FOOD LION, INC
and
THE BANK OF NEW YORK, Trustee
_____________
FIRST SUPPLEMENTAL INDENTURE
_____________
Dated as of April 21, 1997
_____________
Providing for the issuance of Debt Securities in series.
FIRST SUPPLEMENTAL INDENTURE dated as of April 21, 1997 (the
"First Supplemental Indenture"), between FOOD LION, INC., a North
Carolina corporation (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
RECITALS:
WHEREAS, the Company and the Trustee entered into an
Indenture, dated as of August 15, 1991 (the "Indenture") to
provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Debt Securities") (capitalized
terms used herein without definition shall have the respective
meanings ascribed to them in the Indenture);
WHEREAS, Section 10.01 of the Indenture provides that the
Company and the Trustee may supplement the Indenture without the
written consent of the Holders in certain situations;
WHEREAS, Sections 2.01 and 2.02 of the Indenture provides
that the Company may enter into an indenture supplement without
the consent of any Holders to establish the terms of one or more
series of the Debt Securities;
WHEREAS, all acts and things prescribed by the Indenture, by
law and by the Certificate of Incorporation and the Bylaws of the
Company and of the Trustee necessary to make this First
Supplemental Indenture a valid instrument legally binding on the
Company and the Trustee, in accordance with its terms, have been
duly done and performed; and
WHEREAS, all conditions precedent to amend or supplement the
Indenture have been met.; and
WHEREAS, all Debt Securities issued and outstanding as of
April 21, 1997 shall continue to be governed by the provisions of
the Indenture;
NOW, THEREFORE, each party agrees, for the benefit of the
other party and for the equal and ratable benefit of the Holders
of any series of Debt Securities, issued on or after April 21,
1997, including, without limitation, the Debt Securities
described in Article 2 hereof, to the amendments set forth below
(the "Amendments") which will become operative pursuant to the
terms hereof.
ARTICLE 1
Amendments
Section 1.01. Amendments and Modifications to Article One.
a. Insert the following as a new definition to Section 1.01.
The term "Attributable Debt" means in connection with a
Sale and Lease-Back Transaction the aggregate of
present values (discounted at a rate per annum equal to
the average interest borne by all outstanding Debt
Securities determined on a weighted average basis and
compounded semi-annually) of the obligations of the
Company or any Subsidiary for net rental payments
during the remaining term of the applicable lease
(including any period for which such lease has been
extended or may, at the option of the lessor, be
extended).
b. Insert the following as a new definition in
Section 1.01.
The term "Capital Lease" means any lease of property
which, in accordance with generally accepted accounting
principles, should be capitalized on the lessee's
balance sheet or for which the amount of the asset and
liability thereunder as if so capitalized should be
disclosed in a note to such balance sheet; and
"Capitalized Lease Obligation" means the amount of the
liability which should be so capitalized or disclosed.
c. Insert the following as a new definition in
Section 1.01.
The term "Funded Indebtedness" means any Indebtedness
maturing by its terms more than one year from the date
of the determination thereof, including any
Indebtedness renewable or extendible at the option of
the obligor to a date later than one year from the date
of the determination thereof.
d. Insert the following as a new definition in Section 1.01.
The term "Indebtedness" of any Person means all
obligations (other than the Debt Securities of such
series) of or guaranteed or assumed by, such Person or
any of such Person's Restricted Subsidiaries for
borrowed money or evidenced by bonds, debentures, notes
or other similar instruments.
e. Insert the following as a new definition in
Section 1.01.
The term "Restricted Subsidiaries" means all
Subsidiaries other than Non-Restricted Subsidiaries.
"Non-Restricted Subsidiary" means any Subsidiary that
the Company's Board of Directors has in good faith
declared pursuant to a written resolution not to be of
material importance, either singly or together with all
other Non-Restricted Subsidiaries, to the business of
the Company and its consolidated Subsidiaries taken as
a whole. Initially the Company will have no Non-
Restricted Subsidiaries.
f. Delete the definition of "Sale and Lease-back
Transaction" in Section 1.01.
g. Insert the following as a new definition in
Section 1.01.
The term "Significant Subsidiary" means, with respect
to the Company, any Subsidiary that is a significant
subsidiary within the meaning of Rule 1-02 of
Regulation S-X promulgated by the Securities and
Exchange Commission.
Section 1.02. Amendments and Modifications to Article Four
a. Section 4.10(D) of the Indenture is restated in its entirety
to read as follows:
D. Anything in this Section 4.10 to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section 4.10 is subject to the provisions of
Sections 12.03, 12.04 and 12.05.
d. Section 4.11(C) of the Indenture is replaced in its entirety
by new Section 4.11(C) that reads as follows:
C. If at any time the Company or any Subsidiary shall issue,
assume or guarantee any Indebtedness secured by any mortgage and
if subsection A of this Section 4.11 requires that the NotDebt
Securities be secured equally and ratably with such
Indebtedness, the Company will promptly execute, at its
expense, any instruments necessary to so equally and ratably
secure the Debt Securities and deliver the same to the Trustee.
