INDENTURE, dated as of December 29, 1994, between Kash n' Karry Food
Stores, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 6422 Harney Road, Tampa, Florida 33610, telephone number (813)
621-0200, telecopier number (813) 626-9550, and Shawmut Bank Connecticut,
N.A., as Trustee (herein called the "Trustee").
RECITALS
On November 9, 1994, the Company filed for protection under Chapter 11
of Title 11 of the United States Code in the United States Bankruptcy Court
for the District of Delaware. On December 12, 1994, the United States
Bankruptcy Court for the District of Delaware entered an order confirming
the Plan of Reorganization, dated as of December 12, 1994, of the Company
filed in the United States Bankruptcy Court for the District of Delaware in
respect of Case No. 94-1082 (HSB) (the "Plan"), which provides for the
issuance of the Notes (as hereinafter defined).
The Company has duly authorized the creation of an issue of 11.5%
Senior Fixed Rate Notes due 2003 (herein called the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company as duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company,
the valid obligations of the Company, and to make this Indenture a valid
agreement of the Company, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, the singular includes
the plural and the plural includes the
singular;
(2) all other terms used herein that are-
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Acceleration Notice" has the meaning specified in Section 502.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Subsidiary of the
Company or assumed in connection with the acquisition of assets
from such Person other than Indebtedness incurred in connection
with, or in contemplation of, (i) such Person becoming a Subsidiary
of the Company or (ii) such acquisition of assets.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
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 "controlling" and "controlled" have meanings correlative to the
foregoing.
"Asset Sale" means any conveyance, transfer or lease to a
Person other than the Company or any Subsidiary thereof, directly
or indirectly, in any consecutive 12-month period, in one or a
series of related transactions, of (i) any capital stock of any
Subsidiary of the Company; (ii) all or substantially all of the
properties and assets of any division or line of business of the
Company and its Subsidiaries taken as a whole; or (iii) any other
properties and assets of the Company or any Subsidiary thereof,
other than in the ordinary course of business, the gross proceeds
of which accounted for 15% or more of the book value of the total
assets of the Company and its Subsidiaries on a consolidated basis
as set forth in the most recent set of financial statements of the
Company supplied pursuant to Section 704 preceding the date as of
which such determination is made. For the purposes of this
definition, the term "Asset Sale" shall not include any
consolidation, merger, conveyance, transfer or lease of properties
and assets of the Company substantially as an entirety that is
permitted by Article Eight.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate the Notes.
"Bank Credit Agreement" means (i) until clause (ii) below
shall become applicable in accordance with its terms, the Credit
Agreement dated as of December 29, 1994 among the Company, the
financial institutions from time to time parties thereto as Banks,
and The CIT Group/Business Credit, Inc., as Administrative Agent,
and Bank of America National Trust and Savings Association, as Co-
Agent for such Banks, as such Credit Agreement may from time to
time be amended, renewed, supplemented or otherwise modified in
accordance with the terms thereof, or (ii) after the agent under
the Bank Credit Agreement or under any successor agreement to such
agreement shall have acknowledged, in writing, that all principal,
interest and commitment or similar fees owing under such agreement
have been paid in full, any successor thereto or replacement
thereof (as designated by a duly adopted Board Resolution), as each
such successor or replacement may from time to time be amended,
renewed, supplemented or otherwise modified in accordance with the
terms thereof.
"Bank Credit Agreement Indebtedness" means all
indebtedness at any time outstanding or arising under or with
respect to the Bank Credit Agreement, including (without
limitation) Bank Loans and Letter of Credit Liability.
"Bank Loans" means borrowings under the Bank Credit Agreement.
"Bankruptcy Law" means Title 11, United States Code, or
any similar Federal or state law for the relief of debtors.
"Banks" means the financial institutions and Persons,
whether or not they are banks, which are or from time to time
become holders of Bank Credit Agreement Indebtedness.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the
Trustee.
"Bondholder Committee" means the unofficial committee of
holders of the Old Notes, which committee participated in the
negotiation of the terms of the Plan.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institu-
tions in the City of New York or the city in which the Corporate
Trust Office is located are authorized or obligated by law or
executive order to close.
"Capitalized Lease Obligation" means any obligation to
pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal property that is
required to be classified and accounted for as a capital lease
obligation under GAAP, and, for the purposes hereof, the amount of
such obligation at any date shall be the capitalized amount thereof
at such date, determined in accordance with GAAP.
"Cash Equivalents" means money, checks, demand deposit
accounts and other instruments or investments of equivalent
liquidity and safety.
"Change of Control" has the meaning specified in Sec-
tion 1109.
"Change of Control Notice" has the meaning specified in
Section 1109.
"Change of Control Purchase Date" has the meaning
specified in Section 1109.
"Change of Control Purchase Notice" has the meaning
specified in Section 1109.
"Change of Control Purchase Price" has the meaning
specified in Section 1109.
"Commission" means the Securities and Exchange Commis-
sion, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman
of the Board, its President or a Vice President, and by its
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Interest Expense" of any Person means, for
any period, the sum (without duplication) of the aggregate of the
interest expense of such Person and its consolidated Subsidiaries
for such period, on a consolidated basis, as determined in
accordance with GAAP, including but not limited to the interest
portion of Capitalized Lease Obligations and amortization of
original issue discount but excluding amortization of debt issuance
cost.
"Consolidated Net Income" of any Person means, for any
period, the consolidated net income of such Person and its
consolidated Subsidiaries for such period, as determined in
accordance with GAAP, adjusted by excluding (a) any gain or loss
realized upon the termination of any employee pension plan, (b) net
extraordinary gains or net extraordinary losses, as the case may
be, and (c) net gains or losses in respect of dispositions of
assets other than in the ordinary course of business.
"Consolidated Net Loss" of any Person means, for any
period, the consolidated net loss of such Person and its
consolidated Subsidiaries for such period, as determined in
accordance with GAAP, adjusted by excluding (a) any gain or loss
realized upon the termination of any employee pension plan, (b) net
extraordinary gains or net extraordinary losses, as the case may
be, and (c) net gains or losses in respect of dispositions of
assets other than in the ordinary course of business.
"Consolidated Net Worth" of any Person means the
consolidated stockholders' equity of such Person and its consoli-
dated Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" of any Person means, for
any period, the aggregate depreciation, amortization and other non-
cash charges of such Person and its Subsidiaries for such period,
as determined in accordance with GAAP.
"Consolidated Tax Expense" of any Person means, for any
period, the aggregate of the tax expense of such Person and its
consolidated Subsidiaries for such period, as determined in
accordance with GAAP.
"Corporate Trust Office" means the principal office or
offices of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which,
as of the date of this Indenture, is located at 777 Main Street,
Hartford, Connecticut 06115.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Cumulative Net Available Cash" of any Person means (1)
the sum (without duplication) of (i) 50% of Consolidated Net Income
of such Person accrued during the Reference Period (less any
previous Restricted Payments and 100% of any Consolidated Net Loss
of such Person) plus (ii) all Consolidated Non-cash Charges
deducted in computing Consolidated Net Income (or Consolidated Net
Loss, as the case may be) of such Person during the Reference
Period plus (iii) the aggregate net proceeds (other than with
respect to sales to Subsidiaries of such Persons), including cash
and the fair market value of property other than cash, received by
such Person during the Reference Period from the issuance of
capital stock (other than redeemable stock and other than stock
issued by the Company pursuant to the Plan) or debt securities
(other than the Company's 14% Subordinated Debentures due February
1, 2001) that have been converted into capital stock (other than
redeemable stock) other than amounts used to retire or acquire
capital stock or Subordinated Debt, less (2) the sum (without
duplication) of (i) all capital expenditures (other than with the
Net Cash Proceeds from Asset Sales) for any property made by such
Person and its Subsidiaries during the Reference Period, (ii) the
change (which will be added to the amounts in (i) and (iii) of this
clause (2) if an increase, but subtracted therefrom if a decrease)
in Working Capital at the end of the Reference Period compared to
Working Capital at January 29, 1995 and (iii) the sum (without
duplication) of all payments of principal of Indebtedness of such
Person or any Subsidiary thereof other than the Notes actually made
during the Reference Period, excluding payments under the Revolving
Credit Loans but only to the extent the Banks' revolving loan
commitments under the Bank Credit Agreement shall not have been
reduced on or after the date hereof in connection with such
payments.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator, custodian or similar official under any
Bankruptcy Law.
"Defaulted Interest" has the meaning specified in Section
307.
"Deficiency" has the meaning specified in Section 1013.
"Effective Date" means the date on which the Plan becomes
effective.
"Event of Default" has the meaning specified in Article
Five.
"Excess Proceeds" has the meaning specified in Section
1013.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Fixed Charge Coverage Ratio" of any Person means, for
any period, the ratio of (a) the sum of Consolidated Net Income of
such Person for such period plus Consolidated Interest Expense,
Consolidated Tax Expense and Consolidated Non-cash Charges of such
Person deducted in computing Consolidated Net Income of such Person
for such period, to (b) Consolidated Interest Expense of such
Person for such period; provided, that in making such computation,
the Consolidated Interest Expense of such Person attributable to
interest on any Indebtedness computed on a pro forma basis and
bearing a floating interest rate shall be computed as if the rate
in effect on the date of computation had been the applicable rate
for the entire period.
"GAAP" means generally accepted accounting principles as
in effect in the United States on the date of the relevant
computation, consistently applied.
"Guarantee" has the meaning set forth in Section 1014
hereof.
"Holder" means a Person in whose name a Note is regis-
tered in the Note Register and, when used with respect to any Note
or Notes, means the Person or Persons in whose name such Note is,
or Notes are, registered in the Note Register.
"Incur" means, directly or indirectly, to create, incur,
assume, guarantee or otherwise become liable for any obligation of
any kind whatsoever; "incurrence" has a correlative meaning.
"Indebtedness" means, without duplication (a) any
liability of any Person, to the extent it would appear as a
liability upon a balance sheet of such Person prepared on a
consolidated basis in accordance with GAAP (i) for borrowed money,
(ii) evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any kind
(other than a trade payable or a current liability arising in the
ordinary course of business), or (iii) for the payment of money
relating to a Capitalized Lease Obligation; (b) any liability of
any Person under any reimbursement obligation relating to a letter
of credit; (c) any liability of others described in the preceding
clauses (a) and (b) that the Person has guaranteed or that is
otherwise its legal liability; and (d) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a), (b) and (c),
above.
"Indenture" means this instrument as originally executed
and as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate Protection Obligations" means, with
respect to any Person, any obligation of such Person pursuant to
any arrangement 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 floating or fixed rate of interest
on the same notional amount.
"Investment" means, as applied to any Person, any direct
or indirect purchase or other acquisition by that Person of
Securities, or of a beneficial interest in Securities, of any other
Person, and any direct or indirect loan, advance (other than
deposits with financial institutions available for withdrawal on
demand, prepaid expenses, advances to employees and similar items
made or incurred in the ordinary course of business), or capital
contribution by such Person to any other Person, including all
Indebtedness and accounts owed by that other Person which are not
current assets or did not arise from sales of goods or services to
that person in the ordinary course of business. The amount of any
investment shall be determined in conformity with GAAP.
"Investment Cash Equivalents" means (i) U.S. Government
Obligations maturing within one year after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing within 90
days after the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from
either Standard & Poor's Corporation ("S&P") or Moody's Investors
Service, Inc. ("Moody's") (or, if at any time neither S&P nor
Moody's shall be rating such obligations, then from such other
nationally recognized rating services acceptable to the Trustee)
and not listed in Credit Watch published by S&P; (iii) commercial
paper, other than commercial paper issued by the Company or any of
its Affiliates, maturing no more than 90 days after the date of
creation thereof and, at the time of acquisition, having a rating
of at least A-1 or P-1 from either S&P or Moody's (or, if at any
time neither S&P nor Moody's shall be rating such obligations, then
the highest rating from other nationally recognized rating services
acceptable to the Trustee); (iv) domestic and Eurodollar
certificates of deposit or time deposits or bankers' acceptances
maturing within 90 days after the date of acquisition thereof
issued by any commercial bank (including the Trustee and its
affiliates) organized under the laws of the United States of
America or any state thereof or the District of Columbia having
combined capital and surplus of not less than $500,000,000 and (v)
repurchase agreements and reverse repurchase agreements with any
commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having
combined capital and surplus of not less than $500,000,000 or with
any Bank which is a party to the Bank Credit Agreement relating to
U.S. Government Obligations; provided, that the terms of such
agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory
Policy-Repurchase Agreements of Depository Institutions with
Securities Dealers and Others as adopted by the Comptroller of the
Currency on October 31, 1985.
"Letter of Credit Liability" means the Letter of Credit
Liability as defined in and under the Bank Credit Agreement as
originally executed or any similar letter of credit reimbursement
obligations, whether or not contingent, under the Bank Credit
Agreement.
"Material Subsidiary" means, at any time, any Subsidiary
of the Company that, together with the Subsidiaries of such
Subsidiary, (a) accounted for more than 5% of the consolidated
revenues of the Company and its Subsidiaries for the most recently
completed fiscal year of the Company or (b) was the owner of more
than 5% of the consolidated assets of the Company and its
Subsidiaries at the end of such fiscal year, all as shown on the
consolidated financial statements of the Company and its Sub-
sidiaries for such fiscal year.
