1
EXHIBIT 4.1
_______________________________________________________________________________
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC.
AND
FLEET NATIONAL BANK,
as Trustee
____________________________
INDENTURE
Dated as of May 23, 1996
____________________________
$575,000,000
11 1/4% Senior Subordinated Notes
due 2007
_______________________________________________________________________________
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)................................... 8.10
(a)(2)................................... 8.10
(a)(3)................................... N.A.
(a)(4)................................... N.A.
(a)(5)................................... 8.10; 8.11
(b)...................................... 8.08; 8.10;
13.02
(c)...................................... N.A.
311(a)...................................... 8.11
(b)...................................... 8.11
(c)...................................... N.A.
312(a)...................................... 2.05
(b)...................................... 13.03
(c)...................................... 13.03
313(a)...................................... 8.06
(b)(1)................................... N.A.
(b)(2)................................... 8.06
(c)...................................... 8.06; 13.02
(d)...................................... 8.06
314(a)...................................... 5.07; 5.09;
13.02
(b)...................................... N.A.
(c)(1)................................... 8.02; 13.04
(c)(2)................................... 8.02; 13.04
(c)(3)................................... N.A.
(d)...................................... N.A.
(e)...................................... 13.05
(f)...................................... N.A.
315(a)...................................... 8.01(b)
(b)...................................... 8.05; 13.02
(c)...................................... 8.01(a)
(d)...................................... 8.01(c)
(e)...................................... 7.11
316(a)(last sentence)....................... 2.09
(a)(1)(A)................................ 7.05
(a)(1)(B)................................ 7.04
(a)(2)................................... N.A.
(b)...................................... 7.07
(c)......................................
317(a)(1)................................... 7.08
(a)(2)................................... 7.09
(b)...................................... 2.04
318(a)...................................... 13.01
(c)...................................... 13.01
----------------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Page
Section 1.01 Definitions............................. 1
Section 1.02 Incorporation by Reference of TIA....... 31
Section 1.03 Rules of Construction................... 32
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating......................... 32
Section 2.02 Execution and Authentication............ 33
Section 2.03 Registrar and Paying Agent.............. 34
Section 2.04 Paying Agent To Hold Assets in
Trust................................. 35
Section 2.05 Holder Lists............................ 35
Section 2.06 Transfer and Exchange................... 36
Section 2.07 Replacement Securities.................. 38
Section 2.08 Outstanding Securities.................. 38
Section 2.09 Treasury Securities..................... 39
Section 2.10 Temporary Securities.................... 39
Section 2.11 Cancellation............................ 39
Section 2.12 Defaulted Interest...................... 40
Section 2.13 CUSIP Number............................ 40
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee...................... 40
Section 3.02 Selection of Securities To Be
Redeemed.............................. 41
Section 3.03 Notice of Redemption.................... 41
Section 3.04 Effect of Notice of Redemption.......... 42
Section 3.05 Deposit of Redemption Price............. 42
Section 3.06 Securities Redeemed in Part............. 43
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Page
ARTICLE FOUR
SUBORDINATION
Section 4.01 Securities Subordinated to Senior
Indebtedness.......................... 43
Section 4.02 Suspension of Payment When Senior
Indebtedness in Default............... 44
Section 4.03 Securities Subordinated to Prior
Payment of All Senior
Indebtedness on Dissolution,
Liquidation or Reorganization of
Company............................... 46
Section 4.04 Holders To Be Subrogated to Rights
of Holders of Senior
Indebtedness.......................... 48
Section 4.05 Obligations of the Company
Unconditional......................... 48
Section 4.06 Trustee Entitled To Assume
Payments Not Prohibited in
Absence of Notice..................... 49
Section 4.07 Application by Trustee of Assets
Deposited with It..................... 49
Section 4.08 No Waiver of Subordination
Provisions............................ 50
Section 4.09 Holders Authorize Trustee To
Effectuate Subordination of
Securities............................ 51
Section 4.10 Right of Trustee To Hold Senior
Indebtedness.......................... 52
Section 4.11 No Suspension of Remedies............... 52
Section 4.12 No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness........ 52
ARTICLE FIVE
COVENANTS
Section 5.01 Payment of Securities................... 53
Section 5.02 Maintenance of Office or Agency......... 53
Section 5.03 Limitation on Restricted Payments....... 54
Section 5.04 Corporate Existence..................... 55
Section 5.05 Payment of Taxes and Other Claims....... 55
Section 5.06 Maintenance of Properties and
Insurance............................. 56
Section 5.07 Compliance Certificate; Notice of
Default............................... 57
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Page
Section 5.08 Compliance with Laws.................... 58
Section 5.09 SEC Reports............................. 58
Section 5.10 Waiver of Stay, Extension or Usury
Laws.................................. 58
Section 5.11 Limitation on Transactions with
Affiliates............................ 59
Section 5.12 Limitation on Incurrences of
Additional Indebtedness............... 61
Section 5.13 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.......................... 61
Section 5.14 Limitation on Liens..................... 62
Section 5.15 Limitation on Change of Control......... 63
Section 5.16 Limitation on Asset Sales............... 65
Section 5.17 Limitation on Subsidiary Assets
and Indebtedness...................... 68
Section 5.18 Limitation on Preferred Stock of
Restricted Subsidiaries............... 70
Section 5.19 Limitation on Other Senior
Subordinated Indebtedness............. 70
Section 5.20 Limitation on Restricted and
Unrestricted Subsidiaries............. 71
ARTICLE SIX
SUCCESSOR CORPORATION
Section 6.01 Limitation on Mergers and Certain
Other Transactions.................... 72
Section 6.02 Successor Corporation Substituted....... 73
ARTICLE SEVEN
DEFAULT AND REMEDIES
Section 7.01 Events of Default....................... 73
Section 7.02 Acceleration............................ 75
Section 7.03 Other Remedies.......................... 76
Section 7.04 Waiver of Past Defaults................. 76
Section 7.05 Control by Majority..................... 76
Section 7.06 Limitation on Suits..................... 77
Section 7.07 Rights of Holders To Receive
Payment............................... 77
Section 7.08 Collection Suit by Trustee.............. 77
Section 7.09 Trustee May File Proofs of Claim........ 78
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Page
Section 7.10 Priorities.............................. 78
Section 7.11 Rights and Remedies Cumulative.......... 79
Section 7.12 Delay or Omission Not Waiver............ 79
Section 7.13 Undertaking for Costs................... 79
ARTICLE EIGHT
TRUSTEE
Section 8.01 Duties of Trustee....................... 80
Section 8.02 Rights of Trustee....................... 81
Section 8.03 Individual Rights of Trustee............ 82
Section 8.04 Trustee's Disclaimer.................... 82
Section 8.05 Notice of Default....................... 83
Section 8.06 Reports by Trustee to Holders........... 83
Section 8.07 Compensation and Indemnity.............. 83
Section 8.08 Replacement of Trustee.................. 84
Section 8.09 Successor Trustee by Merger, Etc........ 85
Section 8.10 Eligibility; Disqualification........... 86
Section 8.11 Preferential Collection of Claims
Against Company....................... 86
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Termination of the Company's
Obligations........................... 86
Section 9.02 Legal Defeasance and Covenant
Defeasance............................ 88
Section 9.03 Application of Trust Money.............. 92
Section 9.04 Repayment to the Company or the
Guarantors............................ 92
Section 9.05 Reinstatement........................... 93
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders.............. 93
Section 10.02 With Consent of Holders................. 94
Section 10.03 Compliance with TIA..................... 95
Section 10.04 Revocation and Effect of Consents....... 96
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Page
Section 10.05 Notation on or Exchange of
Securities............................ 96
Section 10.06 Trustee To Sign Amendments, Etc......... 97
ARTICLE ELEVEN
GUARANTEE
Section 11.01 Unconditional Guarantee................. 97
Section 11.02 Subordination of Guarantee.............. 98
Section 11.03 Severability............................ 99
Section 11.04 Release of a Guarantor.................. 99
Section 11.05 Limitation of Guarantor's
Liability............................. 99
Section 11.06 Guarantors May Consolidate, etc.,
on Certain Terms...................... 100
Section 11.07 Contribution............................ 100
Section 11.08 Waiver of Subrogation................... 100
Section 11.09 Execution of Guarantee.................. 101
Section 11.10 Waiver of Stay, Extension or Usury
Laws.................................. 102
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 12.01 Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness...... 102
Section 12.02 Suspension of Guarantee
Obligations When Guarantor
Senior Indebtedness in Default........ 103
Section 12.03 Guarantee Obligations Subordinated
to Prior Payment of All
Guarantor Senior Indebtedness on
Dissolution, Liquidation or
Reorganization of Such Guarantor...... 105
Section 12.04 Holders of Guarantee Obligations
To Be Subrogated to Rights of
Holders of Guarantor Senior
Indebtedness.......................... 107
Section 12.05 Obligations of the Guarantors
Unconditional......................... 107
Section 12.06 Trustee Entitled To Assume
Payments Not Prohibited in
Absence of Notice..................... 108
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Page
Section 12.07 Application by Trustee of Assets
Deposited with It..................... 108
Section 12.08 No Waiver of Subordination
Provisions............................ 109
Section 12.09 Holders Authorize Trustee To
Effectuate Subordination of
Guarantee Obligations................. 110
Section 12.10 Right of Trustee To Hold Guarantor
Senior Indebtedness................... 111
Section 12.11 No Suspension of Remedies............... 111
Section 12.12 No Fiduciary Duty of Trustee to
Holders of Guarantor Senior
Indebtedness.......................... 111
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 TIA Controls............................ 112
Section 13.02 Notices................................. 112
Section 13.03 Communications by Holders with
Other Holders......................... 114
Section 13.04 Certificate and Opinion as to
Conditions Precedent.................. 114
Section 13.05 Statements Required in Certificate
or Opinion............................ 114
Section 13.06 Rules by Trustee, Paying Agent,
Registrar............................. 115
Section 13.07 Legal Holidays.......................... 115
Section 13.08 Governing Law........................... 115
Section 13.09 No Adverse Interpretation of Other
Agreements............................ 115
Section 13.10 No Recourse Against Others.............. 115
Section 13.11 Successors.............................. 116
Section 13.12 Duplicate Originals..................... 116
Section 13.13 Severability............................ 116
Section 13.14 No Violation............................ 116
Signatures............................................. S-1
Exhibit A - Form of Security
Exhibit B - Guarantee
Note: This Table of Contents shall not, for any purpose, be
deemed to be part of the Indenture.
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INDENTURE dated as of May 23, 1996, between ▇▇▇▇▇'▇ FOOD & DRUG
CENTERS, INC., a Delaware corporation, and FLEET NATIONAL BANK, a national
banking association, as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's
11-1/4% Senior Subordinated Notes due 2007 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquisition" means Cactus Acquisition, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing; provided that Bankers Trust New York Corporation
and The Chase Manhattan Bank, N.A. and their respective Affiliates shall not be
considered to be Affiliates of the Company or any of its Subsidiaries. So long
as the Management Services Agreement is in effect or Yucaipa (together with its
Affiliates) owns voting securities representing more than 10% of the total
voting power of the then outstanding voting securities entitled to vote on a
regular basis for the Board of Directors of the Company, Yucaipa and its
Affiliates shall be deemed Affiliates of the Company.
"Affiliate Transaction" shall have the meaning provided in Section
5.11(a).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Alternate Offer" shall have the meaning provided in Section 5.15(e).
▇▇
-▇-
"▇▇▇▇▇ ▇▇▇▇" means any sale, transfer or other disposition or series
of sales, transfers or other dispositions by the Company or any Restricted
Subsidiary (including, without limitation, any merger or consolidation of any
Restricted Subsidiary with or into another Person (other than the Company or
any wholly owned Restricted Subsidiary) whereby such Restricted Subsidiary
shall cease to be a Restricted Subsidiary) to any Person (other than to the
Company or a wholly owned Restricted Subsidiary) of any assets of the Company
or any Restricted Subsidiary, including, without limitation, assets consisting
of any Capital Stock or other securities held by the Company or any Restricted
Subsidiary, and any Capital Stock issued by any Restricted Subsidiary, in each
case, outside of the ordinary course of business, excluding, however, any sale,
transfer or other disposition, or series of related sales, transfers or other
dispositions (i) resulting in Net Proceeds to the Company and the Restricted
Subsidiaries of $500,000 or less, (ii) pursuant to any foreclosure of assets or
other remedy provided by applicable law to a creditor of the Company or any
Subsidiary with a Lien on such assets, which Lien is permitted under the
Indenture; provided that such foreclosure or other remedy is conducted in a
commercially reasonable manner or in accordance with any Bankruptcy Law, (iii)
involving only Cash Equivalents or inventory in the ordinary course of business
or obsolete equipment in the ordinary course of business consistent with past
practices of the Company, (iv) involving only the lease or sublease of any real
or personal property in the ordinary course of business, (v) pursuant to the
California Disposition or involving the assets described in Schedule 1.01
hereto or (vi) resulting from (a) the designation of any Restricted Subsidiary
as an Unrestricted Subsidiary, or contribution to the capital of any
Unrestricted Subsidiary, in accordance with the applicable provisions hereof or
(b) the sale of the Capital Stock of any Unrestricted Subsidiary or the sale of
all or substantially all of the assets of any Unrestricted Subsidiary.
"Average Life" means, as of any date of determination, with respect
to any debt security, the quotient obtained by dividing (i) the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payments of such debt security multiplied
by the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
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"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or of a subsidiary of such Person or any duly
authorized committee of that Board.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"California Asset Disposition" means the disposition by the Company
of its real and personal property remaining in California following the
California Divestiture, as described in the Prospectus.
"California Disposition" means the California Divestiture and the
California Asset Disposition.
"California Divestiture" means the divestiture by the Company of its
Southern California operations as described in the Prospectus.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated) of
corporate stock, including each class of common stock and preferred stock of
such Person.
"Capitalized Lease Obligation" means obligations under a lease that
is required to be capitalized for financial repurcreporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations determined in
accordance with GAAP.
"Cash Equivalents" means (i) obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof, or
obligations issued by any agency or instrumentality thereof and backed by the
full faith and credit of the United States of America, (ii) commercial paper
rated the highest grade by ▇▇▇▇▇'▇ Investors Service, Inc. and Standard &
Poor's Ratings Group and maturing not more than one year from the date of
creation thereof, (iii) time deposits with, and certificates of deposit and
banker's acceptances issued by, any bank having capital surplus and undivided
profits aggregating at least $500 million and maturing not more than one year
from the date of creation thereof, (iv) repurchase
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agreements that are secured by a perfected security interest in an obligation
described in clause (i) and are with any bank described in clause (iii), (v)
shares of any money market mutual fund that (a) has at least 95% of its assets
invested continuously in the types of investments referred to in clauses (i)
and (ii) above, (b) has net assets of not less than $500 million, and (c) has
the highest rating obtainable from either Standard & Poor's Ratings Group or
▇▇▇▇▇'▇ Investors Service, Inc. and (vi) readily marketable direct obligations
issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Group.
"Change of Control" means the acquisition after the Issue Date, in
one or more transactions, of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) by (i) any Person (other than any Permitted
Holder) or (ii) any group (within the meaning of Section 13(d)(3) of the
Exchange Act) of Persons (excluding any Permitted Holders), in either case, of
any securities of the Company such that, as a result of such acquisition, such
Person or group beneficially owns (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, voting securities representing 40% or
more of the total voting power of the then outstanding voting securities
entitled to vote on a regular basis for the Board of Directors of the Company
(but only to the extent that such beneficial ownership is not shared with any
Permitted Holder who has the power to direct the vote thereof); provided,
however, that no such Change of Control shall be deemed to have occurred if (A)
the Permitted Holders beneficially own, in the aggregate, at such time, voting
securities representing a greater percentage of such voting power than such
other Person or group or (B) at the time of such acquisition, the Permitted
Holders (or any of them) possess the ability (by contract or otherwise) to
elect, or cause the election, of a majority of the members of the Company's
Board of Directors.
"Change of Control Offer" shall have the meaning provided in Section
5.15(a).
"Change of Control Offer Price" shall have the meaning provided in
Section 5.15(a).
"Change of Control Payment Date" shall have the meaning provided in
Section 5.15(b).
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"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such Person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means ▇▇▇▇▇'▇ Food & Drug Centers, Inc., a Delaware
corporation until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"Consent Solicitations" means the consents solicited from holders of
the Smitty's Securities to certain amendments to the respective indentures
under which the Smitty's Securities were issued.
"Consolidated Interest Expense" means for any period, the aggregate
amount of interest, whether expensed or capitalized, paid, accrued or scheduled
to be paid or accrued during such period (except to the extent accrued in a
prior period) in respect of all Indebtedness of the Company and the Restricted
Subsidiaries (including (a) original issue discount on any Indebtedness
(including (without duplication), in the case of the Company, any original
issue discount on the Securities but excluding amortization of debt issuance
costs) and (b) the interest portion of all deferred payment obligations,
calculated in accordance with the effective interest method, in each case to
the extent attributable to such period but excluding the amortization of debt
issuance costs). For purposes of this definition, (a) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Company to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP, (b) interest on
Indebtedness that is determined on a fluctuating basis shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest of such
Indebtedness in effect on the date Consolidated Interest Expense is being
calculated, (c) interest on Indebtedness that may optionally be determined at
an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon
the rate actually chosen, or, if none, then based upon such optional rate
chosen as the Company may designate, and (d) Consolidated Interest Expense
shall be increased or reduced by the net cost
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(including amortization of discount) or benefit associated with Interest Swap
Obligations attributable to such period.