1. an Officers' Certificate stating that the covenant of
the Company contained in subsection A of this Section
4.11 has been complied with; and
2. an Opinion of Counsel to the effect that such
covenant has been complied with, and that any
instruments executed by the Company in the
performance of such covenant comply with the
requirements of such covenant.
In the event that the Company shall hereafter
secure the Debt Securities equally and ratably with any
other obligation or Indebtedness pursuant to the
provisions of this Section 4.11, the Trustee is hereby
authorized to enter into an indenture or agreement
supplemental thereto and to take such action, if any,
as it may deem advisable to enable it to enforce
effectively the rights of the holders of the Debt
Securities so secured, equally and ratably with such
other obligation or Indebtedness.
Notwithstanding the above, any such indenture or
agreement supplemental thereto shall provide, by its
terms, that the mortgage shall be automatically and
unconditionally released and discharged upon the
release or discharge of the mortgage which resulted in
the creation of such mortgage, except a discharge or
release by, or as a result of, payment under such
iIndebtedness.
c.
Section 4.12 of the Indenture, entitled "Restrictions
on Sale and Lease-back Transactions" is replaced in
its entirety by new Section 4.12 that reads as
follows:
Section 4.12 Restrictions on Sale and Lease-Back.
So long as any Debt Securities are Outstanding,
the Company agrees that it will not, and will not
permit any Restricted Subsidiary to, enter into any
arrangement with any Person providing for the leasing
by the Company or a Restricted Subsidiary of any
Operating Property (other than any such arrangement
involving a lease for a term, including renewal rights,
for not more than three years and leases between the
Company and a Subsidiary or between Subsidiaries),
whereby such Operating Property has been or is to be
sold or transferred by the Company or a Restricted
Subsidiary to such Person (herein referred to as a
"Sale and Lease-Back Transaction"), unless:
A. the Company or such Restricted Subsidiary
would, at the time of entering into a Sale and
Lease-Back Transaction, be entitled to incur
Indebtedness secured by a lien on the Operating
Property to be leased in an amount at least equal
to the Attributable Debt in respect of such Sale
and Lease-Back Transaction without equally and
ratably securing the Debt Securities pursuant to
Section 4.121, or
B. the proceeds of the sale of the Operating
Property to be leased are at least equal to the
fair market value of such Operating Property (as
determined by the chief financial officer or chief
accounting officer of the Company) and an amount
in cash equal to the net proceeds is applied,
within 180 days of the effective date of such
transaction, to the purchase or acquisition (or,
in the case of Operating Property, the
construction), acquisition, or construction of
Operating Property or to the retirement (other
than at maturity or pursuant to a mandatory
sinking fund or redemption provision and other
than Indebtedness owned by the Company or any
Restricted Subsidiary) of Debt Securities or of
Funded Indebtedness of the Company tranking on a
parity with or senior to the Debt Securities, or
in the case of a Sale and Lease-Back Transaction
by a Restricted Subsidiary, or Funded Indebtedness
of such Restricted Subsidiary; provided that in
connection with any such retirement, any related
loan commitment or the like shall be reduced in an
amount equal to the principal amount so retired.
The foregoing restriction shall not apply to, in
the case of any Operating Property acquired or
constructed subsequent to the date 18 months prior to
the date of this Indenture, any Sale and Lease-Back
Transaction with respect to such Operating Property
(including presently owned real property upon which
such Operating Property is to be constructed) if a
binding commitment is entered into with respect to such
Sale and Lease-Back Transaction within 1836 months
after the later of the acquisition of the Operating
Property or the completion of improvements or
construction thereon or commencement of full operations
at such Operating Property (which, in the case of a
retail store, is the opening of the store for business
to the public).
Section 1.03. Amendments and Modifications to Article Six.