"Maturity", when used with respect to any Note, means the
date on which the principal of such Note becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, required
repurchase or otherwise.
"Net Cash Proceeds" means, with respect to any Asset
Sale, the proceeds thereof in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to
the Company or any Subsidiary thereof) net of (i) brokerage
commissions and other reasonable fees and expenses (including fees
and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where
payment of such Indebtedness is required in connection with such
Asset Sale, and (iv) appropriate amounts to be provided by the
Company or any Subsidiary thereof, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any
Subsidiary thereof, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters
and liabilities under any indemnification obligations associated
with such Asset Sale.
"New Notes" means, collectively, the Notes and the Senior
Floating Rate Notes.
"Note Register" and "Note Registrar" have the respective
meanings specified in section 305.
"Notes" has the meaning specified in the second recital
of this Indenture, and includes the Secondary Notes.
"Offer" has the meaning specified in Section 1013.
"Offered Price" has the meaning specified in Section 1013.
"Officers' Certificate" means a certificate which
complies with Section 102 and which is signed by the Chairman of
the Board, the President, a Vice President or the Treasurer, and by
the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Old Notes" means, collectively, the Company's 12 3/8%
Senior Notes due 1999, the Company's Senior Floating Rate Notes due
August 2, 1996 and the Company's 14% Subordinated Debentures due
February 1, 2001.
"Opinion of Counsel" means a written opinion, which
complies with Section 102, of legal counsel, who may be counsel for
the Company, and who shall be reasonably acceptable to the Trustee.
"Original Stockholder" means any member of (x) any group
consisting of members of the Board of Directors or (y) the
Bondholder Committee or any other group of Holders consisting in
whole or in part of members of the Bondholder Committee.
"Outstanding", when used with respect to Notes, means, as
of the date of determination, all Notes theretofore authenticated
and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Notes, or portions thereof, for which payment or redemption
money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes;
provided, that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
provided, further, that if for any reason the Company shall default
in the payment of the Redemption Price and accrued interest, such
Notes will be deemed Outstanding; and
(iii) Notes which have been replaced or paid pursuant to Section
306 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than
any such Notes in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Notes are held by
a bona fide purchaser in whose hands such Notes are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Notes have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company, or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not
the Company or any other obligor upon the Notes or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
pursuant to this Indenture to pay the principal of, premium (if
any) or interest on, any Notes on behalf of the Company, which term
may include the Company.
"Permitted Indebtedness" means:
(a) Indebtedness of the Company or any Subsidiary
thereof (excluding Bank Loans and Letter of Credit Liability),
outstanding at the time of, and after giving effect to, the initial
issuance of the Notes.
(b) Indebtedness of the Company evidenced by the Notes
(including, without limitation, Indebtedness evidenced by
additional Notes issued in accordance with the provisions hereof
(including, without limitation, Secondary Notes)).
(c) Indebtedness of the Company evidenced by the Senior
Floating Rate Notes.
(d) Bank Loans and Letter of Credit Liability, in an
aggregate principal amount at any one time outstanding, not to
exceed the sum of (i) $125,000,000 less the aggregate principal
amount of Bank Loans and Letter of Credit Liability actually paid
on or after the date hereof, but without deduction for payments
under the Revolving Credit Loans or in respect of Letter of Credit
Liability except to the extent the Banks' revolving loan
commitments or commitments to extend or participate in letters of
credit under the Bank Credit Agreement shall have been reduced on
or after the date hereof in connection with such payments, minus
(ii) the aggregate principal amount of commercial paper outstanding
under clause (f) below less such aggregate principal amount that is
supported by letters of credit issued for the account of the
Company under and pursuant to the Bank Credit Agreement.
(e) Indebtedness of the Company either (i) arising out
of sale and leaseback transactions or (ii) bearing a fixed rate of
interest for a term of not less than ten years and secured by
stores and other real property owned by the Company; provided, that
the aggregate principal amount of such Indebtedness at any one time
outstanding shall not exceed the sum of $25,000,000 plus the amount
of such In- debtedness outstanding on the Effective Date.
(f) Indebtedness of the Company evidenced by commercial paper.
(g) Interest Rate Protection Obligations to the extent
that the notional principal amount thereof does not exceed the
aggregate amount of Indebtedness referred to in clauses (c) and (d)
above.
(h) Indebtedness of the Company or any Subsidiary
thereof, the proceeds of which are used to pay Store Opening Costs
in connection with the opening or acquisition of Permitted Stores.
(i) Indebtedness of the Company or any Subsidiary
thereof evidenced by promissory notes representing the Company's or
such Subsidiary's obligations under casualty insurance policies to
reimburse the issuing casualty insurance companies for claims
against the Company or such Subsidiary paid by such insurance
companies.
(j) Indebtedness of the Company or any Subsidiary
thereof in respect of performance or surety bonds provided by the
Company or such Subsidiary in the ordinary course of business.
(k) Indebtedness of the Company or any Subsidiary
thereof for reimbursement of payments made under commercial
documentary letters of credit issued for the account of the Company
or such Subsidiary in the ordinary course of business, having
expiry dates not more than one year after the date of issuance, and
issued for the purpose of financing the purchase of goods.
(l) Indebtedness of the Company constituting obligations
of the Company to redeem shares, or cancel options to purchase
shares, of the Company's capital stock under the terms and
conditions of management equity subscription agreements and
management stock option agreements.
(m) Indebtedness of the Company or any Subsidiary
thereof represented by or in respect of industrial revenue or
development bonds not to exceed an aggregate principal amount at
any one time outstanding of $5,000,000.
(n) Indebtedness of (i) any Subsidiary of the Company to
the Company or any other Subsidiary of the Company or (ii) the
Company to any Subsidiary thereof.
(o) Indebtedness of the Company (which may be Bank
Credit Agreement Indebtedness), in addition to that described in
clauses (a) through (n) above; provided, that the aggregate
principal amount of such Indebtedness at any one time outstanding
shall not exceed the sum of $25,000,000 plus the amount of such
Indebtedness outstanding on the Effective Date.
(p) All renewals, extensions, substitutions,
refinancings or replacements (collectively, "refinancings") of any
Indebtedness described in clauses (a) through (m) and (o) above,
including replacements with creditors other than the Banks (or
successive refinancings) so long as any such refinancing does not
result in an increase of the amount of such Indebtedness and, in
the case of refinancings of Subordinated Debt, such Indebtedness
(i) is Subordinated Debt containing subordination provisions no
less favorable to the Holders than the subordination provisions of
the Indebtedness being refinanced, (ii) does not require principal
repayments or sinking fund payments to be made prior to the Stated
Maturity of any payments of principal of the Notes and (iii)
otherwise conforms to the requirements hereof. For the purpose of
determining at any time the Indebtedness that is permitted to be
incurred pursuant to any of the foregoing clauses (each, the
"specified clause"), there shall be included in each specified
clause: (x) all then outstanding Indebtedness that has been
incurred pursuant to such specified clause and (y) all then
outstanding Indebtedness incurred pursuant to this clause (p) to
refinance Indebtedness incurred pursuant to such specified clause
and all then outstanding subsequent refinancings thereof.
No limitation contained in the foregoing clauses (a)
through (p) shall prohibit the Company from incurring Indebtedness
pursuant to any other such clause.
"Permitted Stores" means (a) during the period from the
date hereof through August 2, 1998, seven stores and (b)
thereafter, an average of no more than four stores per year during
each three-year period ending on the last day of each fiscal year
of the Company, with the first such three-year period ending on
July 29, 2001.
"Person" means any individual, corporation, partnership
joint venture, trust, unincorporated organization or any other
entity, or any government or any agency or political subdivision
thereof.
"Plan" has the meaning specified in the first recital of this
Indenture.
"Predecessor Note" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306
in exchange for a mutilated security or in lieu of a destroyed,
lost or stolen Note shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Note.
"Redemption Date", when used with respect to any Note to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture, including as applicable and without duplication,
any accrued interest due upon such redemption pursuant to the terms
of this Indenture.
"Reference Period" means, with respect to any Restricted
Payment, the period from the Effective Date through the end of the
last full fiscal quarter immediately preceding the date of such
Restricted Payment (taken as one accounting period).
"Regular Record Date" for the interest payable on any
Interest Payment Date means the January 15 or July 15 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Responsible Officer", when used with respect to the
Trustee, means any officer assigned to the Corporate Trust Office
and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because
of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning specified in Section 1010.
"Retirement" has the meaning specified in Section 1010.
"Revolving Credit Loans" means the Revolving Credit Loans
(as defined in the Bank Credit Agreement), or any similar revolving
credit facility or swing line facility under the Bank Credit
Agreement.
"Secondary Notes" has the meaning specified in Section 303.
"Securities" means any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as
"securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase
or acquire any of the foregoing.
"Senior Floating Rate Notes" means the Senior Floating
Rate Notes due 2003, created and issued by the Company pursuant to
the Senior Floating Rates Notes Indenture.
"Senior Floating Rate Notes Indebtedness" means the
Indebtedness of the Company on the Senior Floating Rate Notes.
"Senior Floating Rate Notes Indenture" means the
Indenture, dated as of the Effective Date, as such indenture may
from time to time be amended, renewed, supplemented or otherwise
modified, between the Company and IBJ Schroder Bank & Trust
Company, as Trustee.
"Special Record Date" has the meaning specified in Section 307.
any Note or any installment of interest thereon, means the date
specified in such Note as the fixed date on which the principal
of such Note or such installment of interest is due and payable.
"Store Opening Costs" means the costs and expenses
(including, without limitation, capitalized interest) incurred by
the Company in connection with (i) the opening of a new store,
including the purchase price or lease expense with respect to the
real property on which such store is located and the costs of
furniture, fixtures, equipment and inventory used in connection
with such store, or (ii) the acquisition of the fee or leasehold
interest in the real property on which an existing store is
located, together with the costs of furniture, fixtures, equipment
and inventory used in connection with such acquired store.
"Subordinated Debt" means Indebtedness that ranks junior
or is expressly subordinate in right of payment to the Notes upon
terms substantially in the form of Exhibit A attached hereto,
provided, however, that the definition of "Senior Debt" for the
purposes of such Indebtedness may include Indebtedness other than
the New Notes.
"Subsidiary" of any Person means (i) a corporation a
majority of the Voting Stock of which is at the time owned,
directly or indirectly, by such Person or by one or more other
Subsidiaries, or by such Person and one or more other Subsidiaries
or (ii) any other Person (other than a corporation) in which such
Person, a Subsidiary of such Person or such Person and one or more
Subsidiaries of such Person, directly or indirectly, has the power
to elect or direct the election of at least a majority of the
persons comprising the governing body of such Person.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, until such time as this Indenture is qualified under such
Act, and thereafter means such Act as in force at the date on which
this Indenture is so qualified, in each case except as provided in
Section 905.
"U.S. Government Obligations" means direct noncallable
obligations of, or non-callable obligations guaranteed by, the
United States of America or any agency thereof for the payment of
which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least
a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
"Working Capital" (which may be a positive or negative
amount) means the consolidated current assets (excluding cash and
Cash Equivalents) of the Company less the consolidated current
liabilities of the Company (excluding the current portion of
Indebtedness under the Bank Credit Agreement and of long-term
debt).
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such
applica- tion or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion rendered by or on behalf of
the Company with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certifi- cate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it
is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his or her certificate or opinion
is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be given or taken by holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instru- ment or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive
in favor of the Trustee and the Company, if made in the manner
provided in this Section 104.
(b) The fact and date of the execution by any person of
any such instrument or writing shall be established in any
reasonable manner which the Trustee deems sufficient, which shall
include but not be limited to, notarization of such instrument.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the holder of any Note
shall bind every future Holder of the same Note and the Holder of
every Note issued upon the transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made
upon such Note.
(e) The Company may, but shall not be obligated to, fix
a record date for the purpose of determining the Holders entitled
to sign any instrument evidencing or embodying an Act of Holders.
If a record date is fixed, those Persons who were Holders at such
record date (or their duly appointed agents), and only those
Persons, shall be entitled to sign any such instrument evidencing
or embodying an Act of Holders or to revoke any such instrument
previously signed, whether or not such Persons continue to be
Holders after such record date.
Section 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing and hand delivered, mailed first-class postage
prepaid, sent by telecopier or delivered by recognized overnight
courier to or with the Trustee at its corporate trust office,
located at 777 Main Street, Hartford, Connecticut 06115, Attention:
Corporate Trust Administration, or at any other address previously
furnished in writing to the Holders, the Company or any other
obligor of the Notes by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and hand delivered, mailed
first-class postage prepaid, sent by telecopier or delivered by
recognized overnight courier to the Company, addressed to it at the
address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in
writing to the Trustee by the Company, in any case, Attention:
President.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail,
registered or certified with postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and hand
delivered, mailed first-class postage prepaid, sent by telecopier
or delivered by recognized overnight courier to each Holder
affected by such event, at its address as it appears in the Note
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail as may be required by any provision of
this Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall, under such
circumstances, be deemed to be a sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with the duties imposed by the Trust Indenture Act or another
provision which is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act, the
imposed duties shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded,
as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company and any other obligor of the Notes shall bind its
successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing contained in this Indenture or in the Notes,
expressly or impliedly, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE NOTES 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 CON- FLICTS OF LAWS THEREOF.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Maturity or Stated Maturity of any Note shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of principal of, or premium (if
any) or interest on, the Notes need not be made on such date, but
may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Maturity or
Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Maturity or Stated Maturity, as the
case may be, if such payment is made on the next succeeding
Business Day.