"Consolidated Net Income" means for any period, the aggregate of the
net income (or loss) of the Company and the Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that (a) the net income of any other Person in which the Company or any
Restricted Subsidiary has an interest (which interest does not cause the net
income of such other Person to be consolidated with the net income of the
Company and the Restricted Subsidiaries in accordance with GAAP) shall be
included only to the extent of the amount of dividends or distributions
actually paid to the Company or such Restricted Subsidiary by such other Person
in such period; (b) the net income of any Restricted Subsidiary that is subject
to any Payment Restriction shall be excluded to the extent such Payment
Restriction would actually prevent the payment of an amount that otherwise
could have been paid to, or received by, the Company or a Restricted Subsidiary
not subject to any Payment Restriction; and (c)(i) the net income (or loss) of
any other Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition, (ii) all gains and losses realized on
any Asset Sale or any other sale of assets that would constitute an "Asset
Sale" but for the exceptions set forth in clauses (i), (ii), (v), or (vi) of
the definition thereof; (iii) all gains realized upon or in connection with or
as a consequence of the issuance of the Capital Stock of the Company or any
Restricted Subsidiary and any gains on pension reversions received by the
Company or any Restricted Subsidiary, (iv) all gains and losses realized on the
purchase or other acquisition by the Company or any Restricted Subsidiary of
any securities of the Company or any Restricted Subsidiary, (v) all gains and
losses resulting from the cumulative effect of any accounting change pursuant
to the application of Accounting Principles Board Opinion No. 20, as amended,
or Statement of Financial Accounting Standards No. 121, (vi) all other
extraordinary gains and losses, (vii) (A) all non-cash charges, (B) all
severance, deferred compensation or other employee termination costs, (C) up to
$20 million of compensation expenses resulting from the repurchase or amendment
of certain management stock options, (D) all debt refinancing premiums and (E)
any other reserves or charges (provided, however, that any net cash payments
actually made (after-tax) with respect to the liabilities for which such
reserves or charges were created shall be deducted from Consolidated Net Income
in the period when made), in each case under this clause (vii), recorded by the
Company or any Restricted
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Subsidiary in connection with the Transactions and the California Disposition,
including, without limitation, the integration of operations in the State of
Arizona, (viii) losses incurred by the Company and the Restricted Subsidiaries
resulting from earthquakes and (ix) with respect to the Company and the
Restricted Subsidiaries, all deferred financing costs written off in connection
with the early extinguishment of any Indebtedness, shall each be excluded.
"Consolidated Net Worth" means, with respect to any Person, the total
stockholders' equity (exclusive of any Disqualified Capital Stock) of such
Person and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Credit Agent" means, at any time, the then-acting Administrative
Agent as defined in and under the Credit Agreement, which initially shall be
Bankers Trust Company. The Company shall promptly notify the Trustee of any
change in the Credit Agent.
"Credit Agreement" means the Credit Agreement, dated as of the Issue
Date, by and among the Company as borrower, its subsidiaries as guarantors, the
Lenders referred to therein, Bankers Trust Company and The Chase Manhattan
Bank, as arrangers, and Bankers Trust Company, as administrative agent, as the
same may be amended, extended, renewed, restated, supplemented or otherwise
modified (in each case, in whole or in part, and without limitation as to
amount, terms, conditions, covenants and other provisions) from time to time,
and any agreement governing Indebtedness Incurred to refund, replace or
refinance any borrowings and commitments then outstanding or permitted to be
outstanding under such Credit Agreement or any such prior agreement as the same
may be amended, extended, renewed, restated, supplemented or otherwise modified
(in each case, in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions). The term "Credit Agreement" shall
include all related or ancillary documents, including, without limitation, any
guarantee agreements and security documents. The Company shall promptly notify
the Trustee of any such refunding or refinancing of the Credit Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
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"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Depository" shall mean the Depository Trust Company, New York, New
York, or a successor thereto registered under the Exchange Act or other
applicable statute or regulation.
"Designated Senior Indebtedness" means (i) in the event any
Indebtedness is outstanding under the Credit Agreement, all Senior Indebtedness
under the Credit Agreement and (ii) if no Indebtedness is outstanding under the
Credit Agreement, any other issue of Senior Indebtedness which (a) at the time
of the determination is equal to or greater than $50 million in aggregate
principal amount and (b) is specifically designated in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by the
Company. For purposes of this definition, the term "Credit Agreement" shall
not include any agreement governing Indebtedness Incurred to refund, replace or
refinance borrowings or commitments under the Credit Agreement other than any
such agreements governing Indebtedness Incurred to refund, replace or refinance
the entirety of the borrowings and commitments then outstanding or permitted to
be outstanding thereunder.
"Disqualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person or its subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which it is convertible, puttable or exchangeable, is, or upon the happening of
any event or the passage of time would be, required to be redeemed or
repurchased by such Person or its subsidiaries, including at the option of the
holder thereof, in whole or in part, or has, or upon the happening of an event
or passage of time would have, a redemption or similar payment due on or prior
to the Maturity Date, or any other Capital Stock of such Person or its
subsidiaries designated as Disqualified Capital Stock by such Person at the
time of issuance; provided, however, that if such Capital Stock is either (i)
redeemable or repurchasable solely at the option of such Person or (ii) issued
to employees of the Company or the Subsidiaries or to any plan for the benefit
of such employees, such Capital Stock shall not constitute Disqualified Capital
Stock unless so designated.
"EBITDA" means, for any period, the Consolidated Net Income for such
period, plus, in each case to the extent
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deducted in computing Consolidated Net Income for such period (without
duplication) (i) provisions for income taxes or similar charges recognized by
the Company and the Restricted Subsidiaries accrued during such period, (ii)
depreciation and amortization expense of the Company and the Restricted
Subsidiaries accrued during such period (but only to the extent not included in
Consolidated Interest Expense), (iii) Consolidated Interest Expense of the
Company and the Restricted Subsidiaries for such period, (iv) LIFO charges
(credits) of the Company and the Restricted Subsidiaries for such period, (v)
the amount of any restructuring reserve or charge recorded during such period
in accordance with GAAP, including any such reserve or charge related to the
Transactions or the California Disposition, less, without duplication, the
amount of all net cash payments made by the Company and the Restricted
Subsidiaries during such period to the extent that such cash payments have been
provided for in a restructuring reserve or charge referred to in clause (v)
above (and were not otherwise deducted in the computation of EBITDA for such
period).
"Event of Default" shall have the meaning provided in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Existing Indebtedness" means all indebtedness of the Company and the
Restricted Subsidiaries to the extent outstanding on the Issue Date after
giving effect to the Transactions (other than Indebtedness under the Credit
Agreement and this Indenture), including operating leases outstanding on the
Issue Date that are, or may be, required under GAAP to be reported or
reclassified after the Issue Date as Capitalized Lease Obligations.
"Foreign Exchange Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"GAAP" means generally accepted accounting principles in effect in
the United States of America as of the date of this Indenture.
"Global Security" shall mean a Security which is executed by the
Company and authenticated and delivered by the
18
-10-
Trustee to the Depository or pursuant to the Depository's instruction, all in
accordance with this Indenture and pursuant to a written order, which shall be
registered in the name of the Depository or its nominee and which, together
with any other Global Security representing Securities hereunder, shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities.
"Guarantee" shall have the meaning set forth in Section 5.17.
"Guarantee Condition" shall have the meaning provided in Section
5.17.
"Guarantee Obligations" shall have the meaning provided in Section
12.01.
"Guarantor" means each Person that becomes a guarantor of the
Securities in compliance with the provisions set forth in Section 5.17, until
such Person is released or is deemed released from its Guarantee in accordance
with the provisions hereof.
"Guarantor Payment Blockage Period" shall have the meaning provided
in Section 12.02.
"Guarantor Senior Indebtedness" means, with respect to any Guarantor,
the principal of, premium, if any, and interest on, and all other Obligations
with respect to, any Indebtedness of such Guarantor, whether outstanding on the
Issue Date or thereafter Incurred, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantee of such Guarantor. Without
limiting the generality of the foregoing, "Guarantor Senior Indebtedness" shall
include (x) the principal of, premium, if any, and interest on all Obligations
of every nature of such Guarantor from time to time owed to the lenders under
the Credit Agreement, including, without limitation, the Letter of Credit
Obligations and principal and interest, and all fees, indemnities and expenses
payable under the Credit Agreement, and (y) interest accruing thereon
subsequent to the occurrence of any Event of Default specified in clause (vi)
or (vii) in Section 7.01 relating to the Company or such Guarantor, whether or
not the claim for such interest is allowed under any applicable
19
-11-
Bankruptcy Law. Notwithstanding the foregoing, "Guarantor Senior Indebtedness"
shall not include (a) Indebtedness evidenced by the Guarantee of such
Guarantor, (b) Indebtedness that is expressly subordinate or junior in right of
payment to any Indebtedness of such Guarantor, (c) Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to such Guarantor (other than
Capitalized Lease Obligations), (d) Indebtedness which is represented by
Disqualified Capital Stock, (e) obligations for goods, materials or services
purchased in the ordinary course of business or obligations consisting of trade
payables, (f) Indebtedness of or amounts owed by such Guarantor for
compensation to employees or for services rendered to such Guarantor, (g) any
liability for federal, state, local or other taxes owed or owing by such
Guarantor, (h) Indebtedness of such Guarantor representing a guarantee of
Subordinated Indebtedness or Pari Passu Indebtedness (in each case, with
respect to the Securities or any Guarantee) of the Company or any other
Guarantor, (i) Indebtedness of such Guarantor to a Subsidiary of the Company
and (j) that portion of any Indebtedness which is incurred by such Guarantor in
violation of this Indenture.
"Holder" means the Person in whose name a Security is registered on
the Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligations or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness or other obligation on the balance sheet of such
Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing).
"Indebtedness" means with respect to any Person, without duplication,
(i) all liabilities, contingent or otherwise, of such Person (a) for borrowed
money (whether or not the recourse of the lender is to the whole of the assets
of such Person or only to a portion thereof), (b) evidenced by bonds, notes,
debentures, drafts accepted or similar instruments or letters of credit or
representing the balance deferred and unpaid of the purchase price of any
property (other than any such balance that represents an account payable or any
other monetary obligation to a trade creditor (whether or not an Affiliate)
Incurred by such Person in the ordinary course of business of such Person in
connection with obtaining goods,
20
-12-
materials or services and due within twelve months (or such longer period for
payment as is customarily extended by such trade creditor) of the Incurrence
thereof, which account is not overdue by more than 90 days, according to the
original terms of sale, unless such account payable is being contested in good
faith), or (c) for the payment of money relating to a Capitalized Lease
Obligation; (ii) the maximum fixed repurchase price of all Disqualified Capital
Stock of such Person; (iii) reimbursement obligations of such Person with
respect to letters of credit; (iv) obligations of such Person with respect to
Interest Swap Obligations and Foreign Exchange Agreements; (v) all liabilities
of others of the kind described in the preceding clause (i), (ii), (iii) or
(iv) that such Person has guaranteed or that is otherwise its legal liability;
and (vi) all obligations of others secured by a Lien to which any of the
properties or assets (including, without limitation, leasehold interests and
any other tangible or intangible property rights) of such Person are subject,
whether or not the obligations secured thereby shall have been assumed by such
Person or shall otherwise be such Person's legal liability (provided that if
the obligations so secured have not been assumed by such Person or are not
otherwise such Person's legal liability, such obligations shall be deemed to be
in an amount equal to the fair market value of such properties or assets, as
determined in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution). For purposes of the
preceding sentence, the "maximum fixed repurchase price" of any Disqualified
Capital Stock that does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Capital Stock (or any equity security for which it may be exchanged or
converted), such fair market value shall be determined in good faith by the
Board of Directors of such Person, which determination shall be evidenced by a
Board Resolution.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a reputable accounting,
appraisal or nationally recognized investment banking or consulting firm that
is, in the reasonable judgment of the Board of Directors of the Company,
qualified to perform the
21
-13-
tasks for which such firm has been engaged and independent with respect to the
Company and its Affiliates.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Swap Obligation" means any obligation of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a fixed or floating rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or floating rate of interest on the same
notional amount; provided that the term "Interest Swap Obligation" shall also
include interest rate exchange, collar, cap, swap option or similar agreements
providing interest rate protection.
"Investment" by any Person in any other Person means any investment
by such Person in such other Person, whether by share purchase, capital
contribution, loan, advance (other than reasonable loans and advances to
employees for moving and travel expenses, as salary advances or to permit the
purchase of Qualified Capital Stock of the Company and other similar customary
expenses incurred, in each case in the ordinary course of business consistent
with past practice) or similar credit extension constituting Indebtedness of
such other Person, and any guarantee of Indebtedness of any other Person. In
addition, for purposes of Section 5.03, (i) an "Investment" shall be deemed to
have been made at the time any Restricted Subsidiary is designated as an
Unrestricted Subsidiary in an amount (proportionate to the Company's equity
interest in such Subsidiary) equal to the net worth of such Restricted
Subsidiary at the time that such Restricted Subsidiary is designated as an
Unrestricted Subsidiary; and (ii) at any date the aggregate of all Restricted
Payments made as Investments since the Issue Date shall exclude and be reduced
by an amount (proportionate to the Company's equity interest in such
Subsidiary) equal to the net worth of any Unrestricted Subsidiary at the time
that such Unrestricted Subsidiary is designated a Restricted Subsidiary (in
each case "net worth" to be calculated based upon the fair market value of the
assets and liabilities of such Subsidiary as of any such date of designation,
as determined by the Company's Board of Directors).
"Issue Date" means May 23, 1996, the date of original issuance of the
Securities under the Indenture.
22
-14-
"Legal Holiday" shall have the meaning provided in Section 13.07.
"Letter of Credit Obligations" means Indebtedness of the Company or
any of the Subsidiaries with respect to letters of credit issued pursuant to
the Credit Agreement, and for purposes of determining the aggregate amount of
Indebtedness at any time, shall be deemed to consist of (a) the aggregate
maximum amount then available to be drawn under all such letters of credit (the
determination of such maximum amount to assume compliance with all conditions
for drawing), and (b) the aggregate amount that has then been paid by, and not
reimbursed to, the issuers under such letters of credit.
"Lien" means, with respect to any asset or property, any mortgage,
pledge, lien, encumbrance, charge or security interest of any kind in respect
of such asset or property, 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, and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction); provided, however, that in no event
shall an operating lease be deemed to constitute a Lien.
"Management Services Agreement" means that certain Management
Services Agreement dated as of the Issue Date, between the Company and Yucaipa
(as such Management Services Agreement may be amended or replaced, so long as
such amendment or replacement has been approved by a majority of the
Independent Directors (as defined in the Standstill Agreement) and is not
disadvantageous to the Holders in any material respect).
"Maturity Date" means May 15, 2007.
"Merger" means the merger of Acquisition with and into Smitty's
pursuant to the Recapitalization Agreement.
"Net Cash Proceeds" means Net Proceeds received in the form of cash
or Cash Equivalents.
"Net Proceeds" means (a) in the case of any Asset Sale or any
issuance and sale by any Person of Qualified Capital Stock, the aggregate net
proceeds received by such Person after payment of expenses, taxes, commissions
and the like incurred in connection therewith (and, in the case of any Asset
23
-15-
Sale, net of the amount of cash applied to repay Indebtedness secured by the
asset involved in such Asset Sale), whether such proceeds are in cash or in
property (valued at the fair market value thereof at the time of receipt as
determined with respect to any Asset Sale resulting in Net Proceeds in excess
of $10 million in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution) and (b) in the case of
any conversion or exchange of any outstanding Indebtedness or Disqualified
Capital Stock of such Person for or into shares of Qualified Capital Stock of
the Company, the sum of (i) the fair market value of the proceeds received by
the Company in connection with the issuance of such Indebtedness or
Disqualified Capital Stock on the date of such issuance and (ii) any additional
amount paid by the holder thereof to the Company upon such conversion or
exchange.
"Net Proceeds Offer" shall have the meaning provided in Section
5.16(a).
"Obligations" means all obligations of every nature whether for
principal, reimbursements, premium, interest, fees, expenses, indemnities or
otherwise, and whether primary, secondary, direct, indirect, contingent, fixed
or otherwise (including obligations of performance) under the documentation
governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Controller, or the Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05.
"Operating Coverage Ratio" means the ratio of (1) EBITDA for the
period (the "Pro Forma Period") consisting of the most recent four full fiscal
quarters for which financial information in respect thereof is available
immediately prior to the date of the transaction giving rise to the need to
calculate the Operating Coverage Ratio (the "Transaction Date") to (2) the
Consolidated Interest Expense for the fiscal quarter in which the Transaction
Date occurs and the three fiscal quarters immediately subsequent to such fiscal
quarter (the "Forward Period") reasonably anticipated by the Board of Directors
24
-16-
of the Company to become due from time to time during such period. For
purposes of this definition, if the Transaction Date occurs prior to the first
anniversary of the Transactions, "EBITDA" for the Pro Forma Period shall be
calculated after giving effect on a pro forma basis to the Transactions and the
California Disposition as if they had occurred on the first day of the Pro
Forma Period. In addition to, but without duplication of, the foregoing, for
purposes of this definition, "EBITDA" shall be calculated after giving effect
(without duplication), on a pro forma basis for the Pro Forma Period (but no
longer), to (a) any Investment, during the period commencing on the first day
of the Pro Forma Period to and including the Transaction Date (the "Reference
Period"), in any other Person that, as a result of such Investment, becomes a
Restricted Subsidiary, (b) the acquisition, during the Reference Period (by
merger, consolidation or purchase of stock or assets) of any business or
assets, which acquisition is not prohibited by this Indenture, and (c) any
sales or other dispositions of any Restricted Subsidiary or any line of
business (or geographical area thereof) of the Company or any Restricted
Subsidiary occurring during the Reference Period, in each case as if such
incurrence, Investment, repayment, acquisition or asset sale had occurred on
the first day of the Reference Period. In addition, for purposes of this
definition, "Consolidated Interest Expense" shall be calculated after giving
effect (without duplication), on a pro forma basis for the Forward Period, to
any Indebtedness Incurred or repaid on or after the first day of the Forward
Period and prior to the Transaction Date. If the Company or any Restricted
Subsidiary directly or indirectly guarantees any Indebtedness of a third
Person, the Operating Coverage Ratio shall give effect to the Incurrence of
such Indebtedness as if the Company or such Restricted Subsidiary had directly
Incurred such guaranteed Indebtedness.
"operating lease" means any lease the obligations under which do not
constitute Capitalized Lease Obligations.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 13.04 and 13.05. Unless otherwise required by the Trustee, the legal
counsel may be an employee of or counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means the Securities and any Indebtedness
of the Company which ranks pari passu in right of payment with the Securities.
25
-17-
"Paying Agent" shall have the meaning provided in Section 2.03,
except that for the purposes of Articles Three and Nine and Sections 5.15 and
5.16 hereof, the Paying Agent shall not be the Company or an Affiliate of the
Company.
"Payment Restriction" means, with respect to a subsidiary of any
Person, any encumbrance, restriction or limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or Indebtedness owed to
such Person or any other subsidiary of such Person, (b) make loans or advances
to such Person or any other subsidiary of such Person or (c) transfer any of
its properties or assets to such Person or any other subsidiary of such Person,
or (ii) such Person or any other subsidiary of such Person to receive or retain
any such (a) dividends, distributions or payments, (b) loans or advances or (c)
transfer of properties or assets.
"Permitted Holder" means (i) Yucaipa, or any entity controlled
thereby or any of the partners thereof, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Marital Trust I, Trust for
the Children of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Trust for the Children of ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, and Trust for the Children of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, (iii) an employee
benefit plan of the Company, or any of its subsidiaries or any participant
therein, (iv) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries or (v) any Permitted
Transferee of any of the foregoing Persons.