a. Section 6.01 of the Indenture, entitled "Definitions of
Event of Default; Acceleration; Waiver; and Restoration," is
restated in its entirety to read as follows:
Section 6.01 Definition of Event of Default;
Acceleration; Waiver; and Restoration
"Event of Default" with respect to Debt Securities
of any series wherever used herein, means each one of
the following events which shall have occurred and be
continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative
governmental body):
A. default in the payment of any installment of interest upon
any of the Debt Securities of such series as and when the same
shall become due and payable, and continuance of such default for
a period of 30 days; or
B. default in the payment of all or any part of the principal
of (or premium, if any, on) any of the Debt Securities of such
series as and when the same shall become due and payable either
at maturity, upon a redemption or required repurchase, if any, by
declaration or otherwise (including any sinking fund payment); or
C. failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company in the Debt Securities of such series (other than a
covenant or agreement in respect of the Debt Securities of such
series a default in the performance or breach of which is
elsewhere in this Section specifically dealt with) or contained
in this Indenture (other than a covenant or agreement which is
not applicable to the Debt Securities of such series) for a
period of 60 days after the date on which written notice
specifying such failure, stating that such notice is a "Notice of
Default" hereunder and demanding that the Company remedy the
same, shall have been given by registered or certified mail,
return receipt requested, to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of
such series; or
D. a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or a decree or order
adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, approving as properly filed a petition seeking
reorganization, assignment, adjustment or composition of, or in
respect of, the Company or any Significant Subsidiary under any
applicable federal; or state law or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or any Significant Subsidiary or
for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days; or
E. the Company or any Significant Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect,
or any other case or proceeding to be adjudicated a bankruptcy or
insolvent, or consent to the entry of an order tofor relief in an
involuntary case or proceeding under any such law or to the
commencement of any bankruptcy or insolvency proceeding against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable state or
federal law, or consent to the filing of such petition or, to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Company or any Significant Subsidiary for any
substantial part of its property, or make any general assignment
for the benefit of creditors, or the admission by the Company or
any Significant Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action in furtherance of any such action; or
F. failure by the Company or any Significant Subsidiary to make
any payment at maturity, including any applicable grace period,
in respect of Indebtedness of the Company or any Significant
Subsidiary (other than the Debt Securities of such series or non-
recourse obligations) in an amount in excess of $25,000,000 or
the equivalent thereof in any other currency or composite
currency and such failure shall have continued without having
been cured, waived, rescinded or annulled for a period of 30 days
after written notice thereof shall have been given by registered
or certified mail, return receipt requested, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of
not less than 25% in aggregate principal amount of the
Outstanding Securities of such series; or
G. a default with respect to any Indebtedness of the Company or
any Significant Subsidiary, which default results in the
acceleration of Indebtedness of the Company or any Significant
Subsidiary (other than the Debt Securities of such series or non-
recourse obligations) in an amount in excess of $25,000,000 or
the equivalent thereof in any other currency or composite
currency without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled for
a period of 30 days after written notice thereof shall have been
given by registered or certified mail, return receipt requested,
to the Company by the Trustee, or to the Company and the Trustee
by the Holders of not less than 125% in aggregate principal
amount of the Outstanding Debt Securities of such series; or
H. any other Event of Default provided in the supplemental
indenture or Board Resolutions under which such series of Debt
Securities is issued or in the form of Debt Security for such
series.
If any Event of Default occurs and is
continuing with respect to the Debt Securities of
any series, then, and in each and every such case
(other than an Event of Default specified in
clause (d) or (eD) or (E) of this Section relating
to the Company), except for any series of Debt
Securities the principal of which shall have
already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate
principal; amount of the Debt Securities of such
series then Outstanding hereunder (each such
series voting as a separate class) by notice in
writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire
principal (or, if the Securities of such series
are Original Issue Discount Securities, such
portion of the principal amount as may be
specified in the terms of such series) of all Debt
Securities of such series, premium (if any) and
the interest accrued thereon (if any), to be due
and payable immediately, and upon any such
declaration, the same shall become immediately due
and payable. If an Event of Default specified in
clause (d) or (eD) or (E) of this Section relating
to the Company occurs, such principal amount shall
ipso facto become and be immediately due and
payable without any declaration or other act on
the part of the Trustee or any Holder.
The foregoing provisions, however, are
subject to the condition that if, at any time
after the principal (or, if the Debt Securities of
such series are Original Issue Discount
Securities, such portion of the principal as may
be specified in the terms thereof) of the Debt
Securities of any series shall have been so
declared due and payable, and before any judgment
or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debt
Securities of each such series and the principal
of all Debt Securities of such series which shall
have become due otherwise than by acceleration
(with interests upon such principal and, to the
extent that payment of such interest is
enforceable under applicable law, on overdue
installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified
in the Debt Securities of such series to the date
of such payment or deposit) and such amount as
shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and
counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-
payment of the principal of Debt Securities which
shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as
provided herein - then and in every such case, the
Holders of a majority in aggregate principal
amount of all the Debt Securities of such series
then Outstanding (each series voting as a separate
class), by written notice to the Company and to
the Trustee, may waiver all defaults with respect
to each such series and rescind and annul such
declaration and its consequences, but no such
waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a
portion of the principal of any Original Issue
Discount Securities shall have been accelerated
and declared due and payable pursuant to the
provisions hereof, then, from and after such
declaration, unless such declaration has been
rescinded and annulled, the principal amount of
such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due
and payable as a result of such acceleration and
payment of such portion of the principal thereof
as shall be due and payable as a result of such
acceleration, together with accrued interest, if
any, thereon and all other amounts owing
thereunder, shall constitute payment in full of
such Original Issue Discount Securities.