Section 114. Incorporators, Stockholders, Officers and Directors
of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement of this Indenture or any indenture supplemental hereto or
of any Note, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Company or of any successor corporation to the Company, either
directly or through the Company, or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any such successor
corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Notes or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law
or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Notes or implied therefrom are hereby expressly
waived and released as a condition of, and as consideration for,
the execution of this Indenture and the issue of such Notes.
Section 115. Counterparts.
This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement.
ARTICLE TWO
FORMS OF NOTES
Section 201. Forms Generally.
The Notes and the Trustee's certificates of
authentication thereon shall be in substantially the forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution
thereof. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the
face of the Note.
The definitive Notes shall be printed, lithographed or
engraved or produced by any combination of these methods on
engraved steel borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing
such Notes, as evidenced by their execution thereof.
Section 202. Form of Face of Note.
KASH N' KARRY FOOD STORES, INC. 11.5% Senior Fixed Rate
Notes due 2003
No. ____ $__________
Kash n' Karry Food Stores, Inc., a Delaware corporation
(herein called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ,
or registered assigns, the principal sum of
Dollars on February 1, 2003, and to pay interest thereon from
December 29, 1994 or from the most recent Interest Payment Date
to which interest has been paid semi-annually on February 1 and
August 1 in each year,
commencing August 1, 1995, at the rate of 11.5% per annum, until
the principal hereof is paid or made available for payment.
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
The interest so payable on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at
the close of business on the Regular Record Date for such interest,
which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid will forthwith
cease to be payable to the Holder so registered on such Regular
Record Date and may either be paid to the Person in whose name this
Note (or one or more Predecessor Notes) 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 whereof shall
be given to Holders not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said
Indenture.
On or prior to February 1, 1996, the Company may, at its
option and in its sole discretion, in lieu of paying interest in
cash, issue additional Notes (the "Secondary Notes") in an
aggregate principal amount equal to the amount of cash interest due
and payable on any Interest Payment Date, provided that the Company
may not issue Secondary Notes in lieu of paying interest in cash if
an Event of Default, or an event or condition which with notice or
lapse of time or both would become an Event of Default, shall have
occurred and be continuing immediately prior to or as a result of
such issuance of Secondary Notes. In any such case, the Trustee or
any Authenticating Agent (upon Company Order given not less than 5
nor more than 45 Business Days prior to such Interest Payment Date)
shall authenticate for original issue Secondary Notes in an
aggregate principal amount equal to the amount of cash interest due
and payable on such Interest Payment Date. Such Company Order
shall specify the amount of the Notes to be authenticated and the
date on which such Secondary Notes are to be authenticated. Each
issuance of Secondary Notes in lieu of payment of interest in cash
shall be made pro rata with respect to the outstanding Notes;
provided, however, that the Company may at its option pay cash in
lieu of issuing Secondary Notes in any denomination of less than
$100.
Subject to the provisions of the immediately preceding
paragraph, payment of the principal of, premium, if any, and
interest on, and the Change of Control Purchase Price, if any, and
Redemption Price with respect to, this Note will be made at the
office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York or at any other office
or agency maintained by the Company for such purpose, 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 at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Note Register.
Notwithstanding the foregoing, at the option of any Holder of at
least $1,000,000 aggregate principal amount of Notes upon written
notice to the Company at least 30 days prior to the respective
payment date, but subject to the immediately preceding paragraph,
payments of principal, premium, if any, and interest will be made
by wire transfer to an account within the United States maintained
by such Holder with a bank which is a member of the Federal Reserve
System.
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 the Trustee referred to on the reverse hereof, or by
the Authenticating Agent appointed as provided in the Indenture, by
manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
KASH N' KARRY FOOD STORES, INC.
By_________________________________ [SEAL] Attest:
____________________________
Authorized Signatory
Section 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of
the Company designated as its 11.5% Senior Fixed Rate Notes due
2003 (herein called the "Notes"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal
amount to $135,000,000 issued and to be issued under an Indenture,
dated as of December 29, 1994 (herein called the "Indenture"),
between the Company and Shawmut Bank Connecticut, N.A., as Trustee
(herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, and the Holders of the
Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
The Notes are general unsecured obligations of the Company.
If at any time either (a) any person or any persons
acting together (excluding the Original Stockholders) that
constitute a "group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, shall beneficially own
at least 50% of the total voting stock of the Company or (b) any
person or any persons acting together (excluding the Original
Stockholders) that constitute a "group" for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended, shall
succeed in having a sufficient number of its nominees elected to
the Board of Directors of the Company to constitute a majority of
the Board of Directors of the Company (each, a "Change of
Control"), then the Company shall make an offer to repurchase any
or all of the Outstanding Notes at a price, payable in cash, in an
amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the Change of Control Purchase Date
(the "Change of Control Purchase Price") in accordance with the
procedures set forth in the Indenture; provided that such
repurchase shall be conditioned upon receipt by the Company of the
Notes representing at least 50% of the aggregate principal amount
of the Outstanding Notes.
The Notes are subject to redemption upon not less than 30
nor more than 60 days' notice by first-class mail, at any time, as
a whole or in part, at the election of the Company, at 100% of the
principal amount thereof together, in the case of any such
redemption, with accrued and unpaid interest, if any, to the
Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders
of such Notes, or one or more Predecessor Notes, of record at the
close of business on the relevant Regular Record Dates referred to
on the face hereof, all as provided in the Indenture.
In the event of redemption of this Note in part only, a
new Note or Notes for the unredeemed portion hereof, if any, will
be issued in the name of the Holder hereof upon the cancellation
hereof. Notes may be redeemed in part in integral multiples of
$1,000 only. The Notes to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Notes shall
cease to bear interest.
If, at any time prior to maturity hereof, the Company
engages in an Asset Sale which results in Excess Proceeds, then at
the option of the Holder, this Note shall be subject to repurchase
by the Company out of such Excess Proceeds pursuant to the
Indenture.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) 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 Notes under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority
in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the
Indenture and the Notes and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by or
on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation
of the Company or other obligor of the Notes, which is absolute and
unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, place, and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City of New York or at any other
office or agency maintained by the Company for such purpose, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar, duly
executed by the Holder hereof or its attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple
thereof, provided, however, that if the Company elects to pay
interest to the Holder hereof by issuing Secondary Notes and the
amount of such interest is not an integral multiple of $1,000, the
Company may issue to the Holder hereof a Secondary Note in a
denomination of less than $1,000 and in a principal amount equal to
the excess of the amount of such interest over an integral multiple
of $1,000, and provided further that if the aggregate principal
amount of Notes to be issued to any beneficial holder of the
Company's 12 3/8% Senior Notes due 1999 or the Company's Senior
Floating Rate Notes due August 2, 1996 on December 29, 1994,
pursuant to the Plan (whether on account of interest accrued
thereon at the contract rate from February 3, 1994 and February 2,
1994, respectively, through but not including November 9, 1994, or
on account of an election of such holder to receive both Notes and
Senior Floating Rate Notes, or both) is not an integral multiple of
$1,000, the Company may issue to such beneficial holder a Note in a
denomination of less than $1,000 and in a principal amount equal to
the excess of such aggregate principal amount over an integral
multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Notes are exchangeable for a
like aggregate principal amount of Notes of a different authorized
denomination, as requested by a Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Note
for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes,
whether or not any amount due in respect of this Note be overdue,
and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
Certificate of Authentication
This is one of the 11.5% Senior Fixed Rate Notes due 2003
referred to in the within-mentioned Indenture.
Dated: , as Trustee
By_________________________ Authorized Signatory
Section 205. Form of Assignment.
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
-------------------------- : :
-------------------------- (Insert assignee's social security or
tax ID no.) _____________________________________
_____________________________________
_____________________________________ (Print or type assignee's
name, address and zip code)
and irrevocably appoint
_____________________________________
_____________________________________ agent to transfer this Note
on the books of the Company. The agent may substitute another to
act for him or her.
Date:______________ Your Signature:_______________________* (Sign
exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an eligible guarantor
institution which is a member of the Securities Transfer Agents
Medallion Program, the Stock Exchange Medallion Program or the New
York Stock Exchange Medallion Signature Program.
Section 2 Form of Option of Holder to Elect Redemption.
If you wish to elect to have this Note purchased by the
Company pursuant to Section 1013 or Section 1109 of the Indenture,
check the box:
______
$___________
Date:___________________ Signature _________________________ (Sign
exactly as your name appears on the other side of this
Note)
Signature Guarantee: ______________________________________ Member
firm of an eligible guarantor institution which is a member of the
Securities Transfer Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange Medallion
Signature Program
ARTICLE THREE
THE NOTES Section 301. Title and
Terms.
The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is limited (except
as otherwise provided in this Indenture or the Plan) to
$135,000,000, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 304, 305, 306, 906, 1013 or 1108.
The Notes shall be known and designated as the "11.5%
Senior Fixed Rate Notes due 2003" of the Company. Their Stated
Maturity shall be February 1, 2003, and they shall bear interest at
the rate of 11.5% per annum, from the date of issuance or from the
most recent Interest Payment Date to which interest has been paid,
payable semiannually on February 1 and August 1 in each year,
commencing August 1, 1995 until the principal thereof is paid or
made available for payment.
On or prior to February 1, 1996, the Company may, at its
option and in its sole discretion, in lieu of paying interest in
cash, issue additional Notes (the "Secondary Notes") in an
aggregate principal amount equal to the amount of cash interest due
and payable on any Interest Payment Date, provided that the Company
may not issue Secondary Notes in lieu of paying interest in cash if
an Event of Default, or an event or condition which with notice or
lapse of time or both would become an Event of Default, shall have
occurred and be continuing immediately prior to or as a result of
such issuance of Secondary Notes. In any such case, the Trustee or
any Authenticating Agent (upon Company Order given not less than 5
nor more than 45 Business Days prior to such Interest Payment Date)
shall authenticate for original issue Secondary Notes in an
aggregate principal amount equal to the amount of cash interest due
and payable on such Interest Payment Date. Such Company Order
shall specify the amount of the Notes to be authenticated and the
date on which such Secondary Notes are to be authenticated. Each
issuance of Secondary Notes in lieu of payment of interest in cash
shall be made pro rata with respect to the outstanding Notes;
provided, however, that the Company may at its option pay cash in
lieu of issuing Secondary Notes in any denomination of less than
$100.
The principal of, premium, if any, and interest on the
Notes shall be payable at the office or agency of the Company in
the Borough of Manhattan, The City of New York maintained for such
purpose or at any other office or agency maintained by the Company
for such purpose; provided, however, that, at the option of the
Company and subject to the immediately preceding paragraph, payment
of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Note
Register. Notwithstanding the foregoing, at the option of any
Holder of at least $1,000,000 aggregate principal amount of Notes
upon written notice to the Company at least 30 days prior to the
respective payment date, but subject to the immediately preceding
paragraph, payments of principal, premium, if any, and interest
will be made by wire transfer to an account within the United
States maintained by such Holder with a bank which is a member of
the Federal Reserve System.
Section 302. Denominations.
The Notes shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any
integral multiple thereof, provided, however, that if the Company
elects to pay interest to the Holder of a Note by issuing Secondary
Notes and the amount of such interest is not an integral multiple
of $1,000, the Company may issue to such Holder a Secondary Note in
a denomination of less than $1,000 and in a principal amount equal
to the excess of the amount of such interest over an integral
multiple of $1,000, and provided further that if the aggregate
principal amount of Notes to be issued to any beneficial holder of
the Company's 12 3/8% Senior Notes due 1999 or the Company's Senior
Floating Rate Notes due August 2, 1996 on December 29, 1994,
pursuant to the Plan (whether on account of interest accrued
thereon at the contract rate from February 3, 1994 and February 2,
1994, respectively, through but not including November 9, 1994, or
on account of an election of such holder to receive both Notes and
Senior Floating Rate Notes, or both) is not an integral multiple of
$1,000, the Company may issue to such beneficial holder a Note in a
denomination of less than $1,000 and in a principal amount equal to
the excess of such aggregate principal amount over an integral
multiple of $1,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents under its corporate seal, and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these
officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwith- standing that such individuals or
any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such
offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed
by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Notes,
and the Trustee in accordance with such Company Order shall
authenticate and deliver such Notes as provided in this Indenture
and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Note a certificate of authenti- cation
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall
convey, transfer or lease substantially all of its properties and
assets to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company
shall have been merged, or the Person which shall have received a
conveyance, transfer or lease as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer or lease may, from time
to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such
changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for
such exchange and of like principal amount; and the Trustee or
Authenticating Agent, upon Company Request of the successor Person,
shall authenticate and deliver Notes as specified in such request
for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at
the option of the Holders but without expense to them, shall
provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.