"Permitted Indebtedness" means:
a. Indebtedness of the Company and the Restricted Subsidiaries (and
the Company and each Restricted Subsidiary (to the extent it is not the primary
obligor thereof) may guarantee such Indebtedness) (i) under the Credit
Agreement (including the Letter of Credit Obligations) in an aggregate
principal amount at any time outstanding not to exceed $1,025.0 million, less
all principal repayments of Term Loans and all permanent commitment reductions
under the revolving credit facility, in each case, pursuant to and in
accordance with Section 5.16 hereof or (ii) Incurred under the Credit Agreement
pursuant to and in compliance with (x) clause (n) of this definition and (y)
the proviso of Section 5.12 hereof;
26
-18-
b. Indebtedness of a Restricted Subsidiary owed to and held by the
Company or a Restricted Subsidiary; or Indebtedness of the Company owed to and
held by a Restricted Subsidiary;
c. Indebtedness Incurred by the Company or any Restricted Subsidiary
in connection with the purchase or improvement of property (real or personal)
or equipment or other capital expenditures in the ordinary course of business
(including for the purchase of assets or stock of any retail grocery store or
business) or consisting of Capitalized Lease Obligations, provided that (i) at
the time of the Incurrence thereof, such Indebtedness, together with any other
Indebtedness Incurred during the most recently completed four fiscal quarter
period in reliance upon this clause (c) does not exceed, in the aggregate, 3%
of net sales of the Company and the Restricted Subsidiaries during the most
recently completed four fiscal quarter period on a consolidated basis
(calculated on a pro forma basis if the date of Incurrence is prior to the end
of the fourth fiscal quarter following the Issue Date) and (ii) such
Indebtedness, together with all then outstanding Indebtedness Incurred in
reliance upon this clause (c) does not exceed, in the aggregate, 3% of the
aggregate net sales of the Company and the Restricted Subsidiaries during the
most recently completed twelve fiscal quarter period on a consolidated basis
(calculated on a pro forma basis if the date of Incurrence is prior to the end
of the twelfth fiscal quarter following the Issue Date);
d. Indebtedness Incurred by the Company or any Restricted Subsidiary
in connection with expenditures in an aggregate principal amount not to exceed
$25.0 million; provided that such expenditures relate solely to the integration
of the operations of the Company, Smitty's and their respective subsidiaries as
described in the Prospectus;
e. Indebtedness of the Company Incurred under Foreign Exchange
Agreements and Interest Swap Obligations entered into with respect to
Indebtedness otherwise permitted to be Incurred under Section 5.12 hereof,
including this definition of "Permitted Indebtedness" (other than this clause
(e)), in a notional amount not exceeding the aggregate principal amount of such
Indebtedness;
f. guarantees Incurred in the ordinary course of business by the
Company or a Restricted Subsidiary of
27
-19-
Indebtedness of any other Person in aggregate not to exceed $20.0 million at
any time outstanding;
g. Refinancing Indebtedness;
h. Indebtedness of the Company or any Restricted Subsidiary for
letters of credit relating to workers' compensation claims and self-insurance
or similar requirements in the ordinary course of business;
i. Existing Indebtedness;
j. Indebtedness arising from guarantees of Indebtedness of the
Company or any Restricted Subsidiary or other agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary, other than
guarantees of Indebtedness Incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing
such acquisition; provided, however, that the maximum aggregate liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and the Restricted Subsidiary in connection
with such disposition;
k. obligations in respect of performance bonds and completion
guarantees provided by the Company or any Restricted Subsidiary in the ordinary
course of business;
l. guarantees by the Company or a Restricted Subsidiary of
Indebtedness Incurred by the Company or a Restricted Subsidiary so long as the
Incurrence of such Indebtedness by the Company or any such Restricted
Subsidiary is otherwise permitted by the terms of this Indenture;
m. Indebtedness Incurred by the Company in connection with the
termination of a lease of, or the transfer to the Company or a third party of,
the California assets leased by the Company from certain trusts and securing
such trusts' obligations to the ▇▇▇▇▇'▇ Food & Drug Centers Inc. 1994-A Pass
Through Trusts (the "Related Assets"); provided, however, that (i) if the
Related Assets are transferred to the Company, the Company shall consummate an
Asset Sale with respect to such Related Assets within 90 days after the
Incurrence of such Indebtedness and shall apply the Net Proceeds of such Asset
Sale to permanently reduce Pari Passu Indebtedness,
28
-20-
Indebtedness of any Restricted Subsidiary or Senior Indebtedness, and (ii) if
the Related Assets are transferred to any Person other than the Company or any
Subsidiary, the Company shall, within 90 days after the Incurrence of such
Indebtedness, apply any proceeds received from the owner trust in respect of
such transfer of the Related Assets to permanently reduce Pari Passu
Indebtedness, Indebtedness of any Restricted Subsidiary or Senior Indebtedness;
provided, further, however, that up to $5.0 million in aggregate amount of Net
Proceeds under clause (i) or proceeds under clause (ii) may be applied to repay
outstanding borrowings under the revolving credit facility pursuant to the
Credit Agreement without a corresponding reduction in commitments; and
n. additional Indebtedness of the Company or any Restricted
Subsidiary (together with the Indebtedness Incurred pursuant to clause (a)(ii)
above) in an aggregate amount not to exceed $140.0 million at any time
outstanding.
"Permitted Investment" by any Person means (i) any Related Business
Investment, (ii) Investments in securities not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made pursuant to
Section 5.16 hereof or any other disposition of assets not constituting an
Asset Sale by reason of the exceptions contained in the definition thereof,
(iii) cash and Cash Equivalents, (iv) Investments existing on the Issue Date,
(v) Investments specifically permitted by and made in accordance with Section
5.11(b), (vi) Investments in the Company or the wholly owned Restricted
Subsidiaries, (vii) guarantees by the Company or any Restricted Subsidiary of
Indebtedness under the Credit Agreement and (viii) additional Investments in an
aggregate amount not exceeding $15.0 million.
"Permitted Liens" shall mean (i) Liens for taxes, assessments and
governmental charges or claims not yet due or which are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if a reserve or other appropriate provision, if any,
29
-21-
as shall be required in conformity with GAAP shall have been made therefor;
(ii) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like Liens arising in the ordinary
course of business, deposits made to obtain the release of such Liens, and with
respect to amounts not yet delinquent for a period of more than 60 days or
being contested in good faith by an appropriate process of law, and for which a
reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made; (iii) Liens incurred or pledges or deposits made in the
ordinary course of business to secure obligations under workers' compensation,
unemployment insurance and other types of social security or similar
legislation; (iv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance and return of money bonds and other
obligations of a like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, zoning or other restrictions, minor defects or irregularities in
title and other similar charges or encumbrances not interfering in any material
respect with the business of the Company or any of the Restricted Subsidiaries
incurred in the ordinary course of business; (vi) Liens upon specific items of
inventory or other goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods in the ordinary course of business; (vii) Liens
securing reimbursement obligations with respect to letters of credit which
encumber documents and other property relating to such letters of credit and
the products and proceeds thereof; (viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of nondelinquent
customs duties in connection with the importation of goods; (ix) judgment and
attachment Liens not giving rise to a Default or Event of Default; (x) leases
or subleases granted to others not interfering in any material respect with the
business of the Company or any Restricted Subsidiary; (xi) Liens encumbering
customary initial deposits and margin deposits, and other Liens incurred in the
ordinary course of business that are within the general parameters customary in
the industry, in each case securing Indebtedness under Interest Swap
Obligations and Foreign Exchange Agreements and forward contracts, option
futures contracts, futures options or similar agreements or arrangements
designed to protect the Company or any Restricted Subsidiary from fluctuations
in the price of commodities; (xii) Liens encumbering deposits made in the
ordinary course of business to secure nondelinquent obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company
or the Restricted Subsidiaries for which a reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made; (xiii)
Liens arising out of consignment or similar arrangements for the sale of goods
entered into by the Company or any Restricted Subsidiary in the ordinary course
of business in
30
-22-
accordance with past practices; (xiv) any interest or title of a lessor in the
property subject to any lease, whether characterized as capitalized or
operating other than any such interest or title resulting from or arising out
of a default by the Company or any Restricted Subsidiary of its obligations
under such lease; (xv) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases of personal property that
are otherwise permitted under this Indenture and under which the Company or any
Restricted Subsidiary is lessee; (xvi) Liens in favor of the Trustee and any
substantially equivalent Lien granted to any trustee or similar institution
under any indenture governing Indebtedness permitted to be Incurred or
outstanding under this Indenture; (xvii) Liens securing Indebtedness permitted
to be Incurred pursuant to clause (m) of the definition of Permitted
Indebtedness; provided that such Liens extend only to the Related Assets.
"Permitted Payments" means
(i) the consummation of the Transactions as described in the
Prospectus;
(ii) payments by the Company to effect the mandatory redemption of
its Series I Preferred Stock; provided, however, that such payments shall not
be made on any date earlier, or in any amount greater, than the dates and
amounts provided for in the Company's Certificate of Incorporation as in effect
on the Issue Date;
(iii) any payment by the Company or any Subsidiary to Yucaipa or the
principals or any Affiliates thereof for consulting, management, investment
banking or similar services, or for reimbursement of costs and expenses (x)
pursuant to the Management Services Agreement or (y) as approved by a majority
of the Independent Directors (as defined in the Standstill Agreement);
(iv) any payment to pay for the purchase, retirement or other
acquisition for value of any Capital Stock of the Company held by any future,
present or former employee or director of the Company or any Subsidiary
pursuant to any management equity plan or stock option plan or any other
agreement, provided that the aggregate amount of Restricted Payments made under
this clause does not exceed $3.0 million in any fiscal year (provided that any
unused amounts may be carried over
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to any subsequent fiscal year subject to a maximum amount of $6.0 million in
any fiscal year);
(v) pro rata dividends paid by any Restricted Subsidiary that is not
wholly owned by the Company or another wholly owned Restricted Subsidiary;
(vi) Investments in Unrestricted Subsidiaries in an aggregate amount
not to exceed $10.0 million; and
(vii) other Restricted Payments in an aggregate amount not to exceed
$20.0 million.
"Permitted Subordinated Reorganization Securities" means securities
of the Company issued in a plan of reorganization in a case under Bankruptcy
Law relating to the Company which constitutes either (x) Capital Stock (other
than Disqualified Capital Stock with the reference to "Maturity Date" in the
definition of such term modified to relate to the final stated maturity of any
debt securities issued in such plan of reorganization to the holders of
Designated Senior Indebtedness ("Senior Reorganization Securities")) or (y)
debt securities of the Company which (i) are unsecured, (ii) have no scheduled
mandatory amortization thereon prior to the final stated maturity of the Senior
Reorganization Securities and (iii) are subordinated in right of payment to the
Senior Reorganization Securities to at least the same extent as the Securities
are subordinated to Designated Senior Indebtedness.
"Permitted Transferees" means, with respect to any Person, (i) any
Affiliate of such Person, (ii) the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any such Person, (iii) a
trust the beneficiaries of which, or a corporation or partnership the
stockholders or general or limited partners of which, include only such Person
or his or her parents, spouse or lineal descendants, in each case to whom such
Person has transferred the beneficial ownership of any securities of the
Company, (iv) any investment account whose investment managers and investment
advisors consist solely of such Person and/or Permitted Transferees of such
Person and (v) any investment fund or investment entity that is a subsidiary of
such Person or a Permitted Transferee of such Person.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated
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organization or government or any agency or political subdivision thereof.
"Plan of Liquidation" means, with respect to any Person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and
all or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"Preferred Stock" means, with respect to any Person, Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act, as interpreted by
the Company's chief financial officer or Board of Directors in consultation
with its independent certified public accountants.
"Prospectus" means the prospectus of the Company dated May 16, 1996
relating to the Securities.
"Public Equity Offering" means an underwritten public offering of
Common Stock of the Company pursuant to a registration statement filed with the
Commission in accordance with the Securities Act.
"Qualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person that is not Disqualified Capital Stock.
"Recapitalization" means the offering of the Securities, the Tender
Offer, the Repayments and the closing under the Credit Agreement.
"Recapitalization Agreement" means the Recapitalization Agreement and
Plan of Merger, dated as of January 29,
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1996, among the Company, Acquisition, Smitty's and Yucaipa, as amended through
the date hereof.
"Record Date" means the record dates specified in the Securities;
provided, however, that if any such date is a Legal Holiday, the Record Date
shall be the first day immediately preceding such specified day that is not a
Legal Holiday.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"Refinancing Indebtedness" means, with respect to any Person,
Indebtedness of such Person issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used to substantially
concurrently repay, redeem, refund, refinance, discharge or otherwise retire
for value, in whole or in part (collectively, "repay"), or constituting an
amendment, modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of such Person existing on the
Issue Date or Indebtedness (other than Permitted Indebtedness, except Permitted
Indebtedness Incurred pursuant to clauses (c), (d), (g), (i) and (m) of the
definition thereof) Incurred in accordance with this Indenture (a) in a
principal amount (or, if such Refinancing Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon the
acceleration thereof, with an original issue price) not in excess of (without
duplication) (i) the principal amount or the original issue price, as the case
may be, of the Indebtedness so refinanced (or, if such Refinancing Indebtedness
refinances Indebtedness under a revolving credit facility or other agreement
providing a commitment for subsequent borrowings, with a maximum commitment not
to exceed the maximum commitment under such revolving credit facility or other
agreement) plus (ii) unpaid accrued interest on such Indebtedness plus (iii)
premiums, penalties, fees and expenses actually incurred by such Person in
connection with the repayment or amendment thereof and (b) with respect to
Refinancing Indebtedness that repays or constitutes an amendment to
Subordinated Indebtedness, such Refinancing Indebtedness (x) shall not have any
fixed mandatory redemption
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or sinking fund requirement in an amount greater than or at a time prior to the
amounts and times specified in such repaid or amended Subordinated
Indebtedness, except to the extent that any such requirement applies on a date
after the Maturity Date and (y) shall contain subordination and default
provisions no less favorable in any material respect to the Holders than those
contained in such repaid or amended Subordinated Indebtedness.
"Registrar" shall have the meaning provided in Section 2.03.
"Related Assets" shall have the meaning provided in clause (m) of the
definition of Permitted Indebtedness.
"Related Business Investment" means (i) any Investment by a Person in
any other Person a majority of whose revenues are derived from the operation of
one or more retail grocery stores or supermarkets or any other line of business
engaged in by the Company or any of the Subsidiaries as of the Issue Date; (ii)
any Investment by such Person in any cooperative or other supplier, including,
without limitation, any joint venture which is intended to supply any product
or service useful to the business of the Company and the Restricted
Subsidiaries as it is conducted as of the Issue Date and as such business may
thereafter evolve or change; and (iii) any capital expenditure or Investment,
in each case reasonably related to the business of the Company and the
Restricted Subsidiaries as it is conducted as of the Issue Date and as such
business may thereafter evolve or change.
"Repayments" means the Company's purchase of $1.0 million of its
Series I Preferred Stock, repayment of $717.6 million of its outstanding
indebtedness and purchase of $13.7 million of employee stock options, all as
described in the Prospectus.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness or any Guarantor Senior
Indebtedness; provided, however, that in no event shall Fleet National Bank, in
its capacity as Trustee, Registrar, co-Registrar or Paying Agent, serve as
Representative.
"Restricted Payment" means (i) any Stock Payment or (ii) Investment
(other than a Permitted Investment).
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"Restricted Subsidiary" means any Subsidiary that, as of the date of
determination, is not an Unrestricted Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on, and all other Obligations with respect to, any Indebtedness of the
Company, whether outstanding on the Issue Date or thereafter Incurred, unless,
in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall include (x) the principal of, premium, if any, and interest
on all obligations of every nature of the Company from time to time owed to the
lenders under the Credit Agreement, including, without limitation, the Letter
of Credit Obligations and principal of and interest on, all fees and expenses
payable under the Credit Agreement and (y) interest accruing thereon subsequent
to the occurrence of any Event of Default specified in clause (vi) or (vii) in
Section 7.01 relating to the Company, whether or not the claim for such
interest is allowed under any applicable Bankruptcy Law. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (a) Indebtedness evidenced
by the Securities, (b) Indebtedness that is expressly subordinate or junior in
right of payment to any Indebtedness of the Company, (c) Indebtedness which,
when Incurred and without respect to any election under Section 1111(b) of
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to the Company (other than
Capitalized Lease Obligations), (d) Indebtedness which is represented by
Disqualified Capital Stock, (e) obligations for goods, materials or services
purchased in the ordinary course of business or obligations consisting of trade
payables, (f) Indebtedness of or amounts owed by the Company for compensation
to employees or for services rendered to the Company, (g) any liability for
federal, state, local or other taxes owed or owing by the Company, (h)
Indebtedness of the Company to a Subsidiary of the Company, and (i) that
portion of any Indebtedness which is Incurred by the Company in violation of
this Indenture.
"Series I Preferred Stock" means the Series I Preferred Stock of the
Company, par value $.01 per share.
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"Significant Senior Indebtedness" shall have the meaning provided in
Section 4.02(a).
"Significant Stockholder" means, with respect to any Person, any
other Person who is the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of more than 10% of any class of equity securities of
such Person that are entitled to vote on a regular basis for the election of
directors of such Person.
"Significant Subsidiary" means each Restricted Subsidiary that is
either (a) a "significant subsidiary" as defined in Rule 1-02(v) of Regulation
S-X under the Securities Act and the Exchange Act (as such regulation is in
effect on the Issue Date) or (b) material to the financial condition or results
of operations of the Company and the Restricted Subsidiaries taken as a whole.
"Smitty's" means Smitty's Supermarkets, Inc., a Delaware corporation.
"Smitty's Offers to Purchase" means the offers to purchase the
Smitty's Securities from the holders thereof.
"Smitty's Refinancing" means the repayment of Smitty's Securities,
including pursuant to the Smitty's Offers to Purchase and the repayment of all
outstanding Indebtedness under the Credit Agreement dated as of June 29, 1994
among SSV, the subsidiary guarantors and the lenders named therein and The
Chase Manhattan Bank, N.A., as administrative agent.
"Smitty's Securities" means the 13.75% Senior Discount Debentures due
2006 of Smitty's and the 12.75% Senior Subordinated Notes due 2004 of SSV.
"SSV" means Smitty's Super Valu, Inc., a Delaware corporation and a
wholly owned subsidiary of Smitty's.
"Standstill Agreement" means the Standstill Agreement dated as of
January 29, 1996 among the Company, Yucaipa and each of the limited
partnerships that owns shares in Smitty's for which Yucaipa acts as the general
partner (as such Standstill Agreement may be amended or replaced, so long as
such amendment or replacement has been approved by a majority of the
Independent Directors (as defined in the Standstill Agreement as in effect
prior to such amendment or replacement) and is not
37
-29-
disadvantageous to the Holders of the Securities in any material respect).