In case the Trustee or any Securityholder
shall have proceeded to enforce any right under
this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or
shall have been determined adversely to the
Trustee or such Securityholder, then and in every
such case, subject to any determination in such
proceeding, the Company, the Trustee and the
Securityholders shall be restored severally and
respectively to their former positions and rights
hereunder, and all rights, remedies and poswers of
the Company, the Trustee and the Securityholders
shall continue as though no such proceedings had
been taken.
b. Section 6.07 of the Indenture entitled "Trustee's
Notice of Defaults," is restated in its entirety to
read as follows:
Section 6.07 Trustee's Notice of Defaults
The Trustee shall, within 90 days after the
occurrence of a default with respect to the Debt
Securities of any series, give to all Holders of
debt Securities of that series, in the manner and
to the extent provided in subsection C of Section
5.04, notice of all defaults with respect to that
series known to the Trustee, unless such defaults
shall have been cured before the giving of such
notice (the term "default" or "defaults" for the
purposes of this Section 6.07 being hereby defined
to be any event or events, as the case may be,
specified in subsections A, B, C, D, E, F, G and H
of Section 6.01, not including periods of grace,
if any, and irrespective of the giving of written
notice; provided, however, that, except in the
case of default in the payment of the principal of
(or premium, if any, on ) or interest on any of
the Debt Securities of such series or in the
payment or satisfaction of any sinking fund
obligation with respect to such series, the
Trustee shall be protected in withholding such
notice if and so long as the board of directors,
the executive committee, or a trust committee of
directors and/or responsible officers of the
Trustee in good faith determines that the
withholding of such notice is in the interests of
the Holders of the Debt Securities of such series.
Section 1.04. Amendments and Modifications to Article
Twelve
a. Section 12.01 of the Indenture, entitled "Satisfaction and
Discharge of Indenture," is restated in its entirety to read as
follows:
Section 12.01 Satisfaction and Discharge of Indenture.
When (i) the Company shall deliver to the
Trustee for cancellation all Debt Securities of a
series theretofore authenticated (other than any
Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section
2.07) and not theretofore canceled; or (ii) all
Debt Securities of such series not theretofore
canceled or delivered to the Trustee for
cancellation shall have become due and payable, or
are by their terms to become due and payable
within one year or are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of
redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at
maturity or upon redemption all of the Debt
Securities of such series (other than any Debt
Securities of such series which shall have been
mutilated, destroyed, lost or stolen and which
shall have been replaced or paid as provided in
Section 2.07) not theretofore canceled or
delivered to the Trustee for cancellation,
including principal and premiums if any, and
interest, if any, due or to become due to such
date of maturity or redemption date, as the case
may be, but excluding, however, the amount of any
money for the payment of the principal of and
premium, if any, or interest, if any, on the Debt
Securities of such series (a) theretofore
deposited with the Trustee with respect to Debt
Securities of such series and repaid by the
Trustee to the Company in accordance with the
provisions of Section 12.04 or (b) paid with
respect to Debt Securities of such series to any
State or to the District of Columbia pursuant to
its unclaimed property or similar laws, and if in
either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the
Company then this Indenture shall cease to be of
further effect with respect to the Debt Securities
of such series except as to (1) the rights of
Holders of Debt Securities of such series to
receive solely from funds deposited by the Company
with the Trustee, in trust as described above in
this Section 12.01, payment of the principal of,
premium, if any, and the interest, if any on such
Debt Securities when such payments are due; (2)
the Company's rights and obligations with respect
to such Debt Securities under Sections 2.05, 2.07,
3.01, 3.02, 3.04, 4.02, 12.03, 12.04 and 12.05;
and (3) the rights, powers, duties and immunities
of the Trustee hereunder, and the Trustee, on
demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with and at the cost
and expense of the Company, shall execute such
instruments as may be requested by the Company
acknowledging satisfaction of and discharging this
Indenture with respect to such series of Debt
Securities. Notwithstanding the satisfaction and
discharge of this Indenture with respect to any
series of Debt Securities the obligations of the
Company to the Trustee under Section 7.06 shall
survive.
Section 1.05. Mutatis Mutandis Effect. The Indenture is
hereby amended mutatis mutandis to reflect the addition or
amendment of the definitional terms incorporated into the
Indenture pursuant to Section 1.01 hereof.
ARTICLE 2
New Series
Section 2.01. 7.55% Notes due 2007.
a. In accordance with Sections 2.01 and 2.02 of the Indenture,
there is created hereby a series of Debt Securities under the
Indenture with the following terms:
A. The title of the series of Debt Securities will be 7.55%
Notes due 2007 (the "Notes due 2007"). Such series will be
limited to an aggregate principal amount of $150,000,000 (except
for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other such series pursuant to Sections 2.05, 2.06, 2.07, 3.04 or
10.04 of the Indenture) and will mature on April 15, 2007.
B. The Notes due 2007 will bear interest at the rate of 7.55%
per annum from April 21, 1997, payable semiannually in arrears
on April 15 and October 15 of each year, commencing October 15,
1997, to the persons in whose names the Notes due 2007 are
registered at the close of business on the preceding April 1 or
October 1, each a record date, as the case may be. Interest will
be computed based on a 360-day year consisting of twelve 30-day
months. Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered holder on
such record date and may be paid to the person in whose name this
Note is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by
the Trustee, notice of which shall be given to the holders of the
Notes in accordance with Section 14.05.
