
Section 6.10. Priorities................................................. 54
Section 6.11. Undertaking for Costs...................................... 54
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.......................................... 55
Section 7.02. Rights of Trustee.......................................... 56
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Section 7.03. Individual Rights of Trustee............................... 56
Section 7.04. Trustee's Disclaimer....................................... 56
Section 7.05. Notice of Defaults......................................... 57
Section 7.06. Reports by Trustee to Holders of the Notes................. 57
Section 7.07. Compensation and Indemnity................................. 57
Section 7.08. Replacement of Trustee..................................... 58
Section 7.09. Successor Trustee by Merger, etc........................... 59
Section 7.10. Eligibility; Disqualification.............................. 59
Section 7.11. Preferential Collection of Claims Against Company.......... 59
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance... 59
Section 8.02. Legal Defeasance and Discharge............................. 60
Section 8.03. Covenant Defeasance........................................ 60
Section 8.04. Conditions to Legal or Covenant Defeasance................. 60
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions...................... 62
Section 8.06. Repayment to Company....................................... 62
Section 8.07. Reinstatement.............................................. 63
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes........................ 63
Section 9.02. With Consent of Holders of Notes........................... 64
Section 9.03. Compliance with Trust Indenture Act........................ 65
Section 9.04. Revocation and Effect of Consents.......................... 65
Section 9.05. Notation on or Exchange of Notes........................... 65
Section 9.06. Trustee to Sign Amendments, etc............................ 66
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.................................. 66
Section 10.02. Liquidation; Dissolution; Bankruptcy...................... 66
Section 10.03. Default on Designated Senior Debt......................... 66
Section 10.04. Acceleration of Notes..................................... 67
Section 10.05. When Distribution Must Be Paid Over....................... 67
Section 10.06. Notice by the Company..................................... 67
Section 10.07. Subrogation............................................... 67
Section 10.08. Relative Rights........................................... 68
Section 10.09. Subordination May Not Be Impaired by the Company.......... 68
Section 10.10. Distribution or Notice to Representative.................. 69
Section 10.11. Rights of Trustee and Paying Agent........................ 69
Section 10.12. Authorization to Effect Subordination..................... 69
Section 10.13. Amendments................................................ 70
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ARTICLE 11
GUARANTEE OF NOTES
Section 11.01. Subsidiary Guarantee........................................ 70
Section 11.02. Execution and Delivery of Subsidiary Guarantee.............. 71
Section 11.03. Subsidiary Guarantors May Consolidate, etc., on
Certain Terms............................................... 71
Section 11.04. Releases Following Sale of Assets, Merger, Sale of
Capital Stock Etc........................................... 72
Section 11.05. Limitation on Subsidiary Guarantor Liability................ 73
Section 11.06. "Trustee" to Include Paying Agent........................... 73
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEE
Section 12.01. Agreement to Subordinate.................................... 73
Section 12.02. Liquidation; Dissolution; Bankruptcy........................ 73
Section 12.03. Default on Designated Senior Debt........................... 74
Section 12.04. Acceleration of Subsidiary Guarantees....................... 74
Section 12.05. When Distribution Must Be Paid Over......................... 74
Section 12.06. Notice by Subsidiary Guarantor.............................. 75
Section 12.07. Subrogation................................................. 75
Section 12.08. Relative Rights............................................. 75
Section 12.09. Subordination May Not Be Impaired by Subsidiary Guarantor... 76
Section 12.10. Distribution or Notice to Representative.................... 76
Section 12.11. Rights of Trustee and Paying Agent.......................... 77
Section 12.12. Authorization to Effect Subordination....................... 77
Section 12.13. Amendments.................................................. 77
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls................................ 78
Section 13.02. Notices..................................................... 78
Section 13.03. Communication by Holders of Notes with Other Holders
of Notes.................................................... 79
Section 13.04. Certificate and Opinion as to Conditions Precedent.......... 79
Section 13.05. Statements Required in Certificate or Opinion............... 79
Section 13.06. Rules by Trustee and Agents................................. 80
Section 13.07. No Personal Liability of Directors, Officers, Employees and
Stockholders................................................ 80
Section 13.08. Governing Law............................................... 80
Section 13.09. No Adverse Interpretation of Other Agreements............... 80
Section 13.10. Successors.................................................. 80
Section 13.11. Severability................................................ 80
Section 13.12. Counterpart Originals....................................... 80
Section 13.13. Table of Contents, Headings, etc............................ 81
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit D FORM OF SUBSIDIARY GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
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