"Stock Payment" means, with respect to any Person, (a) the
declaration or payment by such Person, either in cash or in property, of any
dividend on (except, in the case of the Company, dividends payable solely in
Qualified Capital Stock of the Company), or the making by such Person or any of
its subsidiaries of any other distribution in respect of, such Person's
Qualified Capital Stock or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock (other than exchangeable or
convertible Indebtedness of such Person), or (b) the redemption, repurchase,
retirement or other acquisition for value by such Person or any of its
subsidiaries, directly or indirectly, of such Person's Qualified Capital Stock
(and, in the case of a Subsidiary, Qualified Capital Stock of the Company) or
any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock (other than exchangeable or convertible Indebtedness of such
Person), other than, in the case of the Company, through the issuance in
exchange therefor solely of Qualified Capital Stock of the Company; provided,
however, that in the case of a Restricted Subsidiary, the term "Stock Payment"
shall not include any such payment with respect to its Capital Stock or
warrants, rights or options to purchase or acquire shares of any class of its
Capital Stock that are owned solely by the Company or a wholly owned Restricted
Subsidiary.
"Subordinated Indebtedness" means Indebtedness of the Company which
is subordinated in right of payment to the Securities.
"subsidiary" of any Person means (i) a corporation a majority of
whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly, owned by
such Person, by one or more subsidiaries of such Person or by such Person and
one or more subsidiaries of such Person or (ii) a partnership in which such
Person or a subsidiary of such Person is, at the date of determination, a
general partner of such partnership, but only if such Person or its subsidiary
is entitled to receive more than fifty percent of the assets of such
partnership upon its dissolution, or (iii) any other Person (other than a
corporation or a partnership) in which such Person, a subsidiary of such Person
or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination, has (x) at least a majority ownership
38
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interest or (y) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.
"Subsidiary" means any subsidiary of the Company.
"Surviving Person" shall have the meaning provided in Section
6.01(a)(1).
"Tender Offer" means the Company's offer to purchase 50% of the
outstanding shares (excluding shares issuable in the Merger) of Common Stock
from the holders thereof for $36.00 in cash per share.
"Term Loans" means the term loan facility under the Credit Agreement
and any agreement governing Indebtedness Incurred to refund, replace or
refinance any borrowings outstanding under such facility or under any prior
refunding, replacement or refinancing thereof (in each case, in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date this Indenture is qualified
under the TIA, except as otherwise provided in Section 10.03.
"Transactions" means the Recapitalization, the Merger and the
Smitty's Refinancing.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary (including its
subsidiaries) so designated by a Board Resolution adopted by the Board of
Directors of the Company in accordance with Section 5.20 hereof.
Notwithstanding the foregoing, an Unrestricted Subsidiary shall be deemed to be
redesignated a Restricted Subsidiary at any time if (a) the Company or any
other Restricted Subsidiary (i) provides credit support for, or a guarantee of,
any Indebtedness of such Unrestricted
39
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Subsidiary or any of its subsidiaries (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (ii) is directly or indirectly
liable for any Indebtedness of such Unrestricted Subsidiary or any of its
subsidiaries, (b) a default with respect to any Indebtedness of such
Unrestricted Subsidiary or any of its subsidiaries (including any right which
the holders thereof may have to take enforcement action against any of them)
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity or (c) such Unrestricted
Subsidiary or any of its subsidiaries Incurs Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any Restricted
Subsidiary.
"U.S. Government Obligations" means direct non- callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which guarantee or obligation the full faith and credit of the
United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Yucaipa" means The Yucaipa Companies, a California general
partnership, or any successor thereto which is an affiliate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or his Permitted Transferees.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
40
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"obligor" on the indenture securities means the Company, any
Guarantor or any other obligor on the Securities or Guarantees.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities, the notation thereon relating to the Guarantees (if
and when delivered) and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Securities and any
notation, legend or endorsement on them. Each Security shall be dated the date
of its authentication.
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The terms and provisions contained in the Securities and the
Guarantees (if and when delivered) shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. If a Guarantee Condition shall exist pursuant to Section 5.17, each
Guarantor shall execute the Guarantee in the manner set forth in Section 11.09.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of $575,000,000 upon a written order of the Company
in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated. Such Securities shall be in the form of
one or more Global Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
outstanding Securities, (ii) shall be registered in the name of the Depository
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the Depository's instruction
and (iv) shall bear a legend substantially to the following effect: "Unless and
until this Global Security is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depository to a nominee of the
42
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Depository or by a nominee of the Depository to the Depository or by a
Depository or any such nominee to a successor Depository or a nominee of a
successor Depository." The aggregate principal amount of Securities
outstanding at any time may not exceed $575,000,000 (or such lesser amount as
is requested authenticated by the Trustee and issued by the Company on the
Issue Date), except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company may act as its own Registrar or Paying Agent except that for the
purposes of Articles Three and Nine and Sections 5.15 and 5.16, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent.
The Company initially appoints the Trustee as Registrar and Paying Agent until
such
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time as the Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that, subject to Article Four and Article Twelve, each Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or interest on, the
Securities (whether such assets have been distributed to it by the Company or
any other obligor on the Securities), and shall notify the Trustee of any
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund, subject to
Article Four and Article Twelve. The Company at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of any
payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.05. 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
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by the Trustee.
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SECTION 2.06. Transfer and Exchange.
(a) When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are
met; provided, however, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Securities at the Registrar's or
co-Registrar's request. No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.02, 2.07, 2.10, 3.06, 5.15, 5.16 or 10.05). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Security
(i) during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole
or in part pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part. A Global Security may be transferred, in
whole but not in part, in the manner provided in this Section 2.06(a), only to
a nominee of the Depository for such Global Security, or to the Depository, or
a successor Depository for such Global Security selected or approved by the
Company, or to a nominee of such successor Depository.
(b) If at any time the Depository for the Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or Securities or the Company becomes aware
that the Depository has ceased to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depository with respect to
such Global Security or Securities. If a successor Depository for such Global
Security or Securities has not been appointed within 120 days after the Company
receives such notice or becomes aware of such ineligibility, the Company
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shall execute, and the Trustee, upon receipt of an Officers' Certificate for
the authentication and delivery of Securities, shall authenticate and deliver,
Securities in definitive form, in an aggregate principal amount at maturity
equal to the principal amount at maturity of the Global Security representing
such Securities, in exchange for such Global Security. The Company shall
reimburse the Registrar, the Depository and the Trustee for expenses they incur
in documenting such exchanges and issuances of Securities in definitive form.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a written order for the authentication and delivery of individual
Securities in exchange in whole or in part for such Global Security or
Securities, will authenticate and deliver individual Securities in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities in exchange for such Global Security or
Securities.
In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section 2.06(b) shall
be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the persons in whose names such Securities are
so registered.
None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall
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issue and the Trustee shall authenticate a replacement Security if the
Trustee's requirements are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in
the judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security
is replaced. The Company may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Security pursuant to this Section 2.07,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company, the Guarantors
or any of their respective Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or a Subsidiary) holds U.S. Legal Tender or U.S. Government
obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue unless, pursuant
to the provisions of Article Four and Article Twelve, the Paying Agent is
unable to make payments on the Securities to the Holders thereof.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company, the
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Subsidiaries or any of their respective Affiliates shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that the
Trustee knows or has reason to know are so owned shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities. Notwithstanding
the foregoing, so long as the Securities are represented by a Global Security,
such Global Security may be in typewritten form.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to
Section 2.07, the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation. If the Company
or any Guarantor shall acquire any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall, unless the Trustee fixes another record date pursuant to Section
7.10, pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the persons who are Holders on a
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subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and
if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities, and that reliance
may be placed only on the other identification numbers printed on the
Securities.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee, with a copy to the Credit Agent,
of the Redemption Date and the principal amount of Securities to be redeemed
and whether it wants the Trustee to give notice of redemption to the Holders at
least 45 days (unless a shorter notice shall be satisfactory to the Trustee)
but not more than 60 days before the Redemption Date. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata by lot or by any other
method that the Trustee considers fair and appropriate and, if such Securities
are listed on any securities exchange, by a method that complies
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with the requirements of such exchange; provided, however, that any redemption
pursuant to Paragraph 5 of the Securities with the proceeds of a Public Equity
Offering shall be made on a pro rata basis unless such method is otherwise
prohibited.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or integral
multiples thereof) of the principal amount of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail to each
Holder whose Securities are to be redeemed at such Holder's registered address,
with a copy to the Trustee and the Credit Agent. In order to effect a
redemption pursuant to Paragraph 5 of the Securities with the proceeds of a
Public Equity Offering, the Company shall send the redemption notice not later
than 60 days after the consummation of such Public Equity Offering. At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) that, unless (a) the Company defaults in making the redemption
payment on the Redemption Date or (b) such redemption payment is
prohibited pursuant to Article Four or Article Twelve hereof or otherwise,
interest on
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Securities called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price
unless prohibited pursuant to Article Four or Article Twelve or otherwise
pursuant to this Indenture. Securities that are redeemed by the Company or
that are purchased by the Company pursuant to a Net Proceeds Offer as described
in Section 5.16 or pursuant to a Change of Control Offer as described in
Section 5.15 or that are otherwise acquired by the Company will be surrendered
to the Trustee for cancellation.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price of all Securities to be redeemed on that date (other
than Securities or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation). The
Paying Agent shall promptly return to the Company any U.S. Legal Tender so
deposited which is not required for that purpose upon the written request of
the
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Company, except with respect to monies owed as obligations to the Trustee
pursuant to Article Eight hereof.
If the Company complies with the preceding paragraph and payment of
the Securities called for redemption is not prohibited under Article Four or
Article Twelve or otherwise, then, unless the Company defaults in the payment
of such Redemption Price, interest on the Securities or portions thereof to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
SUBORDINATION
SECTION 4.01. Securities Subordinated to Senior Indebtedness.
Anything herein to the contrary notwithstanding, the Company, for
itself and its successors, and each Holder, by his acceptance of Securities,
agrees that the payment of the Obligations on the Securities is subordinated,
to the extent and in the manner provided in this Article Four, to the prior
payment in full in cash or Cash Equivalents of all Senior Indebtedness, whether
outstanding on the Issue Date or thereafter Incurred, including with respect to
Designated Senior Indebtedness, any interest accruing thereon subsequent to the
occurrence of any Event of Default specified in clause (vi) or (vii) of Section
7.01 relating to the Company, whether or not such interest is an allowed claim
enforceable against the Company under any Bankruptcy Law.
This Article Four shall constitute a continuing offer to all persons
who become holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior Indebtedness and
such holders are made obligees hereunder and any one or more of them may
enforce such provisions.
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The obligations of the Company to the Trustee under Section 8.07
shall not be subject to the provisions of this Article Four.
SECTION 4.02. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 4.03 shall be applicable, no direct or indirect
payment (other than payments by a trust previously established pursuant to
Article Nine hereof) or distribution of any asset of the Company of any kind or
character by or on behalf of the Company of Obligations on the Securities or on
account of the purchase or redemption or other acquisition of the Securities
whether pursuant to the terms of the Securities or upon acceleration or
otherwise shall be made if, at the time of such payment or distribution, there
exists a default in the payment of all or any portion of principal of, premium,
if any, or interest on (i) any Designated Senior Indebtedness or (ii) any other
Senior Indebtedness which, at the time of determination, is equal to or greater
than $50 million in aggregate principal amount ("Significant Senior
Indebtedness") (and the Trustee has received written notice thereof), and such
default shall not have been cured or waived by or on behalf of the holders of
such Designated Senior Indebtedness or Significant Senior Indebtedness, as the
case may be, or shall have ceased to exist, until such default shall have been
cured or waived or shall have ceased to exist or such Designated Senior
Indebtedness or Significant Senior Indebtedness, as the case may be, shall have
been discharged or paid in full in cash or Cash Equivalents, after which the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 4.03 shall be applicable, during the continuance
of any other event of default with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated, upon
the earlier to occur of (a) receipt by the Trustee of written notice from the
holders of a majority of the outstanding principal amount of the Designated
Senior Indebtedness or their Representative stating that such notice is a
notice pursuant to Section 4.02 of this Indenture, or (b) if such event of
default results from the acceleration of the Securities, the date of such
acceleration, no such payment (other than payments by a trust previously
established pursuant to Article Nine hereof) or distribution of any asset of
the Company of any kind or character shall be made by the Company upon or in
respect of the Securities (including without
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limitation on account of any principal of, premium, if any, or interest on the
Securities) or on account of the purchase or redemption or other acquisition of
Securities for a period ("Payment Blockage Period") commencing on the earlier
of the date of receipt of such notice or the date of such acceleration and
ending 179 days thereafter (provided such Designated Senior Indebtedness shall
theretofore not have been accelerated) (unless (x) such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of a
majority of the outstanding principal amount of such Designated Senior
Indebtedness or their Representative who delivered such notice or (y) such
default is cured or waived, or ceases to exist or such Designated Senior
Indebtedness is discharged or paid in full in cash or Cash Equivalents), after
which the Company shall promptly notify the Trustee of such cure or waiver and
resume making any and all required payments in respect of the Securities,
including any missed payments. Notwithstanding anything herein to the
contrary, in no event will a Payment Blockage Period extend beyond 179 days
from the date on which such Payment Blockage Period was commenced. Not more
than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 365 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by the holders of such
Designated Senior Indebtedness or their Representative whether or not within a
period of 365 consecutive days unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 4.02, then and in such event such payment
shall be paid over and delivered forthwith to the Representative or as a court
of competent jurisdiction shall direct.
SECTION 4.03. Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company.
Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, upon any dissolution,
winding-up, total or partial liquidation or reorganization of the Company
(including,
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without limitation, in bankruptcy, insolvency or receivership proceedings or
upon any assignment for the benefit of creditors or any other marshalling of
the Company's assets and liabilities and whether voluntary or involuntary):
(a) the holders of Senior Indebtedness shall first be entitled to
receive payments in full in cash or Cash Equivalents of all amounts
payable under Senior Indebtedness (including, with respect to Designated
Senior Indebtedness, any interest accruing after the commencement of any
such proceeding at the rate specified in the applicable Designated Senior
Indebtedness whether or not interest is an allowed claim enforceable
against the Company in any such proceeding) before the Holders will be
entitled to receive any payment with respect to the Securities (excluding
Permitted Subordinated Reorganization Securities), and until all
Obligations with respect to Senior Indebtedness are paid in full in cash
or Cash Equivalents, any payment or distribution to which the Holders
would be entitled (excluding Permitted Subordinated Reorganization
Securities) shall be made to the holders of Senior Indebtedness; provided,
however, that no payment on any Guarantee shall constitute payment on
behalf of the Company for purposes of this Section 4.03(a);
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled
(excluding Permitted Subordinated Reorganization Securities) except for
the provisions of this Article Four, shall be paid by the liquidating
trustee or agent or other person making such a payment or distribution,
directly to the holders of Senior Indebtedness or their Representative,
ratably according to the respective amounts of Senior Indebtedness
remaining unpaid held or represented by each, until all Senior
Indebtedness remaining unpaid shall have been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent on account of principal of, premium, if any,
or interest on the Securities (excluding
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Permitted Subordinated Reorganization Securities) before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, such payment or
distribution (subject to the provisions of Sections 4.06 and 4.07) shall
be received, segregated from other funds, and held in trust by the Trustee
or such Holder or Paying Agent for the benefit of, and shall immediately
be paid over to, the holders of Senior Indebtedness or their
Representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, until all Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness. Notwithstanding anything to the
contrary contained herein, in the absence of its gross negligence or
wilful misconduct, the Trustee shall have no duty to collect or retrieve
monies previously paid by it in good faith; provided, however, that this
sentence shall not affect the obligation of any other party receiving such
payment to hold such payment for the benefit of, and to pay over such
payment over to, the holders of Senior Indebtedness or their
Representative.
The consolidation of the Company with, or the merger of the Company
with or into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions
set forth in Article Six hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article Four if the person formed by such consolidation or the surviving entity
of such merger or the person which acquires by conveyance, transfer or lease
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance, transfer or lease,
comply with the conditions set forth in such Article Six.
The Company shall give prompt notice to the Trustee prior to any
dissolution, winding-up, total or partial liquidation or reorganization
(including, without limitation, in bankruptcy, insolvency, or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of the Company's assets and liabilities).
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SECTION 4.04. Holders To Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Indebtedness, the Holders of Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full in cash, and
for the purpose of such subrogation no payments or distributions to the holders
of Senior Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article Four, which otherwise would have been
made to the Holders, shall, as between the Company and the Holders, be deemed
to be payment by the Company to or on account of the Senior Indebtedness, it
being understood that the provisions of this Article Four are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Four shall have been
applied, pursuant to the provisions of this Article Four, to the payment of all
amounts payable under the Senior Indebtedness, then the Holders shall be
entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of the
Senior Indebtedness in full in cash or Cash Equivalents.
SECTION 4.05. Obligations of the Company Unconditional.
Nothing contained in this Article Four or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Four, of the holders of Senior Indebtedness
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in respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of assets or
securities of the Company referred to in this Article Four, the Trustee,
subject to the provisions of Sections 8.01 and 8.02, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other person making any
payment or distribution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Four. Nothing in this Section 4.05 shall apply to the claims of, or payments
to, the Trustee under or pursuant to Section 8.07.
SECTION 4.06. Trustee Entitled To Assume Payments Not
Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received written notice
thereof from the Company or from one or more holders of Senior Indebtedness or
from any Representative therefor and, prior to the receipt of any such notice,
the Trustee, subject to the provisions of Sections 8.01 and 8.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
SECTION 4.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 9.02 shall be for
the sole benefit of Holders and, to the extent allocated for the payment of
Securities, shall not be subject to the subordination provisions of this
Article Four. Otherwise, any deposit of assets or securities by or on behalf
of the Company with the Trustee or any Paying Agent (whether or not in trust)
for the payment of principal of or interest on any Securities shall be subject
to the provisions of this Article Four; provided, however, that if prior to the
second Business Day preceding the date on which by the terms of this Indenture
any such assets may become
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distributable for any purpose (including, without limitation, the payment of
principal of or premium or interest on any Security) the Trustee or such Paying
Agent shall not have received with respect to such assets the notice provided
for in Section 4.06, then the Trustee or such Paying Agent shall have full
power and authority to receive such assets and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary received by it on or after such date; provided, further, however, that
no payment on any Guarantee shall constitute payment on behalf of the Company
for purposes of this Section 4.07. The foregoing shall not apply to the Paying
Agent if the Company or any Subsidiary or Affiliate of the Company is acting as
Paying Agent. Nothing contained in this Section 4.07 shall limit the right of
the holders of Senior Indebtedness to recover payments as contemplated by this
Article Four.