C. The Notes due 2007 will not be subject to any sinking fund.
D. The Notes due 2007 will be redeemable as a whole or in part,
at the option of the Company at any time, at a Redemption Price
equal to the greater of (i) 100% of the principal amount of each
such Note to be redeemed and (ii) the sum of the present values
of the Remaining Scheduled Payments (as hereinafter defined)
thereon discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus five basis points, plus, in either case,
accrued interest on the principal amount being redeemed to the
date of the redemption.
E. The Notes due 2007 initially will be represented by one or
more Global Securities deposited with the Depository Trust
Company in substantially the form attached as Exhibit 1. If
certificated Notes due 2007 are issued, definitive certificates
substantially in the form attached as Exhibit 2 shall be used.
F. Payment of the principal of and interest on the Notes due
2007 will be made at the office or agency of the Trustee
maintained for that purpose in New York, New York, in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of, or by
wire transfer to an account designated by, the person entitled
thereto as such address shall appear on the security register;
provided, further, that only holders of $1,000,000 or more in
aggregate principal amount of the Notes who have provided
appropriate written wire transfer instructions for the relevant
record date may receive wire transfer payments.
G. The Notes due 2007 shall be governed by the provisions of
the Indenture, as supplemented hereby.
Section 2.02. 8.05% Notes due 2027
a. In accordance with Sections 2.01 and 2.02 of the Indenture,
there is also created a series of Debt Securities under the
Indenture with the following terms:
A. The title of the series of Debt Securities will be 8.05%
Notes due 2027 (the "Notes due 2027"). Such series will be
limited to an aggregate principal amount of $150,000,000 (except
for Debt Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other such
series pursuant to Sections 2.05, 2.06, 2.07, 3.04 or 10.04 of
the Indenture) and will mature on April 15, 2027.
B. The Notes due 2027 will bear interest at the rate of 8.05%
per annum from April 21, 1997, payable semiannually in arrears on
April 15 and October 15 of each year, commencing October 15,
1997, to the persons in whose names the Notes due 2027 are
registered at the close of business on the preceding April 1 or
October 1, each a record date, as the case may be. Interest will
be computed based on a 360-day year consisting of twelve 30-day
months. Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered holder on
such record date and may be paid to the person in whose name this
Note is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by
the Trustee, notice of which shall be given to the holders of the
Notes in accordance with Section 14.05.
C. The Notes due 2027 will not be subject to any sinking fund.
D. The Notes due 2027 will be redeemable as a whole or in part,
at the option of the Company at any time, at a Redemption Price
equal to the greater of (i) 100% of the principal amount of each
such Note to be redeemed, and (ii) the sum of the present values
of the Remaining Scheduled Payments (as hereinafter defined)
thereon discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 20 basis points, plus, in either case,
accrued interest on the principal amount being redeemed to the
date of the redemption.
E. The Notes due 2027 initially will be represented by one or
more Global Securities deposited with the Depository Trust
Company in substantially the form attached as Exhibit 1. If
certificated Notes due 2027 are issued, definitive certificates
substantially in the form attached as Exhibit 2 shall be used.
F. Payment of the principal of and interest on the Notes due
2027 will be made at the office or agency of the Trustee
maintained for that purpose in New York, New York, in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of, or by
wire transfer to an account designated by, the person entitled
thereto as such address shall appear on the security register;
provided, further, that only holders of $1,000,000 or more in
aggregate principal amount of the Notes who have provided
appropriate written wire transfer instructions for the relevant
record date may receive wire transfer payments.
G. The Notes due 2027 shall be governed by the provisions of
the Indenture, as supplemented hereby.
Section 2.03. Definitions. For purposes of this
Section 2, the following terms have the meanings ascribed to them
as follows:
a. "Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
b. "Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of such Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Notes. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
c. "Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such business day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date,
(B) if the Trustee is able to obtain only one Reference Treasury
Dealer Quotation from the Reference Treasury Dealers, such
Quotation, or (C) if the Trustee is not able to obtain any
Reference Treasury Dealer Quotations from the Reference Treasury
Dealers, the average of Reference Treasury Dealer Quotations
obtained from two other Primary Treasury Dealers designated by
the Company as Reference Treasury Dealers for the purpose of
determining such Comparable Treasury Price. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding
such redemption date.
d. "Reference Treasury Dealer" means each of Salomon Brothers
Inc and NationsBanc Capital Markets, Inc. and their respective
successors; provided, however, that if either of the foregoing
shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor any other Primary Treasury Dealer.
e. "Remaining Scheduled Payments" means, with respect to any
such Note, the remaining scheduled payments of the principal
thereof to be redeemed and interest thereon that would be due
after the related redemption date but for such redemption;
provided, however, that, if such redemption date is not an
interest payment date with respect to such Note, the amount of
the next succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to such
redemption date.