Section 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company
may execute, and upon Company Order the Trustee shall authenticate
and make available for delivery, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After
the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary
Notes at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Company shall
execute, and the Trustee shall authenticate and make available for
delivery in exchange therefor, a like principal amount of defini-
tive Notes of authorized denominations. Until so exchanged the
temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes endorsed thereon.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as the
"Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Trustee is hereby
appointed "Note Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. The Note Registrar may
resign as Note Registrar at any time by giving written notice
thereof to the Company.
Upon surrender for registration of transfer of any Note
at an office or agency of the Company designated pursuant to
Section 1002 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for
other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Company
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration of
transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Note Registrar duly executed by, the Holder thereof or its attorney
duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any documentary, stamp
or similar issue or transfer tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 304,
the second sentence of Section 906 or Sections 1013 or 1108 not
involving any transfer.
The Company shall not be required to (i) issue, register
the transfer of or exchange any Note during a period beginning at
the opening of business 15 days before the day of the mailing of a
notice of redemption of Notes selected for redemption and ending at
the close of business on the day of such mailing, or (ii) register
the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portions of any Note being
redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Note, of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss
or theft of any Note and (ii) such security or indemnity as may be
reasonably required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona
fide purchaser, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Note has become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of its reasonable expenses
(including the reasonable fees and ex- penses of the Trustee)
connected therewith and any documentary, stamp or similar issue or
transfer tax or governmental charge imposed in relation to such
issuance.
Every new Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes
duly issued hereunder.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note that is payable on any Interest
Payment Date shall be paid by the Paying Agent to the Person in
whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Note that is payable, but is not
punctually paid, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by
the Notes plus 2%, to the extent lawful (such defaulted interest
and interest thereon herein collectively called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date notwithstanding the fact that such
Holder was a Holder on such Regular Record Date, and such Defaulted
Interest may be paid by the Company, at its election, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of
the proposed payment, and (subject to the provisions of the third
paragraph of Section 301) at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this Clause.
Thereupon the Trustee shall fix a record date (the "Special Record
Date") for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date
of the pro- posed payment and not less than 5 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at its address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may then be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee (acting reasonably).
Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 308. Persons Deemed Owners.
Prior to and at the time of due presentment of a Note for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Note is registered as the owner of such Note for the purpose of
receiving payment of principal of, premium, if any, and (subject to
Section 307) interest on such Note and for all other purposes
whatsoever, whether or not any payment due in respect of such Note
be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Notes surrendered for payment, purchase, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder, which the Company may have
acquired in any manner whatsoever, and all Notes so delivered shall
be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be
returned promptly to the Company upon its written request.
Section 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either
as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction, Discharge of the Indenture and
Defeasance of the Notes.
The Company shall be deemed to have paid and discharged
the entire indebtedness on the Notes and the provisions of this
Indenture shall cease to be of further effect (subject to this
Section 401 and Section 403), if:
(1) The Company irrevocably deposits in trust with the Trustee
for the benefit of the Holders, pursuant to an irrevocable trust
and security agreement in form and substance reasonably
satisfactory to the Trust- ee, cash in United States dollars, U.S.
Government Obligations, or a combination thereof, in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants, which opinion shall be expressed in
a certificate delivered to the Trustee) to pay the principal of,
premium, if any, and each installment of principal, premium (if
any) and interest on the Notes then outstanding at the Maturity or
the Redemption Date, as the case may be, of such principal,
premium, if any, or installment of principal, premium (if any) or
interest in accordance with the terms of the Indenture and of the
Notes;
(2) Such deposits shall not cause the Trustee to have a
"conflicting interest" as defined in and for purposes of the Trust
Indenture Act;
(3) Such deposit will not result in a default under this
Indenture or a breach or violation of, or constitute a default
under, any other material instrument to which either the Company or
any Subsidiary is a party or by which it or its property is bound;
(4) The Company shall have delivered to the Trustee an opinion of
independent counsel reasonably satisfactory to the Trustee based on
the fact that (x) a ruling has been published by the Internal
Revenue Service or (y) since the date hereof, there has been a
change in the applicable Federal income tax law, in either case, to
the effect that, and such opinion shall confirm that, the deposit,
defeasance and discharge will not be deemed, or result in, a
taxable event to the Holders of the Notes and the Holders will be
subject to income tax on the same amounts and in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;
(5) The Company shall not be subject to regulation pursuant to
the provisions of the Investment Company Act of 1940;
(6) The Company shall have delivered to the Trustee an opinion of
independent counsel to the effect that after the passage of 90 days
(or any greater period of time in which any such deposit of trust
funds may remain subject to Bankruptcy Laws insofar as those laws
apply to the Company) following the deposit of the trust funds,
such funds will not be sub- ject to any Bankruptcy Laws affecting
creditors' rights generally;
(7) The Company shall have delivered to the Trustee an opinion of
independent counsel to the effect that the Holders of the Notes
will have a valid, perfected and unavoidable (under applicable
Bankruptcy Laws), subject to the passage of time referred to in
clause (6), first-priority security interest in the trust funds;
(8) No Event of Default, or an event or condition which with
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing (A) on the date of the
deposit of such trust funds with the Trustee or (B) during the
period ending on the 91st day (or one day after such other greater
period of time in which any such deposit of trust funds may remain
subject to bankruptcy or insolvency laws) after such date; and
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (who may be outside counsel
to the Company), each in form and substance satisfactory to the
Trustee, each stating that all conditions precedent specified
herein relating to the satisfaction and discharge contemplated by
this Section 401 have been complied with.
In the event all or any portion of the Notes are to be
redeemed through such irrevocable trust, the Company must make
arrangements satisfactory to the Trustee, at the time of such
deposit, for the giving of the notice of such redemption or
redemptions by the Trustee in the name and at the expense of the
Company.
In the event that the Company takes the necessary action
to comply with the provisions described in this Section 401 and the
Notes are declared due and payable because of the occurrence of an
Event of Default, the Company will remain liable for all amounts
due on the Notes at the time of acceleration resulting from such
Event of Default in excess of the amount of money and U.S.
Government Obligations deposited with the Trustee pursuant to this
Section 401 at the time of such acceleration.
Section 402. Termination of Obligations upon Cancellation of the
Notes.
In addition to the Company's rights under Section 401,
the Company may terminate all of its obligations under this
Indenture (subject to Section 403) when:
(1) all Notes theretofore authenticated and delivered (other than
Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306) have been delivered to
the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (who may be outside counsel
to the Company), each in form and substance satisfactory to the
Trustee, each stating that all conditions precedent specified
herein relating to the satisfaction and discharge of this Indenture
have been complied with.
Section 403. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this
Indenture and of the Notes referred to in Sections 401 and 402, the
respective obligations of the Company and the Trustee under
Sections 303, 305, 306, 307, 405, 406, 407, 408, 607, 609, 610,
701, 1001, 1002, 1003 and 1101 shall survive until the Notes are no
longer outstanding, and thereafter the obligations of the Company
and the Trustee under Sections 305, 405, 406, 407, 408 and 607
shall survive. Nothing contained in this Article Four shall
abrogate any of the obligations or duties of the Trustee under this
Indenture.
Section 404. Acknowledgement of Discharge by Trustee.
After (i) the conditions of Sections 401 or 402 have been
satisfied, (ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent referred to in
Sections 401 or 402, as applicable, relating to the satisfaction
and discharge of this Indenture have been complied with, the
Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under this Indenture except for those
surviving obligations specified in Section 403.
Section 405. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment
to the persons entitled thereto (as determined by the Trustee),
either directly or through any Paying Agent as the Trustee may
determine, of the principal, premium, if any, and interest for
whose payment such money has been deposited with the Trustee.
Section 406. Repayment to the Company.
Upon termination of the trust established pursuant to
Sections 401 or 402, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money or U.S.
Government Obligations held by them.
Section 407. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Sections
401 or 402 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, the
Company's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to Sections 401 or 402 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government
obligations in accordance with Sections 401 or 402; provided,
however, that if the Company has made any payment of principal of,
premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government obligations held by the Trustee
or Paying Agent.
Section 408. Indemnity.
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 Section 401 or
the principal or interest received in respect of such obligations,
and shall pay and indemnify the Holders against any tax, fee or
charge that would not have been imposed or assessed but for the
deposit of cash or U.S. Government Obligations pursuant to Section
401.
ARTICLE FIVE REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein, means any one
of the following events (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 or governmental body):
(1) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of any such default for a
period of 30 days; or
(2) default in the payment of the principal of, or premium, if
any, on any Note at its Maturity; or
(3) default in the performance of, or breach of, any covenant,
agreement or warranty of the Company contained in this Indenture
(other than a default in the performance of any covenant, agreement
or warranty, the breach of which is specifically dealt with
elsewhere in this Section 501), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to
the Company and the Trustee by Holders of at least 40% in aggregate
principal amount of the Outstanding Notes, a written notice
specifying such default or breach, requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) default by the Company or any Subsidiary thereof in the
payment of any principal of, or premium, if any, or interest due
(and such default, with respect to payments of interest, shall
continue after the applicable grace period, if any) on any
Indebtedness of the Company or such Subsidiary in excess of
$5,000,000 in the aggregate, or the holder of any lien securing In-
debtedness of $5,000,000 or more shall have commenced foreclosure
of such lien upon property of the Company or such Subsidiary; or
(5) an event of default as defined in any indenture, loan
agreement, mortgage, bond, promissory note or other agreement or
instrument under which there may be issued, or by which there may
be secured or evi- denced, any Indebtedness of the Company or any
Subsidiary thereof in excess of $5,000,000 in the aggregate shall
happen and shall result in such Indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise become due and payable; or
(6) final judgments or orders rendered against the Company or any
Subsidiary thereof which require the payment in money, either
individually or in an aggregate amount, that is more than
$5,000,000 and there shall have been a period of 60 days during
which a stay of the enforcement of such judgment or order, by
reason of pending appeal or otherwise, was not in effect; or
(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Material Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order adjudging the Company
or any Material Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Material Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Material Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 30
consecutive days; or
(8) the commencement by the Company or any Material Subsidiary of
a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any Material Subsidiary
to the entry of a decree or order for relief in respect of the
Company or such Material Subsidiary in an involuntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing of the Company or any Material Subsidiary
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or state law, or the consent by the
Company or any Material Subsidiary to the filing of such petition
or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or such Material Subsidiary or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the adoption by the
Board of Directors (or any committee thereof) of the Company or any
Material Subsidiary of any resolution to ap- prove any of the
foregoing.
Section 502. Acceleration of Maturity Date; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(7) or (8)) occurs and is continuing, then,
the Trustee or the Holders of not less than 33-1/3% in aggregate
principal amount of the Outstanding Notes, by a notice in writing
to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), in the case of an Event of Default
described in clause (i), (ii) or (iii) above and 40% in aggregate
principal amount of the Outstanding Notes in the case of any other
Event of Default, may declare all of the principal of all the Notes
(or the Change of Control Purchase Price if the Event of Default
includes failure to pay the Change of Control Purchase Price),
determined as set forth below, together with accrued interest
thereon, to be due and payable immediately, and upon any such
declaration such amount shall become due and payable. If an Event
of Default specified in Section 501(7) or (8) occurs and is
continuing, then the principal and accrued interest of all the
Notes 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.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article
Five provided, the Holders of a majority in aggregate principal
amount of the Outstanding Notes, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Notes,
(2) the principal of, and premium, if any, on any
Notes, which would become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes,
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Notes plus 2%,
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and
(b) all Events of Default, other than the nonpayment of
the principal of the Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
Notwithstanding the foregoing, in the event of a
declaration of acceleration in respect of the Notes because of an
Event of Default specified in Section 501(4) or (5) shall have
occurred and be continuing, such declaration of acceleration shall
be automatically annulled if the past due indebtedness that is the
subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect
of such Indebtedness or, with respect to an Event of Default
consisting solely of the commencement of a foreclosure proceeding
as described in Section 501(4) (a "Foreclosure Default"), if such
foreclosure shall have been stayed or the Company shall have
obtained a bond in the full amount claimed in such foreclosure
proceeding, and written notice of such discharge, rescission, stay
or bond, as the case may be, shall have been given to the Trustee
by the Company and by the holders of such Indebtedness or a
trustee, fiduciary or agent for such holders, within 60 days after
such declaration of acceleration in respect of the Notes, and no
other Event of Default has occurred during such 60-day period which
has not been cured or waived during such period.
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
on any Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of, or premium, if any, on any Note at the Maturity thereof, the
Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Notes, the whole amount then due and
payable on such Notes for principal, premium, if any, and interest,
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium, if any,
and on any overdue interest, at the rate borne by the Notes, and,
in addition thereto, 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.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect
the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon
the Notes, wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effective to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
The rights and remedies under this Section 503 are in
addition to the other rights and remedies under this Article Five.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the
Company or any other obligor upon the Notes or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount
of principal and premium, if any, and interest owing and unpaid in
respect of the Notes and to file such 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 agent and
counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 607.