SECTION 4.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 4.08, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Four or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against
the Company and any other person; provided, however, that in no event shall any
such actions limit the right of the Holders to take any action to accelerate
the maturity
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of the Securities pursuant to Article Seven hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
(c) Each Holder by accepting a Security agrees that the
Representative of any Senior Indebtedness (including, without limitation, the
Credit Agent), in its discretion, without notice or demand and without
affecting any rights of any holder of Senior Indebtedness under this Article
Four, may foreclose any mortgage or deed of trust covering interests in real
property secured thereby, by judicial or nonjudicial sale; and such Holder
hereby waives any defense to the enforcement by the Representative of any
Senior Indebtedness (including, without limitation, the Credit Agent) or by any
holder of any Senior Indebtedness against such Holder of this Article Four
after a judicial or nonjudicial sale or other disposition of its interests in
real property secured by such mortgage or deed of trust; and such Holder
expressly waives any defense or benefits that may be derived from California
Civil Code {{ 2808, 2809, 2810, 2819, 2845, 2849 or 2850, or California Code of
Civil Procedure {{580a, 580d or 726, or comparable provisions of the laws of
any other jurisdiction or any similar statute in effect in any other
jurisdiction.
SECTION 4.09. Holders Authorize Trustee To Effectuate
Subordination of Securities.___________
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination provisions contained in
this Article Four, and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company) tending towards
liquidation or reorganization of the business and assets of the Company, the
immediate filing of a claim for the unpaid balance of such Holder's Securities
in the form required in said proceedings and cause said claim to be approved.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Indebtedness or
their Representative is hereby authorized to file an appropriate claim for and
on
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behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Senior Indebtedness or their Representative to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 4.10. Right of Trustee To Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Four in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
SECTION 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Four shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 7.01.
Nothing contained in this Article Four shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Seven or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article Four of the holders, from time to time, of Senior Indebtedness.
SECTION 4.12. No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or gross negligence) if it shall in good
faith mistakenly pay over or deliver to the Holders or the Company or any other
person, money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Four or otherwise. Nothing in this Section
4.12 shall affect the obligation of any person other than the Trustee to hold
such
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payment for the benefit of, and to pay such payment over to, the holders of
Senior Indebtedness or their Representative.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on that date U.S. Legal Tender designated for and sufficient
to pay the installment; provided, however, that U.S. Legal Tender held by the
Trustee for the benefit of holders of Senior Indebtedness or Guarantor Senior
Indebtedness or the payment of which to the Holders is prohibited pursuant to
the provisions of Article Four or Article Twelve hereof or otherwise shall not
be considered to be designated for the payment of any installment of principal
or interest on the Securities within the meaning of this Section 5.01.
The Company shall pay interest on overdue principal at the rate borne
by the Securities and it shall pay interest on overdue installments of interest
at the same rate, to the extent lawful.
SECTION 5.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03 hereof. The Company
shall give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 13.02.
SECTION 5.03. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make any
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Restricted Payment if, at the time of such proposed Restricted Payment, or
after giving effect thereto, (1) a Default or an Event of Default shall have
occurred and be continuing, (2) the Company could not Incur $1.00 of additional
Indebtedness pursuant to the proviso in Section 5.12 hereof or (3) the
aggregate amount expended for all Restricted Payments, including such proposed
Restricted Payment (the amount of any Restricted Payment, if other than cash,
to be the fair market value thereof at the date of payment as determined in
good faith by the Board of Directors of the Company as evidenced by a Board
Resolution), subsequent to the Issue Date, shall exceed the sum of (i) 50% of
the aggregate Consolidated Net Income (or if such aggregate Consolidated Net
Income is a loss, minus 100% of such loss) earned during the period beginning
on the Issue Date and ending on the date of the proposed Restricted Payment
(the "Reference Date") plus (ii) 100% of the aggregate Net Proceeds received by
the Company from any Person (other than a Subsidiary) from the issuance and
sale (including upon exchange or conversion for other securities of the
Company) subsequent to the Issue Date and on or prior to the Reference Date of
Qualified Capital Stock (excluding (A) Qualified Capital Stock paid as a
dividend on any Capital Stock or as interest on any Indebtedness and (B) any
Net Proceeds from issuances and sales financed directly or indirectly using
funds borrowed from the Company or any Subsidiary, until and to the extent such
borrowing is repaid), plus (iii) 100% of the Net Proceeds from (x) the sale or
other disposition of Investments (other than Permitted Investments described in
clauses (i)-(vii) inclusive of the definition thereof) made by the Company or
any Restricted Subsidiary after the Issue Date or (y) the sale of the Capital
Stock of any Unrestricted Subsidiary by the Company or any Restricted
Subsidiary or the sale of all or substantially all of the assets of any
Unrestricted Subsidiary to the extent that a liquidating dividend or similar
distribution is paid to the Company or any Restricted Subsidiary from the
proceeds of such asset sale.
(b) The provisions set forth in the immediately preceding paragraph
will not prevent (1) the payment of any dividend within 60 days after the date
of its declaration if the dividend would have been permitted on the date of
declaration, (2) the acquisition of any shares of Capital Stock of the Company,
in exchange for or solely out of the Net Cash Proceeds of the substantially
concurrent sale (other than to a Subsidiary) of shares of Qualified Capital
Stock of the Company; provided, however, that no proceeds of such sale of
Qualified Capital Stock shall be included in clause (ii) of the preceding
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paragraph, and (3) Permitted Payments; provided, however, that, at the time of,
and after giving effect to, any Restricted Payment made under clause (3), no
Default or Event of Default shall have occurred and be continuing; provided,
further, however, that the declaration of each dividend paid in accordance with
clause (1) above and each payment under clause (iv) of the definition of
"Permitted Payments" shall each be counted for purposes of computing amounts
expended pursuant to subclause (3) in the immediately preceding paragraph, and
no amounts expended pursuant to clause (2) above or clause (i), (ii), (iii),
(v), (vi) or (vii) of the definition of "Permitted Payments" shall be so
counted.
SECTION 5.04. Corporate Existence.
Except as otherwise permitted by Article Six, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate or other existence of each of
its Significant Subsidiaries in accordance with the respective organizational
documents of each such Significant Subsidiary and the rights (charter and
statutory) and franchises of the Company and each such Significant Subsidiary;
provided, however, that the Company shall not be required to preserve, with
respect to itself, any right or franchise, and with respect to any of its
Significant Subsidiaries, any such existence, right or franchise, if the Board
of Directors of the Company or such Significant Subsidiary, as the case may be,
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any such Significant Subsidiary.
SECTION 5.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of the Restricted
Subsidiaries or properties of it or any of the Restricted Subsidiaries and (ii)
all lawful claims for labor, materials and supplies that, if unpaid, might by
law become a Lien upon the property of it or any of the Restricted
Subsidiaries; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim if either (a) the amount, applicability or validity thereof is being
contested in good faith by
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appropriate proceedings and an adequate reserve has been established therefor
to the extent required by GAAP or (b) the failure to make such payment or
effect such discharge (together with all other such failures) would not have a
material adverse effect on the financial condition or results or operations of
the Company and the Restricted Subsidiaries taken as a whole.
SECTION 5.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of the Restricted Subsidiaries
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in its judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and the Restricted Subsidiaries taken as a whole;
provided, however, that nothing in this Section 5.06 shall prevent the Company
or any Restricted Subsidiary from discontinuing the operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business, (ii) in the good
faith judgment of the Board of Directors of the Company or the Restricted
Subsidiary concerned, or of the senior officers of the Company or such
Restricted Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Restricted Subsidiary, as the case may be, or
(iii) is otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of the Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and the Restricted Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States of
America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be either (i) consistent with past
practices of the Company or the applicable Restricted Subsidiary or (ii)
customary, in the reasonable, good faith opinion of the Company, for
corporations
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similarly situated in the industry, unless the failure to provide such
insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the
Company and the Restricted Subsidiaries, taken as a whole.
SECTION 5.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days after
the end of the Company's fiscal year an Officers' Certificate stating that a
review of its activities and the activities of the Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed
and fulfilled its obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge the Company during such preceding fiscal year has kept, observed,
performed and fulfilled each and every such covenant and no event of default in
respect of any payment obligation under the Credit Agreement and no Default or
Event of Default occurred during such year or, if such signers do know of such
an event of default, Default or Event of Default, the certificate shall
describe the event of default, Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(b) So long as, and to the extent, not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year a written statement by the Company's independent certified public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default has come to their attention and if such a Default has come to their
attention, specifying the nature and period of existence thereof.
(c) The Company shall deliver to the Trustee, forthwith upon
becoming aware, and in any event within 5 days after the occurrence, of (i) any
Default or Event of Default; (ii) any event of default in respect of any
payment obligation under the Credit Agreement or any event of default under any
bond, debenture, note, or other evidence of Indebtedness of the
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Company or any of the Subsidiaries, or under any mortgage, indenture or other
instrument if such event of default related to Indebtedness at any time in an
aggregate principal amount exceeding $20.0 million, an Officers' Certificate
specifying with particularity such event.
SECTION 5.08. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in
respect of the conduct of their respective businesses and the ownership of
their respective properties, except such as are being contested in good faith
and by appropriate proceedings and except for such noncompliances as would not
in the aggregate have a material adverse effect on the financial condition or
results of operations of the Company and the Restricted Subsidiaries taken as a
whole.
SECTION 5.09. SEC Reports.
The Company will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and other reports, if any, which the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file
with the Commission, to the extent permitted, and provide the Trustee and the
Holders with such quarterly and annual reports and other reports specified in
Section 13 and 15(d) of the Exchange Act. The Company will also comply with
the other provisions of TIA Section 314(a).
SECTION 5.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or
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the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 5.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, in a single transaction or series of related transactions, (i)
sell, lease, transfer or otherwise dispose of any of its properties or assets
or issue securities (other than equity securities which do not constitute
Disqualified Capital Stock) to, (ii) purchase any property, assets or
securities from, (iii) make any Investment in, or (iv) enter into or suffer to
exist any contract or agreement with or for the benefit of, an Affiliate or
Significant Stockholder (or any Affiliate of such Significant Stockholder) of
the Company or any Subsidiary (any of the foregoing, an "Affiliate
Transaction"), unless (I) (A) such Affiliate Transaction is in the ordinary
course of business or otherwise on terms that are at least as favorable to the
Company or such Restricted Subsidiary, as the case may be, as might reasonably
have been obtainable at such time from an unaffiliated party; (B) in the case
of an Affiliate Transaction involving aggregate payments in excess of $2.0
million and less than or equal to $5.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall have delivered an Officers' Certificate
to the Trustee certifying that such Affiliate Transaction is on terms that are
at least as favorable to the Company or such Restricted Subsidiary, as the case
may be, as might reasonably have been obtainable at such time from an
unaffiliated party; (C) in the case of an Affiliate Transaction involving
aggregate payments in excess of $5.0 million and less than or equal to $15.0
million, the Company or such Restricted Subsidiary, as the case may be, shall
have delivered an Officers' Certificate to the Trustee certifying to the same
effect as specified in clause (B) above and also that such Affiliate
Transaction has received the approval of a majority of the disinterested
members of the Board of Directors of the Company or such Restricted Subsidiary,
as the case may be, or, in the absence of any such approval, that an
Independent Financial Advisor has provided the Board of Directors with written
confirmation to the effect specified in clause (II) below; and (D) in the case
of an Affiliate Transaction involving aggregate payments in excess of
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$15.0 million, the Company or such Restricted Subsidiary, as the case may be,
shall have delivered to the Trustee a written opinion of an Independent
Financial Advisor to the effect specified in clause (II) below or (II) the
Company or such Restricted Subsidiary, as the case may be, shall have delivered
to the Trustee a written opinion of an Independent Financial Advisor to the
effect that such transaction is fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of view or that the
terms of such Affiliate Transaction are at least as favorable to the Company or
such Restricted Subsidiary, as the case may be, as those that might reasonably
have been obtainable at such time from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary, as the case may be.
(b) The provisions of the foregoing paragraph shall not apply to (i)
any Permitted Payment, (ii) any Restricted Payment that is made in compliance
with Section 5.03 hereof, (iii) reasonable and customary fees and compensation
paid to, and indemnity provided on behalf of, officers, directors, consultants
or employees of the Company or any Restricted Subsidiary, as determined in good
faith by the Board of Directors of the Company or such Restricted Subsidiary or
the senior management thereof, (iv) transactions exclusively between or among
the Company and any of its wholly owned Restricted Subsidiaries or exclusively
between or among such wholly owned Restricted Subsidiaries; provided such
transactions are not otherwise prohibited by this Indenture, (v) the Standstill
Agreement and any other agreement in effect on the Issue Date as in effect on
such date (or any transaction contemplated thereby) or as amended thereafter
(including transactions contemplated pursuant to such amendment) so long as any
such amendment is not disadvantageous to the Holders of the Securities in any
material respect, (vi) the existence of, or the performance by the Company or
any of the Restricted Subsidiaries of its obligations under the terms of, any
stockholders agreement (including any registration rights agreement or purchase
agreement related thereto) to which it is a party as of the Issue Date and any
similar agreements which it may enter into thereafter; provided, however, that
the existence of, or the performance by the Company or any Restricted
Subsidiary of obligations under any future amendment to, any such existing
agreement or under any similar agreement entered into after the Issue Date
shall only be permitted by this clause (vi) to the extent that the terms of any
such amendment or new agreement are not otherwise disadvantageous to the
Holders of the Securities in any material respect, (vii) transactions permitted
by, and complying
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with, Article Six hereof and (viii) transactions with suppliers or other
purchases or sales of goods or services, in each case in the ordinary course of
business (including, without limitation, pursuant to joint venture agreements)
and otherwise in compliance with the terms of this Indenture which are fair to
the Company, in the reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at least as favorable
as might reasonably have been obtained at such time from an unaffiliated party.
SECTION 5.12. Limitation on Incurrences of
Additional Indebtedness.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur any Indebtedness other than Permitted
Indebtedness; provided, however, that if no Default with respect to payment of
principal of, or interest on, the Securities or Event of Default shall have
occurred and be continuing at the time or as a consequence of the Incurrence of
any such Indebtedness, the Company or any Restricted Subsidiary may Incur
Indebtedness if immediately after giving effect to the Incurrence of such
Indebtedness the Operating Coverage Ratio would be greater than 2.0 to 1.0.
SECTION 5.13. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or suffer to exist, or allow to become
effective any consensual Payment Restriction with respect to any of the
Restricted Subsidiaries, except for (a) any such restrictions contained in (i)
the Credit Agreement and related documents as any such Payment Restriction may
apply to any present or future Subsidiary, (ii) this Indenture, (iii) any
agreement in effect at or entered into on the Issue Date, as each of the
agreements referred to in the foregoing clauses (i), (ii) or (iii) is in effect
on the Issue Date or as thereafter amended, supplemented or amended and
restated in a manner, as it relates to such restrictions, not materially
adverse to the Holders and (iv) Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary (provided that (x) such
Indebtedness is not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary, (y) such restriction is not applicable
to any Person, or the properties or assets of any Person, other than the Person
so acquired and (z) such Indebtedness is otherwise permitted to be Incurred
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pursuant to Section 5.12 hereof); (b) limitations contained in agreements
governing secured Indebtedness otherwise permitted to be Incurred pursuant to
Sections 5.12 and 5.14 hereof on the right of the debtor to dispose of the
assets securing such Indebtedness; (c) customary non-assignment provisions
restricting subletting or assignment of any lease or other agreement entered
into by a Restricted Subsidiary; (d) customary net worth or similar provisions
contained in leases and other agreements entered into by a Restricted
Subsidiary in the ordinary course of business; (e) customary restrictions with
respect to a Restricted Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary; (f) customary provisions
in joint venture agreements and other similar agreements; (g) restrictions
contained in Indebtedness Incurred to refinance, refund, extend or renew
Indebtedness referred to in clauses (a) and (b) above; provided that the
restrictions contained therein are not materially more restrictive taken as a
whole than those provided for in such Indebtedness being refinanced, refunded,
extended or renewed; and (h) Payment Restrictions contained in any other
Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to
Section 5.12 hereof; provided that any such Payment Restrictions are ordinary
and customary with respect to the type of Indebtedness being Incurred (under
the relevant circumstances).
SECTION 5.14. Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than Permitted Liens) that secures any Indebtedness of the Company which
is expressly by its terms subordinated in right of payment to any other
Indebtedness of the Company on any asset or property of the Company or any
Restricted Subsidiary, unless the Securities are secured by a Lien on such
asset or property that is (x) pari passu with such other Indebtedness if such
other Indebtedness is pari passu with the Securities or (y) if such other
Indebtedness is subordinated to the Securities, senior in priority to the Lien
securing such other Indebtedness, in each case, until such time as such
obligations are no longer secured by a Lien.
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SECTION 5.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require the repurchase of such Holder's Securities pursuant
to the offer described below (the "Change of Control Offer"), at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest to the date of repurchase (the "Change of Control Offer Price").
(b) No later than 30 days following the date upon which the Change
of Control occurred, the Company must send, by first class mail, a notice to
each Holder, with a copy to the Trustee, which notice shall govern the terms of
the Change of Control Offer. Notice of an event giving rise to a Change of
Control shall be given on the same date and in the same manner to all Holders.
Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 5.15 and that all Securities tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 40 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue interest
if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment therefor
or (ii) such payment is prohibited pursuant to Article Four, any Security
accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day prior to the
Change of Control Payment Date;
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(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the unpurchased
portions of the Securities surrendered; provided that each Security
purchased and each Security issued shall be in an original principal
amount of $1,000 or integral multiples thereof;
(8) that each Change of Control Offer is required to remain open for
at least 20 Business Days or such longer period as may be required by law
and until 5:00 p.m. New York City time on the applicable Change of Control
Payment Date; and
(9) the circumstances and relevant facts regarding such Change of
Control.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price (and the Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered
provided that each such new Security shall be in the principal amount of $1,000
or integral multiples thereof) unless such payment is prohibited pursuant to
Article Four or otherwise. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date. For purposes of this Section 5.15, the Trustee shall act
as the Paying Agent.