ARTICLE 3
Miscellaneous
Section 3.01. Effect of This First Supplemental Indenture.
This First Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and
shall be construed in connection with and as part of, the
Indenture for any and all purposes, including, but not limited
to, discharge of the Indenture as provided in Article EightTwelve
of the Indenture. Except as specifically modified herein, the
Indenture and the Debt Securities are in all respects ratified
and confirmed and shall remain in full force and effect in
accordance with their terms. Notwithstanding anything to the
contrary above, Debt Securities outstanding as of April 21, 1997
continue to be governed by the provisions of the Indenture dated
as of August 15, 1991.
Section 3.02. Trustee. Except as otherwise expressly
provided herein, no duties, responsibilities or liabilities are
assumed, or shall be construed to be assumed, by the Trustee by
reason of this First Supplemental Indenture. This First
Supplemental Indenture is executed and accepted by the Trustee
subject to all the terms and conditions set forth in the
Indenture with the same force and effect as if those terms and
conditions were repeated at length herein and made applicable to
the Trustee with respect hereto. The Trustee assumes no
responsibility for the recitals contained herein, which shall be
taken as statements of the Company, and makes no representation
as to the validity or sufficiency of this First Supplemental
Indenture.
Section 3.03. Governing Law. The laws of the State of New
York shall govern this First Supplemental Indenture without
regard to principles of conflicts of law. The Trustee and the
Company agree 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 First Supplemental Indenture.
Section 3.04. Counterparts. The parties may sign any
number of copies of this First Supplemental Indenture. Each
signed copy shall be an original, but all of such executed copies
together shall represent the same agreement.
Section 3.05. Severability. In case one or more of the
provisions in this First Supplemental Indenture shall be held
invalid, illegal or unenforceable, in any respect for any reason,
the validity, illegality 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 3.06. Effective Date of this First Supplemental
Indenture. This First Supplemental Indenture and the Amendments
to Sections 1.01, 4.10, 4.11, 4.12, 6.01, 6.037 and 12.01 shall
be effective pursuant to Section 10.01 of the Indenture
immediately upon execution by the Company and delivery to and
execution by the Trustee of this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, all as of the
day and year first written above.
FOOD LION, INC.
Attest:
Laura Kendall
Name: Laura Kendall
Title:Vice President of Finance
By:Lester Nail
Assistant Secretary
Dated:
[SEAL] [CORPORATE SEAL]
THE BANK OF NEW YORK,
as Trustee
Attest:
By: Vivian Deorges
Name: Vivian Deorges
Title: Assistant Vice President
By:_______________________________
Dated:
[CORPORATE SEAL]
EXHIBIT 1
FORM OF GLOBAL NOTE
FOOD LION, INC.
_____% NOTES DUE ______
NO. *1* $150,000,000
CUSIP NO.
__________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO FOOD LION, INC. 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.
This Note is a Global Note within the meaning of the
Indenture hereinafter referred to.
Transfer of the Note shall be limited to transfers in whole,
and not in part, to nominees of the DTC or to a successor thereof
or such successor's nominee and transfers of interests in this
Note shall be limited to transfers made in accordance with
restrictions set forth in the Indenture, dated as of August 15,
1991, as supplemented as of April 21, 1997 and thereafter,
between Food Lion, Inc. and the Trustee named therein, pursuant
to which this Note was issued.
FOOD LION, Inc., a North Carolina corporation (the
"Company"), for value received, hereby promises to pay to CEDE &
CO., or its registered assigns, the principal sum of One Hundred
Fifty Million Dollars ($150,000,000) on April 15, _____. The
Notes will bear interest at the rate of _____% per annum from
April 21, 1997, payable semiannually in arrears on April 15 and
October 15 of each year, commencing October 15, 1997, to the
persons in whose name the Notes are registered at the close of
business on the preceding April 1 or October 1, each a record
date, as the case may be. Any interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the
registered holder on such record date and may be paid to the
person in whose name this Note is registered at the close of
business on a special record date for the payment of such
defaulted interest to be fixed by the Trustee, notice of which
shall be given to the holders of the Notes in accordance with the
Indenture. Interest will be computed based on a 360-day year
consisting of twelve 30-day months. Payment of the principal of
and interest on this Note will be made at the office or agency of
the Trustee maintained for that purpose in New York, New York, in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the address of, or
by wire transfer to an account designated by, the person entitled
thereto as such address shall appear on the security register;
provided, further, that only holders of $1,000,000 or more in
aggregate principal amount of the Notes who have provided
appropriate written wire transfer instructions for the relevant
record date may receive wire transfer payments.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by manual signature by the Trustee referred to on the
reverse hereof, this Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory of any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal by the manual or
facsimile signatures of its officers thereunto duly authorized.
Dated: FOOD LION, INC.