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, liquidation, arrangement,
adjustment, or composition affecting the Notes or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Notes in respect
of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article Five or otherwise on behalf of the Holders or the Trustee
pursuant to this Article or through any proceeding or any amendment
or restructuring in anticipation or in lieu of any proceeding
contemplated by this Article shall be applied, subject to
applicable laws, in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal, premium, if any, or interest, upon
presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and unpaid
for principal of, and premium, if any, and interest on, the Notes
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for
principal, premium, if any, and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whomsoever may be lawfully
entitled thereto, or as a court of competent jurisdiction may
direct.
Section 507. Limitation on Suits.
No Holder of any Note shall have any right to institute
any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 33-1/3% in the
case of an Event of Default described in Section 501(l), (2) or (3)
and 40% in the case of any other Event of Default in principal
amount of the outstanding Notes shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Defaults in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding
Notes;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Notes shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium,
if any, and (subject to Section 307) interest on, such Note on the
respective Stated Maturities of such payments as expressed in such
Notes (and in the case of redemption, the Redemption Price on the
applicable Redemption Date and in the case of a Change of Control,
the Change of Control Purchase Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such
proceeding, (a) the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and (b) thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Notes in the last paragraph of Section 306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Note 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 Five 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 512. Control by Holders.
The Holders of a majority in aggregate principal amount
of the Outstanding Notes shall have the right to 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 the Trustee, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) subject to the provisions of Section 315 of the
Trust Indenture Act, the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
The Company shall set a record date for purposes of
determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted by this
Indenture. Unless the Company provides otherwise, in the form of
an Officers' Certificate provided to the Trustee, such record date
shall be 30 days prior to the first such vote or solicitation of
such consent.
Section 513. Waiver of Past Default.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes may, on behalf of all
Holders, waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of, premium, if
any, or interest on, any Security as specified in clauses (1), (2)
or (3) of Section 501, or
(2) in respect of a covenant or provision hereof
which, under Article Nine, cannot be modified or amended without
the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Note by its acceptance thereof shall be deemed to have agreed,
that any court may in its discre- tion require, 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, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Notes, or to any suit
instituted by any Holder for enforcement of the payment of
principal of, or premium (if any) or interest on, any Note on or
after the respective Stated Maturities expressed in such Note (or,
in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) 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.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith or willful
misconduct 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; but
in the case of any such certificates or opinions which, by any
provision hereof, are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or
her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection (c) shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Notes relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
(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) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording pro- tection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder known to the Trustee, the Trustee shall transmit by mail
to (i) all Holders, as their names and addresses appear in the Note
Register, (ii) each Holder who has, within the two years preceding
such transmission, filed its name and address with the Trustee for
that purpose, and (iii) all Holders whose names and addresses have
been furnished to or obtained by the Trustee pursuant to Section
701, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the
principal of, or premium, if any, or interest on, any Note at its
Maturity, Redemption Date or otherwise or in the payment of the
Change of Control Purchase Price on the Change of Control Purchase
Date, 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 or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in
the interest of the Holders; and provided, further, that in the
case of any default of the character specified in Section 501(3),
no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution
thereof;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate or an Opinion of Counsel
or both;
(d) the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete autho- rization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness 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, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility and Qualification on Form
T- 1, if any, supplied to the Company will be true and accurate
subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of
Notes or the proceeds thereof.
Section 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent,
any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Notes and, subject to Section 612, may other- wise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other
agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with
the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
reasonable compensation as the Company and the Trustee shall from
time to time agree upon in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
dis- bursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
non-employee agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its
negligence, willful misconduct or bad faith; and
(3) to indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all loss,
damage, claims, liability or expense, including taxes (other than
taxes based upon or determined by the income of the Trustee),
except to the extent arising out of negligence, willful misconduct
or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
The Trustee shall have a claim prior to the Notes as to
all property and funds properly held by it hereunder for any amount
owing it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the
Holders of particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(7) or
Section 501(8), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar
law.
The provisions of this Section shall survive the
termination of this Indenture.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation or association organized and doing business
under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or state authority and, to the extent there is such an
institution eligible, and willing to serve, having its Corporate
Trust Office in the City of Los Angeles, California, the City of
New York, New York or the City of Hartford, Connecticut. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article Six. The Trustee
shall comply with Sections 310(a)(5) and 310(b) of the Trust
Indenture Act.
Section 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 610.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in aggregate principal amount of the
outstanding Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request therefor
by the Company or by any Holder, or
(2) the Trustee shall become incapable of acting or
shall be judged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder who
has been a bona fide Holder of a Note for at least six months may,
on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. If an instrument of
acceptance by a Successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders as their names and addresses
appear in the Note Register. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust
Office.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges pursuant to Section 607, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of
any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article Six.
Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Notes shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Notes.
Section 612. Preferential Collection of Claims Against Company.
The Trustee shall comply with Trust Indenture Act
311(a), excluding any creditor relationship listed in Trust
Indenture Act 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act 311(a) to the
extent indicated.
Section 613. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
acceptable to the Company which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original
issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Notes so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to
the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent.
The Company agrees to pay each Authenticating Agent, as
appointed from time to time, such reasonable fees as may be agreed
to in writing by the Company, for services rendered under this
Section 613.
If an appointment is made pursuant to this Section 613,
the Notes may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Notes described in the within-mentioned
Indenture.
, as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
Section 614. Paying Agent.
(a) There shall at all times be a Paying Agent hereunder
which shall be a corporation or association organized and doing
business under the laws of the United States of America or of any
State and having a combined capital and surplus of at least
$50,000,000, to the extent there is such an institution eligible
and willing to serve. If there is no such institution eligible and
willing to serve, the Company may act as its own Paying Agent.
(b) The Paying Agent may resign at any time by giving
written notice thereof to the Company. The Company, by a Board
Resolution and upon giving written notice thereof to the Paying
Agent, may remove the Paying Agent at any time.
(c) If the Paying Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Paying Agent for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Paying Agent.
(d) The Company shall give notice of each resignation
and each removal of the Paying Agent and each appointment of a
successor Paying Agent by mailing written notice of such event by
first-class mail, postage prepaid, to the Trustee. Each notice
shall include the name and address of the successor Paying Agent.
(e) The Trustee is hereby initially appointed "Paying Agent".
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
(a) The Company shall furnish or cause to be furnished
to the Trustee
(i) semi-annually, not more than 15 days
after each Regular Record Date, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date, and
(ii) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the Company
of any such request, a list in similar form and content as of a
date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee shall be the
Note Registrar, no such list need be furnished.
(b) If and whenever the Company or any Affiliate
acquires any Notes, the Company shall promptly, and in any event
within 15 days, provide the Trustee with written notice of such
acquisition, the aggregate principal amount acquired, the Holder
from whom such Notes were acquired and the date of such
acquisition.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Note Registrar. The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
(b) If one Holder (herein referred to as an "applicant")
applies in writing to the Trustee, and furnishes to the Trustee
reasonable proof that such appli- cant has owned a Note for a
period of at least six months preceding the date of such
application, and such application states that the applicant desires
to communicate with other Holders with respect to their rights
under this Indenture or under the Notes and is accompanied by a
copy of the form of proxy or other communication which such
applicant proposes to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its
election, either
(i) afford to such applicant access to the
information preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicant as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 702(a), and as to the ap- proximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford such applicant
access to such information, the Trustee shall, upon the written
request of such applicant, mail to each Holder whose name and
address appears in the information preserved at the time by the
Trustee in accordance with Section 702(a) a copy of the form of
proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment,
of the reasonable expenses of mailing, unless within five days
after such tender the Trustee shall mail to such applicant and file
with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of
the Trustee, such a mailing would be contrary to the best interest
of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender.
(c) Every Holder of Notes, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
Section 703. Reports by Trustee.
This Section 703 shall not be operative as a part of this
Indenture until this Indenture is qualified under the Trust
Indenture Act, and, until such qualification, this Indenture shall
be construed as if this Section 703 were not contained herein.
Within 60 days after May 15 of each year commending with
the year 1995, the Trustee shall transmit by mail to (i) all
Holders, as their names and addresses appear in the Note Register,
(ii) all Holders who have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for
that purpose, and (iii) all Holders whose names and addresses have
been furnished to or obtained by the Trustee pursuant to Section
701, a brief report dated as of such May 15 with respect to:
(1) its eligibility under Section 608 and its
qualifications under the Trust Indenture Act or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible and
qualified under said statute, a written statement to such effect;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Trust
Indenture Act 310(b);
(3) the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the
Notes, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than one-half of 1% of the principal amount of the Notes
outstanding on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company (or by
any other obligor on the Notes) to the Trustee in its individual
capacity, on the date of such report, with a brief description of
any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 612;
(5) any change to the property and funds physically
in the possession of the Trustee as such on the date of such
report;
(6) any additional issue of Notes which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Notes,
except action in respect of a default, notice of which has been or
is to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Note Register, a brief
report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since
the date of the last report transmitted pursuant to Subsection (a)
of this Section 703 (or if no such report has yet been so
transmitted, since the date of execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge,
prior to that of the Notes, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant
to this subsection (b), except that the Trustee shall not be
required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal
amount of the Notes outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange, if any, upon which the Notes are listed, with the
Commission and with the Company. The Company shall promptly notify
the Trustee when the Notes are listed on any stock exchange.
Section 704. Reports by Company.
(a) The Company shall:
(1) file with the Commission copies of the audited
annual reports, unaudited quarterly reports and other information,
documents and reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
Sections, then the Company shall file with the Commission, in
accordance with rules and regula- tions prescribed from time to
time by the Commission and to the extent permitted under the
Exchange Act, such of the supplementary and periodic information,
documents and reports which the Company would have been required to
file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act if the Company had a class of securities listed
and registered on a national securities exchange; and in either of
the foregoing cases the Company (a) shall file such information,
documents and reports with the Commission on or prior to the
respective dates by which the Company is or would have been
required so to file such documents, and (b) shall deliver to the
Trustee copies of such information, documents and reports which the
Company is required to file with the Commission (or would have been
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act if the Company had a class of
securities listed and registered on a national securities exchange)
within 15 days after the Company is (or would have been) required
to file the same with the Commission;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time
by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit by mail to (i) all Holders, as their
names and addresses appear in the Note Register, (ii) all Holders
who have, within the two years preceding such transmission, filed
their name and address with the Trustee for that purpose, and (iii)
all Holders whose names and addresses have been furnished to or
obtained by the Trustee pursuant to Section 701, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
(b) If filing such information, documents or reports by
the Company with the Commission is not permitted under the Exchange
Act or the rules and regulations prescribed from time to time by
the Commission thereunder, the Company shall promptly upon written
request supply copies of such information, documents or reports to
any Holder and to any prospective purchaser of a Note designated by
a Holder unless the provision of such information shall no longer
be required by law to effect resales of the Notes without
registration under the Securities Act.
Section 705. Certain Obligations of the Trustee.
(a) The Trustee, within five Business Days of its
receipt thereof, will mail to each Holder, as its name and address
appears in the Note Register, copies of all notices, reports,
financial statements, certificates and other documents received by
the Trustee from the Company under this Indenture.
(b) The Trustee, concurrently with any notice or other
document provided by the Trustee to the Company hereunder, will
mail to each Holder as its name appears on the Note Register a copy
of such notice or other document.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. The Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not, in a single transaction or a
series of related transactions, directly or indirectly (i)
consolidate with or merge with or into any other Person or convey,
transfer or lease its properties and assets substantially as an
entirety to any Person or permit any Subsidiaries to enter into any
such transaction or transactions if such transaction or
transactions in the aggregate would result in a sale of all or
substantially all of the assets of the Company and any Subsidiaries
on a consolidated basis or (ii) adopt a plan of liquidation unless:
(a) either (1) the Company shall be the continuing
corporation or (2) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety
(i) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all the Notes
and the performance of every covenant of the Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the
Company or a Subsidiary of the Company in connection with or as a
result of such transaction as having been incurred at the time of
such transaction), the Company (in the case of clause (1) of
Subsection (a) above) or such Person (in the case of clause (2)
thereof) shall have a Consolidated Net Worth equal to or greater
than the Consolidated Net Worth of the Company immediately prior to
such transaction;
(c) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the
Company or a Subsidiary of the Company in connection with or as a
result of such transaction as having been incurred at the time of
such transaction), no Event of Default under the Indenture, and no
event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing;
(d) immediately after giving effect to any such
transaction on a pro forma basis, the Fixed Charge Coverage Ratio
of the surviving entity is at least 1:1; provided, that, if the
Fixed Charge Coverage Ratio of the Company is within the range set
forth in Column A below, then the Fixed Charge Coverage Ratio of
the surviving entity, shall be at least equal to the percentage of
the Fixed Charge Coverage Ratio of the Company set forth in Column
B below:
(A) (B) 1.1111:1 to
1.9999:1.............................90% 2:1 to
2.9999:1.............................80% 3:1 to
3.9999:1.............................70% 4:1 to
4.9999:1.............................60% 5:1 or
more.................................50%
and provided, further, that if the Fixed Charge Coverage Ratio of
the surviving entity is 3:1 or more, the calculation in the
preceding proviso shall be inapplicable and such transaction shall
be deemed to have complied with the requirements of such provision;
and
(e) the Company or such Person shall have delivered to
the Trustee an Officers' Certificate stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article
Eight and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
Section 802. Successor Substituted for the Company.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any sale, lease, transfer or
other conveyance of all or substantially all of the assets of the
Company in accordance with Section 801, the surviving entity shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein;
when a successor corporation assumes all of the obligations of the
Company hereunder and under the Notes, in accordance with Section
801, the predecessor shall be released from such obligations.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company, in each
case when authorized by Board Resolutions, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
obligations of the Company herein and in the Notes, in accordance
with Article Eight; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (3) shall not
adversely affect the interests of the Holders; or
appointment of a successor Trustee hereunder.