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(d) Notwithstanding the foregoing, prior to the mailing of the
notice of a Change of Control Offer referred to above, within 30 days following
a Change of Control, the Company shall either (i) repay in full all
Indebtedness, and terminate all commitments, under the Credit Agreement (or
offer to repay in full all such Indebtedness and terminate all such commitments
and repay all such Indebtedness owed to each lender which has accepted such
offer and terminate all such commitments of each such lender), or (ii) obtain
the requisite consents under the Credit Agreement, to permit the repurchase of
the Securities as provided above. The Company shall first comply with the
covenant in the immediately preceding sentence before it shall be required to
repurchase Securities pursuant to the provisions described above. The
Company's failure to comply with the covenants described in this paragraph
shall constitute an Event of Default hereunder.
(e) Notwithstanding the foregoing, the Company shall not be required
to make a Change of Control Offer, as provided above, if, in connection with
any Change of Control, it has made an offer to purchase (an "Alternate Offer")
any and all Securities validly tendered at a cash price equal to or higher than
the Change of Control Offer Price and has purchased all Securities properly
tendered in accordance with the terms of such Alternate Offer.
(f) The Company must comply with Rule 14e-1 under the Exchange Act
and other provisions of state and federal securities laws to the extent
applicable in connection with a Change of Control Offer or an Alternate Offer.
SECTION 5.16. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, consummate an Asset Sale unless (a) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the fair market value of the assets sold
or otherwise disposed of (as determined in good faith by the Company) and (b)
upon consummation of such Asset Sale, the Company will within 365 days of the
receipt of the proceeds therefrom: (i) apply or cause such Restricted
Subsidiary to apply the Net Cash Proceeds of such Asset Sale to (A) a Related
Business Investment, (B) an investment in properties and assets that replace
the properties and assets that are the subject of such Asset Sale or (C) an
investment in properties and assets that will be used in the business of the
Company and the Restricted
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Subsidiaries existing on the Issue Date or in businesses reasonably related
thereto; (ii) in the case of a sale of a store or stores, deem such Net Cash
Proceeds to have been applied to the extent of any capital expenditures made to
acquire or construct a replacement store in the general vicinity of the store
sold within 365 days preceding the date of such Asset Sale; (iii) apply such
Net Cash Proceeds (or cause such Net Cash Proceeds to be applied) to the
permanent repayment of Pari Passu Indebtedness, any Indebtedness of any
Restricted Subsidiary or any Senior Indebtedness; provided, however, that the
repayment of any revolving loan (under the Credit Agreement or otherwise) shall
result in a permanent reduction in the commitment thereunder; (iv) use such Net
Cash Proceeds to secure Letter of Credit Obligations to the extent the related
letters of credit have not been drawn upon or returned undrawn; or (v) after
such time as the accumulated Net Cash Proceeds not applied pursuant to the
foregoing clauses (i) through (iv) equals or exceeds $15.0 million, apply such
Net Cash Proceeds (or cause such Net Cash Proceeds to be applied) to the
purchase of Securities tendered to the Company for purchase at a price equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase pursuant to an offer to purchase made by the Company as
set forth below (a "Net Proceeds Offer"); provided, however, that the Company
shall have the right to exclude from the foregoing provisions Asset Sales
subsequent to the Issue Date, the proceeds of which are derived from the sale
and substantially concurrent lease-back of a supermarket and/or related assets
or equipment which are acquired or constructed by the Company or a Restricted
Subsidiary subsequent to the date that is six months prior to the Issue Date,
provided that such sale and substantially concurrent lease-back occurs within
365 days following such acquisition or the completion of such construction, as
the case may be. Pending the utilization of any Net Cash Proceeds in the
manner (and within the time period) described above, the Company may use any
such Net Cash Proceeds to repay revolving loans (under the Credit Agreement or
otherwise) without a permanent reduction of the commitment thereunder.
(b) Each Net Proceeds Offer will be mailed to the record Holders as
shown on the register of Holders of such Securities not less than 325 nor more
than 365 days after the relevant Asset Sale, with a copy to the Trustee. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Net Proceeds Offer and shall state
the following terms:
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(1) that the Net Proceeds Offer is being made pursuant to Section
5.16 hereof and that all Securities tendered will be accepted for payment,
provided, however, that if the aggregate principal amount of Securities
tendered in a Net Proceeds Offer plus accrued interest at the expiration
of such offer exceeds the aggregate amount of the Net Proceeds Offer, the
Company shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that
only Securities in denominations of $1,000 or multiples thereof shall be
purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 40 days from the date such notice is mailed, other than as may be
required by law) (the "Proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue interest
if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment therefor
or (ii) such payment is prohibited pursuant to Article Four hereof or
otherwise, any Security accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a
Net Proceeds Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities were purchased only in part will
be issued new Securities equal in
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principal amount to the unpurchased portion of the Securities surrendered;
provided, however, that each Security purchased and each new Security
issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(8) that the Net Proceeds Offer shall remain open for a period of 20
Business Days or such longer period as may be required by law.
(c) On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities to be purchased and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in
an amount equal to the purchase price (and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered
provided that each such new Security shall be in the principal amount of $1,000
or integral multiples thereof) unless such payment is prohibited pursuant to
Article Four hereof or otherwise. The Company will publicly announce the
results of the Net Proceeds Offer on or as soon as practicable after the
Proceeds Purchase Date. For purposes of this Section 5.16, the Trustee shall
act as the Paying Agent.
(d) Any amounts remaining after the purchase of Securities pursuant
to a Net Proceeds Offer shall be returned by the Trustee to the Company.
(e) The Company must comply with Rule 14e-1 under the Exchange Act
and other provisions of State and federal securities laws to the extent
applicable in connection with a Net Proceeds Offer.
SECTION 5.17. Limitation on Subsidiary
Assets and Indebtedness.
(a) If at any time subsequent to the Issue Date (i)(a) the Company
transfers any of its property, plant or equipment to one or more of the
Restricted Subsidiaries (other
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than Guarantors) and (b) as a result of such transfer or transfers, the book
value of all such transferred property, plant and equipment of the Company and
the Guarantors, as reflected on a balance sheet prepared in accordance with
GAAP in any filing made with the Commission, is greater than 35% of the then
book value of the total property, plant and equipment of the Company and the
Restricted Subsidiaries, on a consolidated basis; or (ii) any Restricted
Subsidiary (other than a Guarantor) incurs Indebtedness (other than Permitted
Indebtedness pursuant to clause (a) (to the extent such Indebtedness represents
a guarantee of obligations under the Credit Agreement or a revolving loan
thereunder), (b), (c), (d), (g), (h), (i), (j), (k) or (l) of the definition
thereof) that, together with any other Indebtedness (including Permitted
Indebtedness) Incurred subsequent to the Issue Date by all Restricted
Subsidiaries (other than those that are then Guarantors) then outstanding,
would represent more than 35% of the consolidated total long-term Indebtedness
of the Company and the Restricted Subsidiaries as reflected on a balance sheet
prepared in accordance with GAAP in any filing made with the Commission (each
of the foregoing clauses (i) and (ii) being referred to herein as a "Guarantee
Condition"), then the Company shall, promptly following any such filing with
the Commission, cause one or more of the Restricted Subsidiaries to
unconditionally guarantee, jointly and severally, the Company's obligations
under the Securities on a senior subordinated unsecured basis (each such
guarantee, a "Guarantee"), pursuant to a supplemental indenture satisfactory in
form to the Trustee, so that following the issuance of such Guarantee, neither
of the Guarantee Conditions shall exist. The Indebtedness represented by each
Guarantee (including the payment of Obligations on the Securities) will be
subordinated on the same basis to senior indebtedness of the Guarantors as the
Securities are subordinated to Senior Indebtedness in accordance with the
provisions of Article Twelve of this Indenture. So long as no Default or Event
of Default shall have occurred and be continuing, one or more Guarantors may be
released within 10 Business Days following any filing with the Commission from
their Guarantees pursuant to a supplemental indenture or such other instrument
satisfactory in form to the Trustee if after giving effect to such release
neither of the Guarantee Conditions shall exist. Notwithstanding the
foregoing, neither of the Guarantee Conditions shall be deemed to exist during
any period when the Company's Operating Coverage Ratio is greater than 3.0 to
1.0.
(b) Upon the sale or disposition (whether by merger, stock sale,
asset sale or otherwise) to any Person which is not
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a Restricted Subsidiary of all of the Company's or any Subsidiary's Capital
Stock in, or all or substantially all of the assets of, any Guarantor, which
sale or disposition is otherwise in compliance with this Indenture, such
Guarantor shall be deemed released from all its obligations under its Guarantee
without any further action required on the part of the Trustee or any Holder.
(c) The obligations of each Guarantor under its Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee, or
pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under such Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the relative net assets of each Guarantor.
SECTION 5.18. Limitation on Preferred Stock
of Restricted Subsidiaries.__
The Company shall not permit any of the Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a wholly owned
Restricted Subsidiary) or permit any Person (other than the Company or a wholly
owned Restricted Subsidiary) to own any Preferred Stock of any Restricted
Subsidiary.
SECTION 5.19. Limitation on Other Senior Subordinated
Indebtedness.
The Company shall not, directly or indirectly, incur any Indebtedness
that by its terms (or by the terms of the agreement governing such
Indebtedness) is subordinate in right of payment to any other Indebtedness of
the Company unless such Indebtedness is also by its terms (or the terms of the
agreement governing such Indebtedness) made expressly either (a) pari passu in
right of payment with the Securities or (b) subordinate in right of payment to
the Securities in the same manner and at least to the same extent as the
Securities are subordinate to Senior Indebtedness.
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SECTION 5.20. Limitation on Restricted and
Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may, if no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, designate any Restricted Subsidiary to be an Unrestricted Subsidiary
if such designation is at that time permitted under Section 5.03 hereof. The
Board of Directors of the Company may, if no Default or Event of Default shall
have occurred and be continuing or would result therefrom, designate an
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
(i) any such redesignation shall be deemed to be an Incurrence as of the date
of such redesignation by the Company and the Restricted Subsidiaries of the
Indebtedness (if any) of such redesignated Subsidiary for purposes of Section
5.12 hereof; and (ii) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness which would be Permitted
Indebtedness), no such designation shall be permitted if immediately after
giving effect to such redesignation and the Incurrence of any such
Indebtedness, the Company could not incur $1.00 of additional Indebtedness
pursuant to the proviso of Section 5.12 hereof. Any such designation by the
Board of Directors of the Company shall be evidenced to the Trustee by the
filing with the Trustee of a certified copy of the Board Resolution of the
Company's Board of Directors giving effect to such designation or redesignation
and an Officers' Certificate certifying that such designation or redesignation
complied with the foregoing conditions and setting forth in reasonable detail
the underlying calculations.
(b) Subsidiaries that are not designated by the Board of Directors
as Restricted or Unrestricted Subsidiaries will be deemed to be Restricted
Subsidiaries. The designation of a Restricted Subsidiary as an Unrestricted
Subsidiary shall be deemed to include a designation of all of the subsidiaries
of such Unrestricted Subsidiary as Unrestricted Subsidiaries.
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ARTICLE SIX
SUCCESSOR CORPORATION
SECTION 6.01. Limitations on Mergers and Certain Other
Transactions.
(a) The Company, in a single transaction or through a series of
related transactions, shall not (i) consolidate with or merge with or into any
other Person, or transfer (by lease, assignment, sale or otherwise) all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to another Person or group of affiliated Persons or (ii) adopt a
Plan of Liquidation, unless, in either case:
(1) either the Company shall be the continuing Person, or the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or to which all or substantially all of the properties
and assets of the Company as an entirety or substantially as an entirety
are transferred (or, in the case of a Plan of Liquidation, any Person to
which assets are transferred) (the Company or such other Person being
hereinafter referred to as the "Surviving Person") shall be a corporation
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia, and shall expressly assume, by
supplemental indenture, all the obligations of the Company hereunder and
the Securities issued hereunder;
(2) immediately after and giving effect to such transaction and the
assumption contemplated by clause (1) above and the Incurrence or
anticipated Incurrence of any Indebtedness to be Incurred in connection
therewith, the Surviving Person shall have a Consolidated Net Worth equal
to or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction; and
(3) immediately before and immediately after giving effect to such
transaction and the assumption of the obligations as set forth in clause
(1) above and the Incurrence or anticipated Incurrence of any Indebtedness
to be Incurred in connection therewith, no Default or Event of Default
shall have occurred and be continuing.
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(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties
and assets of one or more Subsidiaries, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 6.02. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or any adoption of a Plan of
Liquidation by the Company in accordance with Section 6.01 hereof, the
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if the Surviving Person had been named as the Company herein; provided,
however, that solely for purposes of computing amounts described in subclause
(3) of Section 5.03(a), the Surviving Person shall be deemed to have succeeded
to and be substituted for the Company only with respect to periods subsequent
to the effective time of such merger, consolidation or transfer of assets.
When a successor assumes all of the obligations of its predecessor under this
Indenture and the Securities, the predecessor shall be released from those
obligations; provided, however, that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal, premium, if
any, and interest on the Securities.
ARTICLE SEVEN
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default.
Each of the following events constitutes an "Event of Default":
(i) failure to make any interest payment on the Securities when due
and the continuance of such default for a period of 30 days (whether or
not prohibited by Article Four);
(ii) failure to pay principal of, or premium, if any, on the
Securities when due, whether at maturity, upon
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acceleration, redemption, required repurchase or otherwise (whether or not
prohibited by Article Four);
(iii) failure by the Company to comply with any of its other
agreements contained in the Securities or this Indenture, if such failure
continues unremedied for 30 days after written notice given by the Trustee
or the Holders of at least 25% in principal amount of the Securities then
outstanding (except in the case of a failure to comply with Section 5.03,
Section 5.15, Section 5.16 or Section 6.01, which shall constitute Events
of Default with notice but without passage of time);
(iv) there shall be a default under any Indebtedness of the Company
or any Restricted Subsidiary, whether such Indebtedness now exists or
shall hereinafter be created, if both (A) such default either (1) results
from the failure to pay any such Indebtedness at its stated final maturity
or (2) relates to an obligation other than the obligation to pay such
Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior
to its stated final maturity and (B) the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at stated final
maturity or the maturity of which has been so accelerated, aggregates $20
million or more at any one time outstanding;
(v) any final judgment, order or decree of any court, regulatory
agency, administrative agency, or other body of competent jurisdiction for
payment of money in excess of $20 million shall be entered against the
Company or any Significant Subsidiary or any of their respective
properties and shall not be discharged and there shall have been a period
of 60 days after the date on which any period for appeal has expired;
(vi) either the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law: (a) commences a voluntary case
or proceeding; (b) consents to the entry of an order for relief against it
in an involuntary case or proceeding; (c) consents to the appointment of a
Custodian of it or for all or substantially all of its property; or (d)
makes a general assignment for the benefit of its creditors;
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(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company or
any Significant Subsidiary in an involuntary case or proceeding; (b)
appoints a Custodian of the Company or any Significant Subsidiary, or for
all or any substantial part of their respective properties; or (c) orders
the liquidation of the Company or any Significant Subsidiary, and in each
case the order or decree remains unstayed and in effect for 60 days; or
(viii) the lenders under the Credit Agreement shall commence judicial
proceedings to foreclose upon any material portion of the assets of the
Company and the Subsidiaries.
SECTION 7.02. Acceleration.
(a) If an Event of Default (other than an Event of Default under
clause (vi) or (vii) above with respect to the Company or a Significant
Subsidiary) occurs and is continuing hereunder, the Trustee hereunder or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare due and payable all unpaid principal and interest accrued and
unpaid on the then outstanding Securities issued hereunder by notice in writing
to the Company, the Credit Agent and the Trustee specifying the respective
Event of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same (i) shall become immediately due and payable or (ii) if
there is any Indebtedness outstanding under the Credit Agreement, shall become
due and payable upon the first to occur of an acceleration under the Credit
Agreement, or five business days after receipt by the Company and the Credit
Agent of such Acceleration Notice. If an Event of Default under clause (vi) or
(vii) above with respect to the Company or a Significant Subsidiary shall occur
hereunder, all unpaid principal of and accrued interest on all then outstanding
Securities issued hereunder shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any of the Holders.
Upon payment of such principal amount, interest and premium, if any, all of the
Company's obligations under the Securities and this Indenture, other than
obligations under Section 8.07, shall terminate. After a declaration of
acceleration, the Holders of a majority in principal amount of the Securities
then outstanding, by notice to the Trustee, may rescind an acceleration and its
consequences if (i) all existing Events of Default, other than the non-payment
of the principal of the Securities which has become due solely
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by such declaration of acceleration, have been cured or waived, (ii) to the
extent the payment of such interest is lawful, interest on overdue installments
of interest and overdue principal which has become due otherwise than by such
declaration of acceleration has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) the Company has paid or deposited with the Trustee a sum sufficient to pay
all sums paid or advanced by the Trustee under this Indendure and the
compensation, expenses, disbursements and advances of the Trustee and its
agents and counsel.
(b) In the event of a declaration of acceleration because an Event
of Default set forth in clause (iv) above has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if
either (x) the holders of the Indebtedness which is the subject of such Event
of Default have waived such failure to pay at maturity or have rescinded the
acceleration in respect of such Indebtedness within 90 days of such maturity or
declaration of acceleration, as the case may be, and no other Event of Default
has occurred during such 90-day period which has not been cured or waived, or
(y) such Indebtedness shall have been discharged or the maturity thereof shall
have been extended such that it is not then due and payable, or the underlying
default has been cured (and any acceleration based thereon of such other
Indebtedness has been rescinded), within 90 days of such maturity or
declaration of acceleration, as the case may be.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
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SECTION 7.04. Waiver of Past Defaults.
Subject to Sections 7.07 and 10.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (i) and (ii) of Section 7.01 (other than any such Default arising
solely by reason of acceleration of the Securities). When a Default or Event
of Default is waived, it is cured and ceases.
SECTION 7.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 7.03. Subject to Section 8.01, however, the Trustee
may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Holder, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
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(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 7.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in clause (i) or (ii) of Section 7.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any
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other obligor upon the Securities, any of their respective creditors or any of
their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each 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 agent and counsel, and any other amounts due the Trustee under Section
8.07. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
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 7.10. Priorities.
If the Trustee collects any money pursuant to this Article Seven, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: subject to Article Four and Article Twelve, to Holders for
interest accrued on the Securities, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for interest;
Third: subject to Article Four and Article Twelve, to Holders for
principal amounts due and unpaid on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal; and
Fourth: subject to Article Four and Article Twelve, to the Company
or, if applicable, the Guarantors, as their respective interests may
appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 7.10.
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SECTION 7.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Seven or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 7.13 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 7.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
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ARTICLE EIGHT
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 8.01. Duties of Trustee.
(a) If a Default or an Event of Default of which a Trust Officer of
the Trustee is aware has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default of which the Trust Officer of the Trustee is aware:
(1) The Trustee need undertake to perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee shall have no liability except for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 8.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it
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is proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 8.01.