Attest: By ___________________________
_____________________________
______________________________
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
herein provided for in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK, as Trustee.
By............................................
Authorized Officer
FOOD LION, INC.
ATTACHMENT
______% NOTES DUE _______
This Note is one of a duly authorized issue of unsecured
debt securities of the Company (herein called the "Debt
Securities") of the series hereinafter specified, all issued and
to be issued under an Indenture, dated as of August 15, 1991 and
supplemented as of April 21, 1997 and thereafter (herein called
the "Indenture") between the Company and The Bank of New York, as
Trustee (herein called the "Trustee"), to which Indenture,
reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the
Debt Securities, and of the terms upon which the Debt Securities
are, and are to be, authenticated and delivered. The Debt
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as the _____%
Notes due _____ of the Company, limited in aggregate principal
amount to $150,000,000 (herein called the "Notes").
As provided in the Indenture and subject to the limitations
set forth therein, a new Note or Notes of this series of
authorized denominations, for a like aggregate principal amount,
will be issued in exchange herefor.
The Company, the Trustee and any agent thereof may treat the
person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and
neither the Company or the Trustee nor such agent shall be
affected by notice to the contrary.
No reference herein to the Indenture and no provision of
this Note shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal and
interest on this Note at the time and places and at the rate and
in the coin and currency herein prescribed.
The Notes will not be subject to any sinking fund. The
Notes will be redeemable as a whole or in part, at the option of
the Company at any time, at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the Notes to be
redeemed and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Treasury Rate plus ____ basis points plus, in
either case, accrued interest on the principal amount being
redeemed to the date of redemption. Notice of any redemption
will be mailed at least 30 days, but not more than 60 days,
before the redemption date to each holder of any Notes to be
redeemed, all as provided in the Indenture. Unless the Company
defaults in payment of the Redemption Price on and after the
redemption date, interest will cease to accrue after the
redemption date for such Notes or portions thereof called for
redemption.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of such Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Notes. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such business day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date,
(B) if the Trustee is able to obtain only one Reference Treasury
Dealer Quotation from the Reference Treasury Dealers, such
Quotation, or (C) if the Trustee is not able to obtain any
Reference Treasury Dealer Quotations from the Reference Treasury
Dealers, the average of Reference Treasury Dealer Quotations
obtained from two other Primary Treasury Dealers designated by
the Company as Reference Treasury Dealers for the purpose of
determining such Comparable Treasury Price. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding
such redemption date.
"Reference Treasury Dealer" means each of Salomon Brothers
Inc and NationsBanc Capital Markets, Inc. and their respective
successors; provided, however, that if either of the foregoing
shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor any other Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to any
such Note, the remaining scheduled payments of the principal
thereof to be redeemed and interest thereon that would be due
after the related redemption date but for such redemption;
provided, however, that, if such redemption date is not an
interest payment date with respect to such Note, the amount of
the next succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to such
redemption date.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Debt Securities under the Indenture at any time by
the Company with the consent of the Holders of more than 50% in
aggregate principal amount of the Debt Securities of all series
at the time Outstanding which are affected by the amendment or
modification (voting as a class) and also permits the Company and
the Trustee, in certain circumstances, to amend the Indenture
without notice to, or the consent of, the Holders of any of the
Debt Securities. Any such consent by the Holder of this Note
shall be conclusive and binding upon such holder and upon all
future Holders of this Note and of any Notes issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Notes which are defined in the
Indenture, shall have the meanings assigned to them therein.
ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer This Note)
FOR VALUE RECEIVED ___________________________________
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFICATION NUMBER OF TRANSFEREE
_________________________________________________________________
(Please print name and address, including zip code, of
transferee)
this Note, together with all right, title and interest herein and
does hereby irrevocably constitute and appoint_________________
Attorney to transfer this on the Note Register, with full power
of substitution.
Dated: _______________________ _________________________
Signature
Signature Guaranteed:
Commercial Bank or Trust
Company of Member Firm of
the New York Stock
Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must
correspond to the Name as written upon the face of this Note in
every particular, without alterations or any change whatsoever.
EXHIBIT 2
FORM OF DEFINITIVE NOTE
FOOD LION, INC.
______% NOTES DUE ______
NO.*1* $150,000,000
CUSIP NO.
__________
This Note is issued pursuant to the Indenture, dated as of
August 15, 1991, as supplemented as of April 21, 1997 and
thereafter, between Food Lion, Inc. and the Trustee named
therein.