Section 902. Amendments, Supplemental Indentures and Waivers with
Consent of Holders.
Subject to Section 508, with the consent of the Holders
of not less than a majority in aggregate principal amount of the
Outstanding Notes, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by Board Resolution,
and the Trustee may amend this Indenture or enter into an indenture
or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall without the consent of the
Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of,
or any in- stallment of interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon, or change
the place of payment where, or the coin or currency in which, the
principal of any Note or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or alter the
redemption provisions hereof in a manner which is adverse to any
Holder, or
(2) amend, change or modify the obligation of the
Company to make and consummate a Change of Control Offer in the
event of a Change of Control in accordance with Section 1109,
including amending, changing or modifying any of the definitions
with respect thereto, or
(3) reduce the percentage in principal amount of
Outstanding Notes, the consent of whose Holders is required for any
such amendment, supplemental indenture or waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture,
or
(4) modify any of the provisions of this Section or
Section 513, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding
Note affected thereby.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
amendment, supplemental indenture or waiver, but it shall be
sufficient if such Act shall approve the substance thereof.
After an amendment, supplemental indenture or waiver
under this Section becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment,
supplemental indenture or waiver. Any failure of the Company to
mail such notice, or defect therein, shall not, however, in any way
impair or affect the validity of such amendment, supplemental
indenture or waiver.
Section 903. Execution of Amendment or Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any amendment or supplemental indenture permitted by this
Article Nine or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be en- titled to receive, and
(subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel or Officers' Certificate or both of the
Company stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such amendment or supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Amendment or Supplemental Indentures.
Upon the execution of any amendment or supplemental
indenture under this Article Nine, this Indenture shall be modified
in accordance therewith, and such amendment or supplemental
indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every amendment or supplemental indenture executed
pursuant to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
Section 906. Reference in Notes to Amendments or Supplemental
Indentures.
Notes authenticated and delivered after the execution of
any amendment or supplemental indenture pursuant to this Article
Nine may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
amendment or supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Company, to any such amendment or supplemental
indenture may be prepared and executed by the Company, and
authenticated and made available for delivery by the Trustee in
exchange for Outstanding Notes.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay, in immediately
available funds, the principal of, premium, if any, and interest
on, the Notes and the Redemption Price and Change of Control
Purchase Price as and when due, in accordance with the terms of the
Notes and this Indenture.
The Company shall pay interest on overdue amounts at the
rate set forth in paragraph 1 of the Notes, and it shall pay
interest on overdue interest at the same rate compounded
semiannually (to the extent that the payment of such interest shall
be legally enforceable), which interest on overdue interest shall
accrue from the date such amounts became overdue.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in the City of New York an
office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon on
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies (in or outside the City of New York)
where the Notes may be presented or surrendered for any or all such
purposes and may from time to time re- scind 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 City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency.
Section 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it shall, on or before each due date of the principal of,
premium, if any, or interest on, any of the Notes, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act; provided, that,
with respect to any such sums, such trust shall arise and be
enforceable only on and after the date on which payment is due with
regard to such sums; and only to the extent payment is then due and
only as to funds actually segregated and appropriated to such
payments.
Whenever the Company shall have one or more Paying
Agents, it shall, on or prior to each due date of the principal of,
premium, if any, or interest on, any Note, deposit with a Paying
Agent a sum sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium (if any)
or interest, and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on, Notes in trust for
the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Notes) in the making of any
payment of principal, premium, if any, or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may, at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company in trust for the payment of the
principal of, premium, if any, or interest on, any Note and
remaining unclaimed for two years after such principal, premium, if
any, or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, be or
being required to make any such repayment, may, at the expense of
the Company, cause to be published once, in a newspaper customarily
published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid
to the Company.
Section 1004. Statements of Officers of the Company as to Default;
Notice of Default.
(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, as the case
may be, a certificate, signed by the principal executive officer
and by either the principal financial officer or the principal
accounting officer, stating that such officers have conducted or
supervised a review of the activities of the Company and its
Subsidiaries and of performance under this Indenture and whether or
not to the best knowledge of the signers thereof the Company has
fulfilled all of its obligations under this Indenture or is in
default (without regard to periods of grace or requirements of
notice) in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in
default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
(b) The Company shall file with the Trustee written
notice of the occurrence of any default or Event of Default or
event or condition which with notice or the lapse of time or both
would become an Event of Default within five Business Days of its
becoming aware of any such default, Event of Default or event or
condition.
Section 1005. Existence.
Subject to Article Eight, the Company shall do or cause
to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and
franchises of the Company and each Subsidiary thereof; provided,
however, that the Company shall not be required to preserve any
such right or franchise if its Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material
respect to the Holders; provided, further, that any Subsidiary of
the Company with a net worth greater than zero may consolidate
with, merge into, or transfer or distribute all or part of its
properties and assets to, the Company or any Subsidiary thereof.
Section 1006. Maintenance of Properties; Insurance.
(a) The Company shall cause all properties used or
useful in the conduct of its business or the business of any
Subsidiary 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 the judgment of the
Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 1006
shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous
in any material respect to the Holders.
(b) The Company will at all times keep all of its and
its Subsidiaries' properties which are of an insurable nature
insured with insurers, believed by the Company to be responsible,
against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated
and owning like properties. In lieu of or supplemental to such
insurance the Company may adopt such other plan or method of
protection, whether by the establishment of an insurance fund or
reserve to be held and applied to make good losses from casualties,
or otherwise, and conforming to the practices of similar
corporations maintaining systems of self-insurance, as may be
determined by the Board of Directors.
Section 1007. 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, (a) all taxes,
assessments and governmental charges levied or imposed (i) upon the
Company or any Subsidiary thereof or (ii) upon the income, profits
or property of the Company or any Subsidiary, and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Sub-
sidiary; 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 whose amount, applicability or validity
is being contested in good faith by appropriate proceedings or any
such tax, assessment, charge or claim referred to in clause (a)(i)
or (b) above if the failure to so pay or discharge such tax
assessment, charge or claim would not have or would not be likely
to have material adverse effect on the business operations,
properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole.
Section 1008. Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute
and deliver such further instruments and perform such further acts
as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 1009. Limitation on Indebtedness.
The Company will not, and will not permit any Subsidiary
of the Company to, create, incur, assume or directly or indirectly
guarantee or in any other manner become directly or indirectly
liable for the payment of any Indebtedness (including Acquired
Indebtedness), other than Permitted Indebtedness, unless at the
time of such event and after giving effect thereto the Company's
Fixed Charge Coverage Ratio on a pro forma basis for its last four
completed fiscal quarters, taken as a whole and calculated on the
assumption that such Indebtedness had been incurred on the first
day of such four-quarter period, and in the case of Acquired
Indebtedness, on the assumption that the related acquisition
(whether by means of purchase, merger or otherwise) also had
occurred on such date, would have been greater than the ratios set
forth below during the periods commencing on the dates indicated
below:
Period Commencing Ending Ratio Effective Date
January 28, 1996 2.000 January 29, 1996
January 26, 1997 2.150 January 27, 1997
January 25, 1998 2.250 January 26, 1998
January 31, 1999 2.350
Thereafter 2.450
Section 1010. Limitation on Restricted Payments.
The Company will not, directly or indirectly, (i) declare
or pay any dividend on or make any distributions in respect of the
capital stock of the Company or any Subsidiary thereof (except for
(x) dividends or distributions payable solely to the Company or any
Subsidiary of the Company and (y) dividends or distributions of a
Subsidiary of the Company solely on the capital stock of such
Subsidiary), or purchase, redeem or retire for value, or make any
payment on account of the purchase, redemption or other acquisition
or retirement for value of, any capital stock or warrants, rights
or options to purchase such capital stock, (ii) make any principal
payment on, or redeem, repurchase or defease, or otherwise acquire
or retire for value, Subordinated Debt, prior to any scheduled
principal payment, scheduled sinking fund payment or maturity
thereof, or (iii) make any loan or advance to, or any other
Investment in, any of its Affiliates other than a Subsidiary of the
Company (such payments or any other actions described in (i), (ii)
and (iii), collectively, "Restricted Payments") unless (1) at the
time of and after giving effect to the proposed Restricted Payment,
no Event of Default or event that, after notice or lapse of time,
or both, would become an Event of Default, shall have occurred and
be continuing, and (2) at the time of and after giving effect to
the proposed Restricted Payment (the amount of any such payment, if
other than cash, to be determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board
Resolution) (A) the Consolidated Net Worth of the Company shall be
at least $75,000,000 and (B) the aggregate amount of all Restricted
Payments after the Effective Date shall not exceed 50% of
Cumulative Net Available Cash of the Company and (C) the Fixed
Charge Coverage Ratio calculated on a pro forma basis for the full
twelve-month period ending on the last day of the Company's fiscal
quarter immediately preceding such proposed Restricted Payment
shall be at least 1.50 to 1. Notwithstanding the foregoing, this
provision will not prohibit the redemption, by the Company, of its
common stock (on a fully diluted basis) from time to time under the
terms and conditions of management equity subscription agreements
or stock option agreements and related exhibits, so long as such
redemption does not otherwise result in an Event of Default or
event that, after notice or lapse of time or both, would become an
Event of Default.
The foregoing provisions shall not be deemed to prohibit
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such declaration
complied with the provisions of the Indenture, or (2) the
redemption, repurchase or other acquisition or retirement (a
"retirement") of any shares of any class of capital stock of the
Company or of any Subsidiary thereof in exchange for (including any
such exchange pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu of the
issuance of fractional shares or scrip), or out of the proceeds of
a substantially concurrent issue and sale (other than to a
Subsidiary of the Company) of, other shares of capital stock of the
Company, or (3) the retirement of Subordinated Debt out of the
proceeds of a substantially concurrent sale (other than to a
Subsidiary of the Company) of shares of capital stock of the
Company or issuance other than to a Subsidiary of the Company of
new Indebtedness which has a weighted average life to maturity at
least as long as the Stated Maturity of the Notes and no sinking
fund or scheduled principal payments prior to the maturity of the
Notes and the payment of which is subordinated in right of payment
and otherwise to the Notes at least to the same extent as such
Subordinated Debt, or (4) the payment of dividends or the making of
distributions on shares of capital stock of the Company solely in
shares of capital stock of the Company.
Section 1011. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any Subsidiary
of the Company to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any
kind on the ability of any Subsidiary of the Company to (a) pay
dividends or make any other distribution on its capital stock, (b)
pay any Indebtedness owed to the Company or any other Subsidiary of
the Company, (c) make loans or advances to the Company or any other
Subsidiary of the Company or (d) transfer any of its property or
assets to the Company or any other Subsidiary of the Company except
as set forth in the instrument evidencing or the agreement
governing Acquired Indebtedness of any acquired entity which be-
comes a Subsidiary of the Company, provided, that any restriction
or encumbrance under such instrument or agreement existed at the
time of acquisition, was not put in place in anticipation of such
acquisition, and is not applicable to any Person, other than the
Person or property or assets of the Person so acquired.
Section 1012. Limitation on Transactions with Affiliates.
The Company will not enter into, renew or extend, or
permit any Subsidiary of the Company to enter into, renew or extend
any agreement relating to the sale, purchase or lease of any
assets, property or services from or to any Affiliate of the
Company (other than a wholly owned Subsidiary of the Company) on
terms that are less favorable to the Company or such Subsidiary of
the Company, as the case may be, than would be available in a
comparable transaction with an unaffiliated third party; provided,
however, that the Company will not enter into, renew or extend any
such agreement or series of related agreements which, individually
or in the aggregate, involve payments in excess of $500,000, unless
the Board of Directors determines that such transaction is fair to
the Company; provided, further, that notwithstanding the foregoing,
the Company may enter into and perform the Management Services
Agreement, dated as of the Effective Date, between the Company and
Leonard Green & Partners, L.P., in the form attached as Exhibit A
to the Plan.
Section 1013. Disposition of Proceeds of Asset Sale.