(f) The Trustee shall not be liable for interest on any assets
received by it. Assets held in trust by the Trustee need not be segregated
from other assets except to the extent required by law.
SECTION 8.02. Rights of Trustee.
Subject to Section 8.01:
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person, including, without
limitation, any Person purporting to be a holder of Senior Indebtedness or
Guarantor Senior Indebtedness or a Representative. The Trustee need not
investigate any fact or matter stated in the document or the status of any such
Person delivering such document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require in addition to written direction from the Company
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Sections 13.04 and 13.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 8.10 and 8.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 8.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to a Trust Officer of the Trustee, the Trustee shall mail to each
Holder of Securities notice
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of the Default or Event of Default within 90 days after such Default or Event
of Default occurs or if such Default or Event of Default is known to a Trust
Officer of the Trustee during such 90-day period, promptly after such Default
or Event of Default becomes known to a Trust Officer of the Trustee; provided,
however, that, except in the case of a Default or Event of Default in the
payment of the principal of or interest on any Security, including the failure
to make payment on a Change of Control Payment Date pursuant to a Change of
Control Offer or payment when due pursuant to a Net Proceeds Offer, the Trustee
may withhold such notice if it in good faith determines that withholding such
notice is in the interest of the Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the first May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA { 313(a) occurred within the previous twelve
months, but not otherwise, mail to each Holder a brief report dated as of such
May 15 that complies with TIA { 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each stock exchange, if
any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed
on any stock exchange.
SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it except for such actions to the
extent caused by any negligence or bad faith on its part, arising out of or in
connection with the administration of this trust and its rights or duties
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hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided, however, that the Company will not be required to pay
such fees and expenses if it assumes the Trustee's defense and there is no
conflict of interest between the Company and the Trustee in connection with
such defense as reasonably determined by the Trustee. The Company need not pay
for any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section 8.07, the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.01(vi) or (vii) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee and appoint a successor trustee with the Company's consent, by so
notifying the Company and the Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 8.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
8.08, the Company's obligations under Section 8.07 shall continue for the
benefit of the retiring Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
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SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA {{ 310(a)(1) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
{ 310(b); provided, however, that there shall be excluded from the operation of
TIA { 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 8.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Securities and
this Indenture, and the obligations of any Guarantor shall terminate, except
those obligations referred to in the penultimate paragraph of this Section
9.01, if all Securities previously authenticated and delivered (other than
lost, stolen or destroyed Securities which have been replaced or paid or
Securities for whose payment money has theretofore been deposited with the
Trustee or the Paying Agent in trust and thereafter repaid to the Company, as
provided in Section 9.04) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or if:
(1) all Securities not theretofore delivered to the Trustee for
cancellation have become due and payable by reason of the making of a
notice of redemption pursuant to Article Three or otherwise;
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(2) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the Holders for that purpose,
money in such amount as is sufficient without consideration of
reinvestment of such interest, to pay and discharge the entire
indebtedness on the Securities not theretofore delivered to the Trustee
for cancellation for principal of, premium, if any, and accrued interest
to the date of maturity or redemption; provided, however, that the Trustee
shall have been irrevocably instructed to apply such money to the payment
of said principal, premium, if any, and interest with respect to the
Securities; provided, further, that from and after the time of deposit,
the money deposited shall not be subject to the rights of holders of
Senior Indebtedness pursuant to the provisions of Article Four and Article
Twelve;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a
party or by which it is bound;
(4) the Company shall have paid all other sums payable by it
hereunder; and
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's and any
Guarantor's obligation under the Securities and this Indenture have been
complied with. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under the Credit
Agreement (if then in effect) or any other agreement or instrument then
known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 5.01, 5.02 and 8.07 and any Guarantors's
obligations in respect thereof shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.08. After the
Securities are no longer outstanding, the Company's obligations
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in Sections 8.07, 9.04 and 9.05 and any Guarantor's obligations in respect
thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's and any Guarantor's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option by Board Resolution of the Board
of Directors of the Company, at any time, with respect to the Securities, elect
to have either paragraph (b) or paragraph (c) below be applied to the
outstanding Securities upon compliance with the conditions set forth in
paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Guarantor shall be deemed
to have been released and discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose, legal defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Securities and the Guarantees and
any amounts deposited under paragraph (d) below shall cease to be subject to
any obligations to, or the rights of, any holder of Senior Indebtedness or
Guarantor Senior Indebtedness under Article Four or Article Twelve or
otherwise, except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of outstanding
Securities to receive solely from the funds held by the Trustee in the trust
fund described in paragraph (d) below and as more fully set forth in such
paragraph, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.06, 2.07 and 5.02,
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and, with respect to the Trustee, under Section 8.07 and any Guarantor's
obligations in respect thereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (iv) this Section 9.02 and Section 9.05. Subject to compliance
with this Section 9.02, the Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under paragraph
(c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Four and Article
Six and in Sections 5.03, 5.05 through 5.09 and 5.11 through 5.20 with respect
to the outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and the Securities
shall thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder and
Holders of the Securities and the Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article Four, Article Twelve or otherwise. For this purpose, covenant
defeasance means that, with respect to the outstanding Securities, the Company
and any Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant
listed above, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 7.01(iii), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company must have irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 8.10 who shall
agree to comply with the
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provisions of this Section 9.02 applicable to it) in trust, for the benefit
of the Holders, cash in U.S. dollars, U.S. Government Obligations, 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 Securities to
redemption or maturity provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities on
the Maturity Date or such Redemption Date, as the case may be;
(ii) the Company shall have delivered to the Trustee one or more
Opinions of independent Counsel to the effect that (A) the Holders will
not recognize income, gain or loss for federal income tax purposes as a
result of such legal defeasance or covenant defeasance, as the case may
be, 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 or covenant defeasance, as the case may be, had not
occurred (which opinion, in the case of legal defeasance, shall be based
upon a change in the applicable federal income tax law since the Issue
Date or a ruling received from or published by the Internal Revenue
Service), (B) after the 91st day following the deposit the trust funds
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally and will not be subject to any rights of holders of Senior
Indebtedness and (C) the deposit will not cause the Trustee or the trust
so created to be subject to the Investment Company Act of 1940;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as clauses (vi) and
(vii) of Section 7.01 are concerned, at any time in the period ending on
the 91st day after the date of deposit;
(iv) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to the Securities;
(v) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or
any other material
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agreement or instrument to which the Company is a party or by which it
is bound (and in that connection, the Trustee shall have received a
certificate from the Credit Agent to that effect with respect to the
Credit Agreement if then in effect);
(vi) 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 over other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the legal defeasance or covenant
defeasance, have been complied with.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Affiliate of the Company), to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any,
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities. The Company's obligations to pay and indemnify the Trustee as set
forth in this paragraph shall survive the termination of this Indenture and the
Securities.
Anything in this Section 9.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company
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any money or U.S. Government Obligations held by it as provided in paragraph
(d) above which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
SECTION 9.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 9.01 and 9.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
SECTION 9.04. Repayment to the Company or Subsidiary
Guarantors.
Subject to Sections 8.07, 9.01 and 9.02, the Trustee shall promptly
pay to the Company, or if deposited with the Trustee by any Guarantor, to each
Guarantor, upon receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Section 9.02, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company or any Guarantor, as the
case may be, upon receipt by the Trustee or the Paying Agent, as the case may
be, of an Officers' Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed for two years
after payment to the Holders is required; provided, however, that the Trustee
and the Paying Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company or the Guarantor, as
the case may be, Holders entitled to money must look solely to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent
with respect to such money shall thereupon cease.
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SECTION 9.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then and only then the Company's and each Guarantor's, if any, obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture; provided, however, that if the Company or
the Guarantors, as the case may be, have made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Company or the Guarantors, as the case may be, shall be,
subrogated to the rights of the holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Guarantors (if any), when authorized by a Board
Resolution, and the Trustee, together, may amend or supplement this Indenture,
the Securities or the Guarantees without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to comply with Section 5.17 or Article Six;
(3) to make any other change that does not adversely affect the
rights of any Holder in any material respect; or
(4) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
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provided, however, that the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such amendment or supplement complies with the
provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 7.07, the Company and the Guarantors (if any),
when authorized by a Board Resolution, the Trustee and the Holders of not less
than a majority in aggregate principal amount of the Securities then
outstanding, may amend or supplement (or waive compliance with any provision
of) this Indenture, the Securities or any Guarantee (if any) without any notice
to any other Holder, except that (i) without the consent of each Holder of the
Securities affected, no such amendment, supplement or waiver may:
(1) change the principal amount of the Securities the Holders of which
must consent to an amendment, supplement or waiver of any provision of
this Indenture or the Securities or the Guarantees (if any);
(2) reduce the rate or extend the time for payment of interest on any
Securities;
(3) reduce the principal amount of any Securities;
(4) change the Maturity Date or alter the redemption provisions in this
Indenture or the Securities in a manner adverse to any Holder;
(5) make any changes in the provisions concerning waivers of Defaults or
Events of Default by Holders or the rights of Holders to recover the
principal of, interest on or redemption payment with respect to any
Securities or the Guarantees (if any);
(6) make the principal of, or interest on, any Securities payable with
anything or in any manner other than as provided for in this Indenture and
the Securities; or
(7) modify the subordination provisions of this Indenture (including the
definitions of "Senior Indebtedness" and "Guarantor Senior Indebtedness")
so as to adversely affect the ranking of any Security or any Guarantee (if
any); provided, however, that it is understood that any amend- ment the
purpose of which is to permit the Incurrence of additional Indebtedness
under this Indenture shall not be
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construed as adversely affecting the ranking of any Security or any
Guarantee (if any); and
(ii) without the consent of Holders of not less than 66 2/3% in
aggregate principal amount of the Securities then outstanding, no such
amendment, supplement or waiver may change the Change of Control Payment Date
or the Change of Control Offer price in a manner adverse to any Holder or waive
a Default or Event of Default resulting from a failure to comply with Section
5.15 hereof.
The Company and each Guarantor (if any) agree that no amendment,
supplement or waiver under this Article Ten may make any change that adversely
affects the rights under Article Four or Twelve of any holders of any Senior
Indebtedness or any Guarantor Senior Indebtedness unless the holders of such
Senior Indebtedness or Guarantor Senior Indebtedness consent to the change.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or
waiver.
SECTION 10.03. Compliance with TIA.
From the date on which the Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
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SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by notice to the Trustee
or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in clause (i) of Section
10.02, in which case, the amendment, supplement or waiver shall bind only each
Holder of a Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder's Security; provided, however, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of and
interest on a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place
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an appropriate notation on the Security about the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 10.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Ten; provided, however, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Guarantor shall guarantee, subject to Article Twelve, to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the Securities or the obligations of
the Company hereunder or thereunder, that: (i) the principal of and interest
on the Securities will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise and
interest on the overdue principal, if any, and interest on any interest, to the
extent lawful, of the Securities and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Securities
or of any such other obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 11.05. Each Guarantor's
obligations
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hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor shall waive diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture and in this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such Holder, the Guarantee (if
any), to the extent theretofore discharged, shall be reinstated in full force
and effect. Each Guarantor shall further agree that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Seven for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article Seven, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
SECTION 11.02. Subordination of Guarantee.
The obligations of each Guarantor to the Holders of Securities
pursuant to the Guarantee and this Indenture are expressly subordinate and
subject in right of payment to the prior payment in full of all Guarantor
Senior Indebtedness of such Guarantor, to the extent and in the manner provided
in Article Twelve.
SECTION 11.03. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.04. Release of a Guarantor.
Upon the sale or disposition (whether by merger, stock purchase,
asset sale or otherwise) of a Guarantor (or all or substantially all its
assets) to any Person which is not a Restricted Subsidiary of all the Company's
or any Subsidiary's Capital Stock in, or all or substantially all of the assets
of, any Guarantor, and which sale or disposition is otherwise in compliance
with the terms of this Indenture, in each case, such Guarantor shall be deemed
released from all obligations under this Article Eleven and under its Guarantee
without any further action required on the part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing any
release pursuant to Section 5.17 or this Section 11.04 upon receipt of a
request by the Company accompanied by an Officers' Certificate certifying as to
the compliance with Section 5.17 or this Section 11.04, as applicable. Any
Guarantor not so released remains liable for the full amount of principal of
and interest on, and all other obligations under, the Securities as provided in
this Article Eleven.
SECTION 11.05. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder shall confirm
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the obligations of such Guarantor under
the Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
its Guarantee or pursuant to Section 11.07, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
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SECTION 11.06. Guarantors May Consolidate,
etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety, to the Company or
another Guarantor. Upon any such consolidation, merger, sale or conveyance,
the Guarantee given by such Guarantor shall no longer have any force or effect.
SECTION 11.07. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors shall agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the relative net assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantee.
SECTION 11.08. Waiver of Subrogation.
Each Guarantor shall irrevocably waive any claim or other rights
which it may at any time acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any Holder of Securities against
the Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account
of such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Securities shall not have been paid
in full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Holders, and
shall, subject to the provisions of Section 11.02, Article Four and Article
Twelve, forthwith be
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paid to the Trustee for the benefit of the Holders to be credited and applied
upon the Securities, whether matured or unmatured, in accordance with the terms
of this Indenture. Each Guarantor shall acknowledge that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 11.08 is knowingly
made in contemplation of such benefits.
SECTION 11.09. Execution of Guarantee.
To further evidence the Guarantee set forth in this Article Eleven,
each Guarantor hereby agrees that a notation of such Guarantee, substantially
in the form included in Exhibit B hereto, shall be endorsed on each Security
authenticated and delivered by the Trustee after this Article Eleven with
respect to such Guarantor becomes effective in accordance with Section 5.17 and
such Guarantee shall be executed by either manual or facsimile signature of an
Officer of each Guarantor. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
Failure to endorse on any Security a notation of a Guarantee shall
not affect the validity, enforceability or effectiveness of such Guarantee.
Each such Guarantee shall be signed on behalf of each Guarantor by two
Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to
such Guarantee. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, with the notation of a Guarantee
substantially in the form of Exhibit B hereto duly executed by the applicable
Guarantor, shall constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee
shall cease to be such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed the Guarantee had not
ceased to be such officer of the Guarantor.
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SECTION 11.10. Waiver of Stay, Extension or Usury Laws.
Each Guarantor shall covenant (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive each such
Guarantor from performing its Guarantee as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each such Guarantor shall expressly waive all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his acceptance
of Guarantees, agrees, that any payment of Obligations by a Guarantor in
respect of its Guarantee (collectively, as to any Guarantor, its "Guarantee
Obligations") is subordinated, to the extent and in the manner provided in this
Article Twelve, to the prior payment in full in cash or Cash Equivalents of all
Guarantor Senior Indebtedness of such Guarantor, whether outstanding on the
Issue Date or thereafter Incurred, including with respect to Guarantor Senior
Indebtedness, any interest accruing thereon subsequent to the occurrence of an
Event of Default specified in clause (vi) or (vii) of Section 7.01 relating to
the Company or any Guarantor, subsequent to a bankruptcy or other similar
proceeding whether or not such interest is an allowed claim enforceable against
the Company under any Bankruptcy Law.
This Article Twelve shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Guarantor Senior
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Indebtedness and such holders are made obligees hereunder and any one or more
of them may enforce such provisions.
The obligations of the Guarantors to the Trustee under Section 8.07
shall not be subject to the provisions of this Article Twelve.
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default.
(a) Unless Section 12.03 shall be applicable, no direct or indirect
payment (other than payments by a trust previously established pursuant to
Article Nine hereof) or distribution of any assets of any Guarantor of any kind
or character by such Guarantor on account of Obligations on the Securities or
on account of the purchase, redemption or other acquisition of Securities or on
account of Guarantee Obligations on the Securities whether pursuant to the
terms of the Securities or upon acceleration or otherwise shall be made if, at
the time of such payment or distribution, there exists a default in the payment
of all or any portion of principal of, premium, if any, or interest on (i) any
Designated Senior Indebtedness or (ii) Significant Senior Indebtedness (and the
Trustee has received written notice thereof) and such Designated Senior
Indebtedness or Significant Senior Indebtedness is guaranteed by such Guarantor
(which guarantee constitutes Guarantor Senior Indebtedness of such Guarantor),
and such default shall not have been cured or waived by or on behalf of the
holders of such Guarantor Senior Indebtedness or shall have ceased to exist,
until such default shall have been cured or waived or shall have ceased to
exist or such Guarantor Senior Indebtedness shall have been discharged or paid
in full in cash or Cash Equivalents, after which such Guarantor shall resume
making any and all required payments in respect of the obligations under its
Guarantee.
(b) Unless Section 12.03 shall be applicable, during the continuance
of any other event of default with respect to any Designated Senior
Indebtedness and such Designated Senior Indebtedness is guaranteed by a
Guarantor (which guarantee constitutes Guarantor Senior Indebtedness of such
Guarantor) pursuant to which the maturity thereof may be accelerated, upon the
earlier to occur of (a) receipt by the Trustee of written notice from the
holders of a majority of the outstanding principal amount of the Guarantor
Senior Indebtedness or their Representative stating that such notice is a
notice pursuant to Section 12.02(b) of this Indenture, or (b) if such event of
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default results from the acceleration of the Securities, the date of such
acceleration, no such payment (other than payments by a trust previously
established pursuant to Article Nine hereof) or distribution of any asset of
such Guarantor of any kind or character shall be made by such Guarantor upon or
in respect of the Securities (including without limitation on account of any
principal of, premium, if any, or interest on, the Securities) or on account of
the purchase, redemption or other acquisition of Securities or on account of
Guarantee Obligations on the Securities for a period ("Guarantor Payment
Blockage Period") commencing on the earlier of the date of receipt of such
notice or the date of such acceleration and ending 179 days thereafter
(provided such Guarantor Senior Indebtedness shall theretofore not have been
accelerated) (unless (x) such Guarantor Payment Blockage Period shall be
terminated by written notice to the Trustee from the holders of a majority of
the outstanding principal amount of such Guarantor Senior Indebtedness or their
Representative who delivered such notice or (y) such default is cured or
waived, or ceases to exist or such Guarantor Senior Indebtedness is discharged
or paid in full in cash or Cash Equivalents), after which such Guarantor shall
promptly notify the Trustee of such cure or waiver and resume making any and
all required payments in respect of the obligations under its Guarantee.
Notwithstanding anything herein to the contrary, in no event will a Guarantor
Payment Blockage Period extend beyond 179 days from the date on which such
Guarantor Payment Blockage Period was commenced. Not more than one Guarantor
Payment Blockage Period may be commenced with respect to the Securities during
any period of 365 consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Guarantor Payment Blockage
Period with respect to the Guarantor Senior Indebtedness initiating such
Guarantor Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Guarantor Payment Blockage Period by the holders of
such Guarantor Senior Indebtedness or their Representative whether or not
within a period of 365 consecutive days unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder shall have received any payment prohibited by the foregoing
provisions of this Section 12.02, then and in such event such payment shall be
paid over and delivered forthwith to the Representatives or as a court of
competent jurisdiction shall direct.