FOOD LION, Inc., a North Carolina corporation (the
"Company"), for value received, hereby promises to pay to
__________________, or its registered assigns, the principal sum
__________________________ Dollars ($_______________) on
April 15, ______. The Notes will bear interest at the rate of
______% per annum from April 21, 1997, payable semiannually in
arrears on April 15 and October 15 of each year, commencing
October 15, 1997, to the persons in whose name the Notes are
registered at the close of business on the preceding April 1 or
October 1, each a record date, as the case may be. Any interest
not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered holder on such record date and
may be paid to the person on whose name this Note is registered
at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Trustee, notice of
which shall be given to the holders of the Notes in accordance
with the Indenture. Interest will be computed based on a 360-day
year consisting of twelve 30-day months. Payment of the
principal of and interest on this Note will be made at the office
or agency of the Trustee maintained for that purpose in New York,
New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed
to the address of, or by wire transfer to an account designated
by, the person entitled thereto as such address shall appear on
the security register; provided, further, that only holders of
$1,000,000 or more in aggregate principal amount of the Notes who
have provided appropriate written wire transfer instructions for
the relevant record date may receive wire transfer payments.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by manual signature by the Trustee referred to on the
reverse hereof, this Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory of any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed by the manual or facsimile signatures of its
officers thereunto duly authorized.
Dated: FOOD LION, INC.
Attest: By ___________________________
_____________________________
______________________________
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
herein provided for in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK, as Trustee.
By............................................
Authorized Officer
FOOD LION,INC.
ATTACHMENT
_____% NOTES DUE ________
This Note is one of a duly authorized issue of unsecured
debt securities of the Company (herein called the "Debt
Securities") of the series hereinafter specified, all issued and
to be issued under an Indenture, dated as of August 15, 1991 and
supplemented as of April 21, 1997 and thereafter (herein called
the "Indenture") between the Company and The Bank of New York, as
Trustee (herein called the "Trustee"), to which Indenture,
reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the
Debt Securities, and of the terms upon which the Debt Securities
are, and are to be, authenticated and delivered. The Debt
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as the ______%
Notes due ______ of the Company, limited in aggregate principal
amount to $150,000,000 (herein called the "Notes").
As provided in the Indenture and subject to the limitations
set forth therein, a new Note or Notes of this series of
authorized denominations, for a like aggregate principal amount,
will be issued in exchange herefor.
The Company, the Trustee and any agent thereof may treat the
person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and
neither the Company or the Trustee nor such agent shall be
affected by notice to the contrary.
No reference herein to the Indenture and no provision of
this Note shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal and
interest on this Note at the time and places and at the rate and
in the coin and currency herein prescribed.
The Notes will not be subject to any sinking fund. The
Notes will be redeemable as a whole or in part, at the option of
the Company at any time, at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the Notes to be
redeemed and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Treasury Rate plus ____ basis points plus, in
either case, accrued interest on the principal amount being
redeemed to the date of redemption. Notice of any redemption
will be mailed at least 30 days, but not more than 60 days,
before the redemption date to each holder of any Notes to be
redeemed, all as provided in the Indenture. Unless the Company
defaults in payment of the Redemption Price on and after the
redemption date, interest will cease to accrue after the
redemption date for such Notes or portions thereof called for
redemption.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of such Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such Notes. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such business day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date,
(B) if the Trustee is able to obtain only one Reference Treasury
Dealer Quotation from the Reference Treasury Dealers, such
Quotation, or (C) if the Trustee is not able to obtain any
Reference Treasury Dealer Quotations from the Reference Treasury
Dealers, the average of Reference Treasury Dealer Quotations
obtained from two other Primary Treasury Dealers designated by
the Company as Reference Treasury Dealers for the purpose of
determining such Comparable Treasury Price. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding
such redemption date.
"Reference Treasury Dealer" means each of Salomon Brothers
Inc and NationsBanc Capital Markets, Inc. and their respective
successors; provided, however, that if either of the foregoing
shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor any other Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to any
such Note, the remaining scheduled payments of the principal
thereof to be redeemed and interest thereon that would be due
after the related redemption date but for such redemption;
provided, however, that, if such redemption date is not an
interest payment date with respect to such Note, the amount of
the next succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to such
redemption date.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Debt Securities under the Indenture at any time by
the Company with the consent of the Holders of more than 50% in
aggregate principal amount of the Debt Securities of all series
at the time Outstanding which are affected by the amendment or
modification (voting as a class) and also permits the Company and
the Trustee, in certain circumstances, to amend the Indenture
without notice to, or the consent of, the Holders of any of the
Debt Securities. Any such consent by the Holder of this Note
shall be conclusive and binding upon such holder and upon all
future Holders of this Note and of any Notes issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in the Notes which are defined in the
Indenture, shall have the meanings assigned to them therein.
ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer This Note)
FOR VALUE RECEIVED ___________________________________
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFICATION NUMBER OF TRANSFEREE
_________________________________________________________________
(Please print name and address, including zip code, of
transferee)
this Note, together with all right, title and interest herein and
does hereby irrevocably constitute and appoint_________________
Attorney to transfer this on the Note Register, with full power
of substitution.
Dated: _______________________ _________________________
Signature
Signature Guaranteed:
Commercial Bank or Trust
Company of Member Firm of
the New York Stock
Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must
correspond to the Name as written upon the face of this Note in
every particular, without alterations or any change whatsoever.