(a) If all or a portion of the Net Cash Proceeds of any
Asset Sale are not required to be applied to repay any outstanding
Bank Credit Agreement Indebtedness as required by the terms
thereof, or the Company determines not to apply such Net Cash
Proceeds to the prepayment of such Indebtedness or if no such
Indebtedness is outstanding, then the Company may (i) use the Net
Cash Proceeds, or a portion thereof, as working capital in the
ordinary course of business or (ii) within 12 months of the Asset
Sale, invest the Net Cash Proceeds in properties and assets to
replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that (as determined by the
Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) will be used in the business of
the Company and its Subsidiaries existing on the date of the
Indenture or in businesses similar or related thereto. The amount
of such Net Cash Proceeds neither used to repay such Indebtedness
nor used or invested as set forth in the foregoing clause (i) or
(ii) constitutes "Excess Proceeds".
When the aggregate amount of Excess Proceeds equals
$3,000,000 or more, the Company shall offer to purchase (an
"Offer") from all holders of New Notes the maximum principal amount
(expressed as a multiple of $1,000) of New Notes that may be
purchased out of the Excess Proceeds, provided that the Company may
satisfy its obligations to make an Offer in whole or in part by
delivering to the Trustee (or the trustee under the Senior Floating
Rate Notes Indenture, as the case may be) for cancellation New
Notes purchased by it not earlier than six months prior to the date
of the Offer; provided, further, that if the Company elects to
satisfy its obligations to make an Offer in the manner set forth in
the preceding clause, the Company shall deliver for cancellation
the Notes and the Senior Floating Rate Notes so purchased in
proportionate amounts. In the event the Excess Proceeds are less
than the aggregate Offered Price (as defined below) of all New
Notes tendered, the New Notes to be purchased shall be purchased
out of the Excess Proceeds pro rata in integral multiples of $1,000
only. The offer price (the "Offered Price") shall be an amount in
cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of the Offer. To the extent
that the aggregate Offered Price of all New Notes tendered pursuant
to an Offer plus the principal amount of all New Notes purchased by
the Company and canceled in satisfaction of the Offer is less than
the Excess Proceeds relating thereto (such shortfall constituting a
"Deficiency"), the Company may use such Deficiency, or a portion
thereof, for general corporate purposes. Upon completion of the
purchase of all New Notes tendered pursuant to an Offer, the amount
of Excess Proceeds shall be reset at zero.
(b) Within 30 days after the date on which the amount of
Excess Proceeds equals $3,000,000 or more, the Company shall send
by first-class mail, postage prepaid, to each Holder of the New
Notes, at his address appearing in the Note Registrar, a notice
stating:
(1) that the Holder has the right to require the Company
to repurchase such Holder's New Notes at the Offered Price, subject
to proration in the event the Excess Proceeds are less than the
aggregate Offered Price of all New Notes tendered;
(2) the date of the Offer (the "Offer Date") which shall
be no earlier than 45 days nor later than 60 days from
the date such notice is mailed; and
(3) the instructions a Holder must follow in order to
have its New Notes purchased in accordance with paragraph
(c) of this Section.
(c) Holders electing to have their New Notes purchased
will be required to give notice of such election (an "Election
Notice") to the Company at the address specified in the notice at
least five Business Days prior to the Offer Date. Holders will be
entitled to withdraw their election if the Company receives, not
later than three Business Days prior to the Offer Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the New Notes as to which his
election is to be withdrawn and a statement that such Holder is
withdrawing his election to have such New Notes purchased. If the
aggregate principal amount of their New Notes as to which Holders
have given an Election Notice exceeds the amount of Excess
Proceeds, the Company shall purchase the New Notes to be purchased
out of the Excess Proceeds pro rata. Holders whose New Notes are
purchased only in part will be issued New Notes equal in principal
amount to the unpurchased portion of the New Notes surrendered.
(d) In the event that the Company shall be unable to
purchase Notes from Holders in an Offer because of provisions of
the Bank Credit Agreement or in the event the Company shall be
unable to purchase Notes from Holders in an Offer because of
provisions of applicable law, the Company need not make an Offer.
The Company shall then be obligated to use the Excess Proceeds as
working capital or to invest the Excess Proceeds in replacement
properties and assets, in accordance with clause (i) or (ii) of
Subsection (a) of this Section.
(e) Whenever Net Cash Proceeds received by the Company,
and prior to the purchase of New Notes or an allocation to the
payment of Bank Credit Agreement Indebtedness, as set forth in
Subsection (a) of this Section 1013, exceeds $1,500,000, such Net
Cash Proceeds shall be set aside by the Company in a separate
account pending (i) deposit with the depositary for the amount
required to repay the New Notes tendered in an Offer, (ii) delivery
by the Company of the Offered Price to the Holders of the Notes and
the holders of the other New Notes tendered in an Offer or (iii)
allocation, as set forth in Subsection (a) of this Section, of Net
Cash Proceeds to the payment of Bank Credit Agreement Indebtedness
or to working capital or investment in properties and assets. Such
Net Cash Proceeds may be invested in (A) any U.S. Government
Obligations maturing not more than one year after the date of
issue, (B) any certificate of deposit, maturing not more than 90
days after the Offer Date, issued by, or time deposit of, a
commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and
undivided profits of not less than $200,000,000, (C) commercial
paper, maturing not more than 90 days after the date of the Offer,
issued by a corporation (other than an Affiliate or Subsidiary of
the Company) organized and existing under the laws of the United
States of America that is rated, at the time as of that any
investment therein is made, "P-2" (or higher) by Moody's Investors
Service, Inc., or "A-2" (or higher) by Standard and Poor's
Corporation, and (D) adjustable rate preferred stock that is
readily marketable, provided that the maturity date of any
investment permitted by clauses (A), (B) and (C) shall not be later
than the Offer Date in the case of an Offer.
Section 1014. Guarantees of Indebtedness.
The Company (x) will not permit an Affiliate of the
Company (a "guarantor") to guarantee or secure the payment of any
Indebtedness of the Company or any Subsidiary thereof and (y) will
not, and will not permit a Subsidiary of the Company (each of the
Company and its Subsidiaries, a "guarantor") to, guarantee or
secure the payment of any Indebtedness of any Person, unless, in
either case, the payment of the Notes is also guaranteed by any
such guarantor pursuant to a guarantee in form and substance
satisfactory to the Trustee (a "Guarantee"); provided, however,
that any such Guarantee shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon
either (i) the release or discharge of such guarantee of, or
security for (or both such guarantee and such security, if
applicable), the payment of such Indebtedness, except a discharge
by or as a result of payment under such guarantee or security or
payment of such Indebtedness or (ii) any sale, exchange or
transfer, to any person not an Affiliate of the Company, of the
Company's stock in, or of all or substantially all the assets of,
such guarantor if such guarantor is a Subsidiary of the Company
which sale, exchange or transfer does not result in a breach of
Sections 1005, 1012, 1013, 1014, 1015, 1016 and 1017.
Section 1015. Limitation on Certain Liens.
(a) The Company will not, and will not permit any
Subsidiary of the Company to, permit to exist any security interest
or pledge any asset to secure the payment of any Indebtedness which
ranks junior to or is subordinate in right of payment to the Notes.
(b) The Company will not, and will not permit any
Subsidiary of the Company to, permit to exist any security interest
or pledge any asset to secure the Senior Floating Rate Notes or any
Indebtedness incurred to refinance the Senior Floating Rate Notes
unless it shall make effective provision whereby the Notes shall be
directly secured equally and ratably with the Indebtedness so
secured (the "Secured Debt"), and in the same proportion as the
Secured Debt in an amount equal to the product of (i) a ratio the
numerator of which is the aggregate principal amount of Secured
Debt and the denominator of which is the aggregate principal amount
of Senior Floating Rate Notes and the Indebtedness incurred to
refinance the Senior Floating Rate Notes, outstanding immediately
after such security interest is granted multiplied by (ii) the
aggregate principal amount of Notes outstanding at the time such
security is granted.
Section 1016. Investments.
The Company will not, and will not permit any Subsidiary
of the Company to, directly or indirectly make or own any
Investment in any Person except:
(a) Investments in Investment Cash Equivalents; (b)
promissory notes of purchasers in sales by the Company of
properties or assets not exceeding an aggregate principal balance
of $5,000,000 outstanding at any one time;
(c) amounts due from landlords for remodelling work done
by the Company for account of a landlord, not exceeding an
aggregate principal balance of $4,000,000 outstanding at any one
time;
(d) other Investments not in excess of an aggregate
amount of $1,000,000 outstanding at any one time; and
(e) Investments in respect of Securities of another
Person received by the Company in connection with a plan of
reorganization or readjustment of such Person or its debts. Section
1017. Conduct of Business.
The Company shall not engage in any business other than
(a) the business engaged in by the Company on the date hereof, and
(b) any business activities substantially similar or related
thereto.
Section 1018. Limitations on Subordinated Debt.
The Company shall not, and shall not permit any
Subsidiary of the Company to, (a) create, incur, assume or directly
or indirectly guarantee or in any other manner become directly or
indirectly liable for the payment of any Indebtedness that is
expressly subordinate in right of payment to any Indebtedness of
the Company or any Subsidiary thereof unless such subordinate
Indebtedness both constitutes Subordinated Debt and does not
require principal repayments or sinking fund payments to be made
prior to the Stated Maturity of the Notes, or (b) amend the
provisions of any instrument evidencing or agreement governing
Subordinated Debt to (i) require principal repayments or sinking
fund payments to be made prior to the Stated Maturity of the Notes
or (ii) alter the subordination provisions of such Subordinated
Debt.
ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 1101. Right of Redemption.
The Notes may be redeemed, otherwise than upon a Change
in Control as defined in and required by Section 1109, at the
election of the Company, as a whole or from time to time in part,
at the Redemption Price specified in the form of Note set forth in
Article Two for redemptions, together with accrued interest to the
Redemption Date.
Section 1102. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and this
Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant
to Section 1101 shall be evidenced by a Board Resolution of the
Company. In case of any redemption at the election of the Company,
the Company shall, at least 30 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satis-
factory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Notes to be redeemed.
Section 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the
particular Notes to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the
Outstanding Notes not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of
Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and the
Note Registrar (if other than the Trustee) in writing of the Notes
selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Notes shall relate, in the case of any Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Notes which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of Redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Notes to be
redeemed, at its address appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(4) that New Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price plus accrued
interest, if any,
(5) that, unless the Company defaults in making the
redemption payment, interest on New Notes called for redemption
ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such New Notes is to receive
payment of the Redemption Price plus accrued interest, if any, upon
surrender to the Paying Agent of the Notes redeemed,
(6) if any New Note is being redeemed in part, the
portion of the principal amount of such New Note to be redeemed and
that, after the Redemption Date, and upon surrender of such New
Note, a New Note or New Notes in the aggregate principal amount
equal to the unredeemed portion thereof will be issued,
(7) if fewer than all the New Notes are to be redeemed,
the identification of the particular New Notes (or portion thereof)
to be redeemed, as well as the aggregate principal amount of New
Notes to be redeemed and the aggregate principal amount of New
Notes to be outstanding after such partial redemption,
(8) that on the Redemption Date the Redemption Price
will become due and payable upon each such Note to be redeemed and
that interest thereon will cease to accrue on and after said date,
(9) the place or places where such Notes are to be
surrendered for payment of the Redemption Price, and
(10) the CUSIP number, if any, of the Notes to be
redeemed.
Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company.
Section 1106. Deposit of Redemption Price.
On or prior to 11:00 a.m. (New York time) on the Business
Day immediately preceding any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in same day funds
sufficient to pay the Redemption Price of, and accrued interest on,
all the Notes or portions thereof which are to be redeemed on that
date.
Section 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Notes shall cease
to bear interest. Upon surrender of any such Note for redemption
in accordance with said notice, such Note shall be paid for by the
Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such at the close of business on
the relevant Regular Record Dates or Special Record Dates, as the
case may be, according to their terms and the provisions of Section
307.
If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium
(if any) shall, until paid, bear interest from the Redemption Date
at the rate borne by the Note.
Section 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such
Note without service charge, a new Note or Notes of any authorized
denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
Section 1109. Offer to Purchase Upon a Change in Control.
(a) If at any time either (a) any person or any persons
acting together (excluding the Original Stockholders) that
constitute a "group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, shall beneficially own
at least 50% of the total voting stock of the Company or (b) any
person or any persons acting together (excluding the Original
Stockholders) that constitute a "group" for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended, shall
succeed in having a sufficient number of its nominees elected to
the board of directors of the Company to constitute a majority of
the board of directors of the Company (each, a "Change of
Control"), then the Company shall make an offer to repurchase any
or all of the Outstanding Notes at a price, payable in cash, equal
to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Purchase Date (the
"Change of Control Purchase Price"), in accordance with the
procedures set forth in this Section 1109; provided that such
repurchase shall be conditioned upon receipt by the Company of
Notes representing at least 50% of the aggregate principal amount
of the Outstanding Notes.