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SECTION 12.03. Guarantee Obligations Subordinated to Prior Payment of All
Guarantor Senior Indebtedness on Dissolution, Liquidation or
Reorganization of Such Guarantor.
Upon any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities, upon any
dissolution, winding up, total or partial liquidation or reorganization of such
Guarantor and whether voluntary or involuntary (including, without limitation,
in bankruptcy, insolvency or receivership proceedings or upon any assignment
for the benefit of creditors or any other marshalling of assets and liabilities
of such Guarantor and whether voluntary or involuntary):
(a) the holders of all Guarantor Senior Indebtedness of such
Guarantor shall first be entitled to receive payments in full in cash or
Cash Equivalents of all amounts payable under Guarantor Senior
Indebtedness (including, with respect to Designated Senior Indebtedness
guaranteed by such Guarantor, any interest accruing after the commencement
of any such proceeding at the rate specified in the applicable Designated
Senior Indebtedness whether or not interest is an allowed claim
enforceable against the Company in any such proceeding) before the Holders
will be entitled to receive any payment with respect to the Guarantee
(excluding Permitted Subordinated Reorganization Securities), and until
all Obligations with respect to the Guarantor Senior Indebtedness are paid
in full in cash or Cash Equivalents, any distribution to which the Holders
would be entitled (excluding Permitted Subordinated Reorganization
Securities) shall be made to the holders of Guarantor Senior Indebtedness;
provided, however, that no payment by any other Guarantor or the Company
shall constitute payment on behalf of such Guarantee for purposes of this
Section 12.03(a);
(b) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled
(excluding Permitted Subordinated Reorganization Securities) except for
the provisions of this Article Twelve, shall be paid by the liquidating
trustee or agent or other person making such a payment or distribution,
directly to the holders of Guarantor Senior Indebtedness of such Guarantor
or their Representative, ratably according to the respective amounts
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of such Guarantor Senior Indebtedness remaining unpaid held or
represented by each, until all such Guarantor Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment or distribution to the
holders of such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of such Guarantor of any kind or character, whether
in cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent in respect of payment of the Guarantee before
all Guarantor Senior Indebtedness of such Guarantor is paid in full in
cash or Cash Equivalents, such payment or distribution (subject to the
provisions of Sections 12.06 and 12.07) shall be received, segregated from
other funds, and held in trust by the Trustee or such Holder or Paying
Agent for the benefit of, and shall immediately be paid over to, the
holders of such Guarantor Senior Indebtedness or their Representative,
ratably according to the respective amounts of such Guarantor Senior
Indebtedness held or represented by each, until all such Guarantor Senior
Indebtedness remaining unpaid shall have been paid in full in cash or Cash
Equivalents, after giving effect to any concurrent payment or distribution
to the holders of Guarantor Senior Indebtedness. Notwithstanding anything
to the contrary contained herein, in the absence of its gross negligence
or wilful misconduct, the Trustee shall have no duty to collect or
retrieve monies previously paid by it in good faith; provided that this
sentence shall not affect the obligation of any other party receiving such
payment to hold such payment for the benefit of, and to pay over such
payment over to, the holders of such Guarantor Senior Indebtedness or
their Representative.
Each Guarantor shall give prompt notice to the Trustee prior to any
dissolution, winding up, total or partial liquidation or total or
reorganization (including, without limitation, in bankruptcy, insolvency, or
receivership proceedings or upon any assignment for the benefit of creditors or
any other marshalling of such Guarantor's assets and liabilities).
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SECTION 12.04. Holders of Guarantee Obligations To Be Subrogated to Rights of
Holders of Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Indebtedness, the Holders of Guarantee Obligations of a
Guarantor shall be subrogated to the rights of the holders of Guarantor Senior
Indebtedness of such Guarantor to receive payments or distributions of assets
of such Guarantor applicable to such Guarantor Senior Indebtedness until all
amounts owing on or in respect of the Guarantee Obligations shall be paid in
full in cash, and for the purpose of such subrogation no payments or
distributions to the holders of such Guarantor Senior Indebtedness by or on
behalf of such Guarantor, or by or on behalf of the Holders by virtue of this
Article Twelve, which otherwise would have been made to the Holders, shall, as
between such Guarantor and the Holders, be deemed to be payment by such
Guarantor to or on account of such Guarantor Senior Indebtedness, it being
understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of such Guarantor Senior Indebtedness, on the other
hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Twelve shall have
been applied, pursuant to the provisions of this Article Twelve, to the payment
of all amounts payable under such Guarantor Senior Indebtedness, then the
Holders shall be entitled to receive from the holders of such Guarantor Senior
Indebtedness any payments or distributions received by such holders of such
Guarantor Senior Indebtedness in excess of the amount sufficient to pay all
amounts payable under or in respect of such Guarantor Senior Indebtedness in
full in cash or Cash Equivalents.
SECTION 12.05. Obligations of the Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Guarantors and the Holders, the obligation of the Guarantors, which is absolute
and unconditional, to pay to the Holders all amounts due and payable under the
Guarantees as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors other than the holders of the Guarantor
Senior
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Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Twelve, of the holders of Guarantor Senior Indebtedness in respect of cash,
property or securities of the Guarantors received upon the exercise of any such
remedy. Upon any payment or distribution of assets of any Guarantor referred
to in this Article Twelve, the Trustee, subject to the provisions of Sections
8.01 and 8.02, and the Holders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of Guarantor Senior Indebtedness
and other Indebtedness of any Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve. Nothing in this Section 12.05 shall apply
to the claims of, or payments to, the Trustee under or pursuant to Section
8.07.
SECTION 12.06. Trustee Entitled To Assume
Payments Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received notice thereof
from the Company or any Guarantor or from one or more holders of Guarantor
Senior Indebtedness or from any Representative therefor and, prior to the
receipt of any such notice, the Trustee, subject to the provisions of Sections
8.01 and 8.02, shall be entitled in all respects conclusively to assume that no
such fact exists.
SECTION 12.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Sections 9.01 and 9.02
shall be for the sole benefit of Holders and, to the extent allocated for the
payment of Securities, shall not be subject to the subordination provisions of
this Article Twelve. Otherwise, any deposit of assets or securities by or on
behalf of a Guarantor with the Trustee
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or any Paying Agent (whether or not in trust) for payment of the Guarantee
shall be subject to the provisions of this Article Twelve; provided that if
prior to the second Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for any purpose
(including, without limitation, the payment of either principal of or interest
on any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the notice provided for in Section 12.06, then the
Trustee or such Paying Agent shall have full power and authority to receive
such assets and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary received by it on or
after such date. The foregoing shall not apply to the Paying Agent if the
Company or any Subsidiary or Affiliate of the Company is acting as Paying
Agent. Nothing contained in this Section 12.07 shall limit the right of the
holders of Guarantor Senior Indebtedness to recover payments as contemplated by
this Article Twelve.
SECTION 12.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by any Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 12.08, the holders of Guarantor Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article Twelve or the obligations hereunder of the Holders of the
Securities to the holders of Guarantor Senior Indebtedness, do any one or more
of the following: (1) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Guarantor Senior Indebtedness or any
instrument evidencing the same or any agreement under which Guarantor Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Guarantor Senior
Indebtedness; (3) release any person liable in any manner for
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the collection or payment of Guarantor Senior Indebtedness; and (4) exercise or
refrain from exercising any rights against the Company and any other person;
provided, however, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Seven hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
(c) Each Holder by accepting a Security agrees that the
Representative of any Guarantor Senior Indebtedness (including, without
limitation, the Credit Agent), in its discretion, without notice or demand and
without affecting any rights of any holder of Guarantor Senior Indebtedness
under this Article Twelve, may foreclose any mortgage or deed of trust covering
interests in real property secured thereby, by judicial or nonjudicial sale; and
such Holder hereby waives any defense to the enforcement by the Representative
of any Guarantor Senior Indebtedness (including, without limitation, the Credit
Agent) or by any holder of any Guarantor Senior Indebtedness against such Holder
of this Article Twelve after a judicial or nonjudicial sale or other disposition
of its interests in real property secured by such mortgage or deed of trust; and
such Holder expressly waives any defense or benefits that may be derived from
California Civil Code Sections 2808, 2809, 2810, 2819, 2845, 2849 or 2850, or
California Code of Civil Procedure Sections 580a, 580d or 726, or comparable
provisions of the laws of any other jurisdiction or any similar statute in
effect in any other jurisdiction.
SECTION 12.09. Holders Authorize Trustee To Effectuate Subordination of
Guarantee Obligations.
Each Holder of the Guarantee Obligations by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article Twelve, and appoints the Trustee his attorney-in-fact
for such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Guarantor)
tending towards liquidation or reorganization of the business and assets of any
Guarantor, the immediate filing of a claim for the unpaid balance under its or
his Guarantee Obligations in
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the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Guarantor Senior Indebtedness or
their Representative is hereby authorized to file an appropriate claim for and
on behalf of the Holders of said Guarantee Obligations. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Guarantor
Senior Indebtedness or their Representative to authorize or consent to or
accept or adopt on behalf of any holder of Guarantee Obligations any plan of
reorganization, arrangement, adjustment or composition affecting the Guarantee
Obligations or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Guarantor Senior Indebtedness or their Representative to vote in
respect of the claim of any holder of Guarantee Obligations in any such
proceeding.
SECTION 12.10. Right of Trustee To Hold Guarantor Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Twelve in respect of any Guarantor Senior Indebtedness at any time held
by it to the same extent as any other holder of Guarantor Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
SECTION 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by reason
of any provision of this Article Twelve shall not be construed as preventing
the occurrence of a Default or an Event of Default under Section 7.01.
Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any,
under this Article Twelve of the holders, from time to time, of Guarantor
Senior Indebtedness.
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SECTION 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness, and shall not be liable to any such
holders (other than for its willful misconduct or gross negligence) if it shall
in good faith mistakenly pay over or deliver to the holders of Guarantee
Obligations or the Company or any other person, money or assets to which any
holders of Guarantor Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise. Nothing in this Section 12.12 shall affect the
obligation of any person other than the Trustee to hold such payment for the
benefit of, and to pay such payment over to, the holders of Guarantor Senior
Indebtedness or their Representative.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Section 3.18(c) of the TIA, the imposed
duties shall control.
SECTION 13.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company or any Guarantor:
▇▇▇▇▇'▇ Food & Drug Centers, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
w/a copy to:
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard
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▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
if to the Trustee:
Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
if to the Credit Agent:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
w/a copy to:
Bankers Trust Company
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Each of the Company, the Trustee, the Guarantors and the Credit Agent
by written notice to each other such person may designate additional or
different addresses for notices to such person. Any notice or communication to
the Company, the Trustee, the Guarantors and the Credit Agent shall be deemed
to have been given or made as of the date so delivered if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and five (5) calendar days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is
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mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Guarantors, the Trustee, the Registrar and any other person
shall have the protection of TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company, upon request, shall furnish to
the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 5.07, shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
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(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York, in the city in which the principal corporate trust office of the Trustee
is located or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason
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of such obligations or their creations. Each Holder by accepting a Security
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Securities.
SECTION 13.11. Successors.
All agreements of the Company and each Guarantor in this Indenture
and the Securities shall bind their respective successors. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. No Violation.
Notwithstanding the provisions of this Indenture, in no event shall
any transaction, agreement, payment or other event to be consummated, entered
into or made in connection with the Merger or any financing thereof be
considered a violation of any provision of this Indenture or constitute a
Change of Control hereunder.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first written above.
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
and Secretary
FLEET NATIONAL BANK, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
127
EXHIBIT A
FORM OF SECURITY
[FACE OF SECURITY]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until this Global Security is exchanged in whole or in
part for the individual Securities represented hereby, this Global Security may
not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or by a
Depository or any such nominee to a successor Depository or a nominee of a
successor Depository.
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC.
11 1/4% Senior Subordinated Note
due 2007
No. $
Cusip No. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to or registered assigns, the principal sum of
Dollars, on May 15, 2007.
Interest Payment Dates: May 15 and November 15 commencing on
November 15, 1996.
Record Dates: May 1 and November 1.
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Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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129
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated:
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC.
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Trustee's Certification of Authentication
This is one of the 11 l/4% Senior
Subordinated Notes Due 2007 described
in the within-mentioned Indenture
FLEET NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Signatory
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[REVERSE SIDE OF SECURITY]
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC.
11 1/4% Senior Subordinated Note
due 2007
1. Interest.
▇▇▇▇▇'▇ FOOD & DRUG CENTERS, INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
at the rate per annum shown above. The Company will pay interest semi-annually
on each May 15 and November 15 of each year (the "Interest Payment Date"),
commencing on November 15, 1996, to the Holders of record on the immediately
preceding May 1 and November 1. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance of the Securities. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to the
rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by wire transfer
of Federal funds, or interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address. Notwithstanding the foregoing, the
Company shall pay or cause to be paid all amounts payable with respect to
non-DTC eligible Securities by wire transfer of Federal funds to the account of
the Holders of such Securities.
3. Paying Agent and Registrar.
Initially, Fleet National Bank (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any
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Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of May
23, 1996 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are general
unsecured obligations of the Company limited in aggregate principal amount to
$575,000,000.
5. Optional Redemption.
The Securities will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, on and after May 15, 2001, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the twelve-month period commencing on May 15 of the
year set forth below, plus, in each case, accrued and unpaid interest to the
date of redemption:
Redemption
Year Price
2001............................... 104.219%
2002............................... 102.813%
2003............................... 101.406%
2004 and thereafter................ 100.000%
In addition, on or prior to May 15, 1999, the Company may, at its
option, use the Net Cash Proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the principal amount of the Securities
originally issued, at the following redemption prices (expressed as percentages
of the principal amount) if redeemed during the 12 months commencing on May 15
of the year set forth below, plus, in each case, accrued and unpaid interest,
if any, to the date of redemption
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(provided that the redemption notice shall have been sent not later than 60
days after the consummation of such Public Equity Offering):
Redemption
Year Price
1996............................... 111.250%
1997............................... 109.844%
1998............................... 108.438%
The documents evidencing Senior Indebtedness will restrict the
Company's ability to optionally redeem the Securities.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 60 days after the consummation of such Public
Equity Offering. Securities in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date and payment of the Securities called for redemption is not
prohibited under Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the repurchase of such Holder's Securities pursuant to a
Change of Control Offer at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of purchase. The
Company shall not be required to repurchase Securities until it has complied
with its covenants to repay in full all Indebtedness of the Company and its
Subsidiaries under the Credit Agreement or offer to repay in full all such
Indebtedness and repay the Indebtedness of each lender who has accepted its
offer to repay such Indebtedness or to obtain the requisite
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consent under the Credit Agreement to permit the repurchase of the Securities
pursuant to a Change of Control Offer.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to the repayment of Pari Passu Indebtedness,
Indebtedness of Restricted Subsidiaries or Senior Indebtedness, to make Related
Business Investments, an investment in properties and assets that replace the
properties and assets that are the subject of such Asset Sale, an investment in
properties and assets that will be used in the business of the Company and the
Restricted Subsidiaries existing on the Issue Date or in a business reasonably
related thereto or to purchase in a Net Proceeds Offer (at a price equal to
100% of the aggregate principal amount thereof, plus accrued interest to the
date of purchase) such aggregate principal amount of Securities which, when
added to the accrued interest thereon, shall be equal to the net proceeds
required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agents will pay the money back to the
Company at its request. After that, all liability of the Trustee and such
Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to
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pay the principal of and interest on the Securities to redemption or maturity
and complies with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the Indenture and the
Securities (including the financial covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities and, if
applicable, the Guarantees may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or compliance with any provision may be waived with the consent of the Holders
of a majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, comply with Article Six or Section 11.06 of
the Indenture, or comply with any requirements of the Commission in connection
with the qualification of the Indenture under the TIA, or make any other change
that does not adversely affect the rights of any Holder in any material
respect.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and the Restricted Subsidiaries to, among other things, incur
additional Indebtedness or Liens, make payments in respect of its Capital Stock
and merge or consolidate with any other person and sell, lease, transfer or
otherwise dispose of substantially all of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
15. Subordination.
The Securities will be subordinated in right of payment to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture) of the
Company. The Guarantees, if applicable, will be subordinated in right to
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of Guarantor Senior Indebtedness (as defined in the
Indenture). To the extent and in the manner provided in the Indenture, Senior
Indebtedness, and in the case of payment by a Guarantor, Guarantor Senior
Indebtedness, must be paid before any payment may be made to any Holder of this
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Security. Any Holder by accepting this Security agrees to the subordination
and authorizes the Trustee to give it effect.
16. Successors.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
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136
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. Guarantees.
This Security may after the date hereof be entitled to certain
Guarantees made for the benefit of the Holders. Reference is hereby made to
Section 5.17 and Articles Eleven and Twelve of the Indenture and to Exhibit B
to the Indenture for the terms of any Guarantee.
23. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
▇▇▇▇▇'▇ Food & Drug Centers, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
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137
[FORM OF ASSIGNMENT]
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Please insert Social Security or other
identifying number of assignee
_______________________________________
and irrevocably appoint _______________________ agent to
transfer this Security on the books of the Company. The agent
may substitute another to act for him.
Dated:____________________ Signature:_________________________
______________________________________________________________
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:__________________________________________
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138
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 5.15 or Section 5.16 of the Indenture, as the case may be,
check the appropriate box below: Section 5.15 [ ] Section 5.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 5.15 or Section 5.16 of the Indenture, as the
case may be, state the amount you want to be purchased:
$
Date:__________ Signature:____________________________
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee:______________________________________
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139
Exhibit B
GUARANTEE
The Guarantors (as defined in the Indenture (the "Indenture")
referred to in the Security upon which this notation is endorsed and each
hereinafter referred to as a "Guarantor," which term includes any successor
person under the Indenture) have unconditionally guaranteed on a senior
subordinated basis (such guarantee by each Guarantor being referred to herein
as the "Guarantee") (i) the due and punctual payment of the principal of and
interest on the Securities, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal and interest,
if any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in Article Eleven and
Article Twelve of the Indenture and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
The obligations of each Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Guarantor Senior Indebtedness of such Guarantor, to the
extent and in the manner provided, in Article Eleven and Article Twelve of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of the Guarantee therein made.
No stockholder, officer, director or incorporator, as such, past,
present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The internal laws of the State of New York shall govern this
Guarantee without regard to principles of conflict of laws.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[NAME OF GUARANTOR]
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140
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
B-2