(b) Within 30 days after a Change of Control, the
Company shall send by first-class mail postage prepaid, to each
Holder of the Outstanding Notes, at its address appearing in the
Note Register, a notice (a "Change of Control Purchase Notice")
stating:
(1) that a Change of Control has occurred and that the
Holder has the right to require the Company to repurchase such
Holder's Notes at the Change of Control Purchase Price subject to
the conditions contained herein;
(2) that unless Notes representing at least 50% of the
aggregate principal amount of the Outstanding Notes are tendered,
the Company shall not redeem any Notes pursuant to this Section;
(3) the purchase date (the "Change of Control Purchase
Date") which shall be no earlier than 30 days nor later than 50
days from the date such notice is mailed or such later date as is
necessary to comply with requirements under the Exchange Act or any
applicable securities laws or regulations; and
(4) the instructions a Holder must follow in order to
have its Notes purchased in accordance with paragraph (c) of this
Section.
(c) Holders electing to have Notes purchased will be
required to give notice of such election to the Company at the
address specified in the Change of Control Purchase Notice at least
five Business Days prior to the Change of Control Purchase Date.
Holders will be entitled to withdraw their election if the Company
receives, not later than three Business Days prior to the Change of
Control Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount
of the Notes as to which its election is to be withdrawn and a
statement that such Holder is withdrawing its election to have such
Notes purchased.
INDENTURE SIGNATURE PAGE
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 day and year
first above written.
KASH N' KARRY FOOD STORES, INC.
By:
Attest:
Name:
Title:
By
Name:
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By:
Name:
Title:
By:
Name:
Title:
TERMS OF SUBORDINATED DEBT
Payment of the principal of and premium, if any, and
interest on and any other amounts payable with respect to any
Subordinated Debt or on account of the purchase or other
acquisition of such Subordinated Debt shall be (to the extent set
forth below) subordinate and subject in right of payment to the
prior payment in full, in cash or Cash Equivalents, of all
principal or, premium, if any, and interest on, and any other
amounts due on or in respect of all New Notes (including interest
on unpaid principal and interest at the rate provided in the
respective instruments creating the New Notes accruing on or after
the filing of any petition in bankruptcy or reorganization relating
to the Company whether or not a claim for post-filing interest is
allowed in such proceeding) (the "Senior Debt").
1.In the event of (a) any insolvency, bankruptcy or similar case or
proceeding relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, or (c) any assignment for the benefit of
creditors or any other action or proceeding involving the
readjustment of all or any of the indebtedness of the Company, the
holders of New Notes shall be entitled to receive payment in full,
in cash or Cash Equivalents, of all the Senior Debt before the
holders of such Subordinated Debt are entitled to receive any
direct or indirect payment or distribution (in cash, property or
securities or by set-off or otherwise) of any assets of the Company
of any kind or character on account of principal of, premium, if
any, or interest on or any other amounts payable with respect to
such Subordinated Debt (other than securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
such Subordinated Debt, to the payment of all amounts due on or in
respect of New Notes at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment (collectively, "Permitted Junior Securities").
2.Unless paragraph 1 is applicable, upon the occurrence of any
default in the payment of any principal of (or premium, if any) or
interest on any New Note when due (each a "Payment Default"), no
direct or indirect payment or distribution (in cash, property or
securities or by set-off or otherwise) of any assets of the Company
of any kind or character shall be made by the Company on account of
principal of, premium, if any, or interest on or any other amounts
payable with respect to such Subordinated Debt or on account of the
purchase or other acquisition of such Subordinated Debt unless and
until such Payment Default shall have been cured or waived in
writing or shall have ceased to exist or all of the New Notes shall
have been discharged.
3.Unless either paragraph 1 or paragraph 2 is applicable, upon the
occurrence of any event the occurrence of which entitles the
Holders of the requisite aggregate principal amount of the
Outstanding Notes as set forth in Section 502 (the "Requisite
Holders") to accelerate the maturity of any New Note (each a
"Non-payment Event of Default"), no direct or indirect payment or
distribution (in cash, property or securities or by set-off or
otherwise) of any assets of the Company of any kind or character
shall be made by the Company on account of any principal of,
premium, if any, or interest on or any other amounts payable with
respect to such Subordinated Debt or on account of the purchase or
other acquisition of such Subordinated Debt for a period (the
"Payment Blockage Period") commencing on the date written notice of
such default shall have been given to the Company by the Requisite
Holders unless and until (i) more than 179 days shall have elapsed
since receipt of such written notice by the Company, (ii) such
Non-payment Event of Default shall have been cured or waived in
writing or shall have ceased to exist or all of the New Notes shall
have been discharged or (iii) such Payment Blockage Period shall
have been terminated by written notice to the Company from the
Requisite Holders; provided, that, subject to the following
sentence, the commencement of a Payment Blockage Period hereunder
shall not bar the commencement of another Payment Blockage Period
by the Requisite Holders due to another Non-payment Event of
Default. Notwithstanding anything herein to the contrary, in no
event will any one or more consecutive Payment Blockage Periods
extend beyond 179 days from a date on which any payment with
respect to the Subordinated Debt was due.
4.Any payment or distribution, whether in cash, securities or other
property (other than Permitted Junior Securities), which would
otherwise (but for these subordination provisions) be payable or
deliverable in respect of such Subordinated Debt shall be paid or
delivered directly to the holders of New Notes in accordance with
the priorities then existing among such holders until all the
Senior Debt shall have been paid in full. If any payment or
distribution of any character or any security, whether in cash,
securities or other property (other than Permitted Junior
Securities), shall be received by any holder of such Subordinated
Debt in contravention of any of the terms hereof and before all the
Senior Debt shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the
holders of the New Notes at the time outstanding in accordance with
the priorities then existing among such holders for application to
the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay all such Senior Debt in full.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of
Trust Indenture Act Section Indenture Section
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . .608
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .608
(a)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . .608
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608, 609
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .612
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .612
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1). . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .704
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3). . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(f) . . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . .602, 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316(a)(last sentence). . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .107
Note:This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. . . . . . . . . . . . . . . . 2
Section 102. Compliance Certificates and Opinions . . . 19
Section 103. Form of Documents Delivered to Trustee . . 20
Section 104. Acts of Holders. . . . . . . . . . . . . . 21
Section 105. Notices, Etc., to Trustee and the Company. 22
Section 106. Notice to Holders; Waiver. . . . . . . . . 23
Section 107. Conflict with Trust Indenture Act. . . . . 23
Section 108. Effect of Headings and Table of Contents . 24
Section 109. Successors and Assigns . . . . . . . . . . 24
Section 110. Separability Clause. . . . . . . . . . . . 24
Section 111. Benefits of Indenture. . . . . . . . . . . 24
Section 112. Governing Law. . . . . . . . . . . . . . . 24
Section 113. Legal Holidays . . . . . . . . . . . . . . 24
Section 114. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from
Individual Liability . . . . . . . . . . . 25
Section 115. Counterparts . . . . . . . . . . . . . . . 26
ARTICLE TWO
FORMS OF NOTES
Section 201. Forms Generally. . . . . . . . . . . . . . 26
Section 202. Form of Face of Note . . . . . . . . . . . 26
Section 203. Form of Reverse of Note. . . . . . . . . . 29
Section 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 33
Section 205. Form of Assignment . . . . . . . . . . . . 33
Section 206. Form of Option of Holder to Elect Redemption 34
ARTICLE THREE
THE NOTES
Section 301. Title and Terms. . . . . . . . . . . . . . . . 34
Section 302. Denominations. . . . . . . . . . . . . . . . . 36
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . 36
Section 304. Temporary Notes. . . . . . . . . . . . . . . . 37
Section 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 38
Section 306. Mutilated, Destroyed, Lost and Stolen Notes . .39
Section 307. Payment of Interest; Interest Rights Preserved 40
Section 308. Persons Deemed Owners. . . . . . . . . . . . . 42
Section 309. Cancellation . . . . . . . . . . . . . . . . . 42
Section 310. Computation of Interest. . . . . . . . . . . . 43
Section 311. CUSIP Numbers. . . . . . . . . . . . . . . . . 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction, Discharge of the Indenture and
Defeasance of the Notes. . . . . . . . . . . 43
Section 402. Termination of Obligations upon Cancellation
of the Notes. .. . . . . . . . . . . . . . . 45
Section 403. Survival of Certain Obligations. . . . . . . 46
Section 404. Acknowledgement of Discharge by Trustee. . . 46
Section 405. Application of Trust Money . . . . . . . . . 46
Section 406. Repayment to the Company . . . . . . . . . . 47
Section 407. Reinstatement. . . . . . . . . . . . . . . . 47
Section 408. Indemnity. . . . . . . . . . . . . . . . . . 47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. . . . . . . . . . . . . 48
Section 502. Acceleration of Maturity Date; Rescission and
Annulment. . . . . . . . . . . . . . . . . 50
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 52
Section 504. Trustee May File Proofs of Claim . . . . . 53
Section 505. Trustee May Enforce Claims Without Possession
of Notes. .. . . . . . . . . . . . . . . . 54
Section 506. Application of Money Collected . . . . . . 54
Section 507. Limitation on Suits. . . . . . . . . . . . 55
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . 56
Section 509. Restoration of Rights and Remedies . . . . 56
Section 510. Rights and Remedies Cumulative . . . . . . 56
Section 511. Delay or Omission Not Waiver . . . . . . . 57
Section 512. Control by Holders . . . . . . . . . . . . 57
Section 513. Waiver of Past Default.. . . . . . . . . . 57
Section 514. Undertaking for Costs. . . . . . . . . . . 58
Section 515. Waiver of Stay or Extension Laws . . . . . 58
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. . . . 59
Section 602. Notice of Defaults . . . . . . . . . . . . 60
Section 603. Certain Rights of Trustee. . . . . . . . . 61
Section 604. Not Responsible for Recitals or Issuance of
Notes . . . . . . . . . . . . . . . . . . 62
Section 605. May Hold Notes . . . . . . . . . . . . . . 62
Section 606. Money Held in Trust. . . . . . . . . . . . 63
Section 607. Compensation and Reimbursement . . . . . . 63
Section 608. Corporate Trustee Required; Eligibility. . 64
Section 609. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . 65
Section 610. Acceptance of Appointment by Successor . . 66
Section 611. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 67
Section 612. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 67
Section 613. Appointment of Authenticating Agent. . . . 67
Section 614. Paying Agent . . . . . . . . . . . . . . . 68
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 69
Section 702. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . 70
Section 703. Reports by Trustee . .. . . . . . . . . . 71
Section 704. Reports by Company . . . . . . . . . . . 73
Section 705. Certain Obligations of the Trustee . . . 75
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. The Company May Consolidate, etc., Only on
Certain Terms. . . . . . . . . . . . . .. 75
Section 802. Successor Substituted for the Company. . . . . 77
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . .77
Section 902. Amendments, Supplemental Indentures and
Waivers with Consent of Holders. . . . . . . .78
Section 903. Execution of Amendment or Supplemental
Indentures. . . . . . . . . . . . . . . . . .79
Section 904. Effect of Amendment or Supplemental
Indentures . . . . . . . . . . . . . . . . . 80
Section 905. Conformity with Trust Indenture Act. . . . . .80
Section 906. Reference in Notes to Amendments or Supplemental
Indentures . . . . . . . . . . . . . . . . . 80
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest . .80
Section 1002. Maintenance of Office or Agency. . . . . . . .81
Section 1003. Money for Note Payments to Be Held in Trust . 81
Section 1004. Statements of Officers of the Company as to De-
fault; Notice of Default . . . . . . . . . . .83
Section 1005. Existence. . . . . . . . . . . . . . . . . . .84
Section 1006. Maintenance of Properties; Insurance . . . . 84
Section 1007. Payment of Taxes and Other Claims. . . . . . .85
Section 1008. Further Instruments and Acts . . . . . . . . .85
Section 1009. Limitation on Indebtedness . . . . . . . . . .85
Section 1010. Limitation on Restricted Payments. . . . . . .86
Section 1011. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries. . . . . 88
Section 1012. Limitation on Transactions with Affiliates . .88
Section 1013. Disposition of Proceeds of Asset Sale. . . . .89
Section 1014. Guarantees of Indebtedness . . . . . . . . . .91
Section 1015. Limitation on Certain Liens. . . . . . . . . 92
Section 1016. Investments. . . . . . . . . . . . . . . . . .93
Section 1017. Conduct of Business. . . . . . . . . . . . . .93
Section 1018. Limitations on Subordinated Debt . . . . . . .93
ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 1101. Right of Redemption. . . . . . . . . . . . . 94
Section 1102. Applicability of Article . . . . . . . . . . .94
Section 1103. Election to Redeem; Notice to Trustee. . . . 94
Section 1104. Selection by Trustee of Notes to Be Redeemed .94
Section 1105. Notice of Redemption.. . . . . . . . . . . . 95
Section 1106. Deposit of Redemption Price. . . . . . . . . 96
Section 1107. Notes Payable on Redemption Date . . . . . . 96
Section 1108. Notes Redeemed in Part . . . . . . . . . . . 97
Section 1109. Offer to Purchase Upon a Change in Control . 97
EXHIBIT A
INDENTURE
KASH N' KARRY FOOD STORES, INC., Issuer
AND
SHAWMUT BANK CONNECTICUT, N.A., Trustee
11.5% Senior Fixed Rate Notes due 2003
Dated as of December 29, 1994