EXHIBIT 4.3.1
[Form of Trust Supplement]
This Trust Supplement No. ____-____, dated as of March __, 1994
(herein called the "Trust Supplement"), between Smith's Food & Drug
Centers, Inc., a Delaware corporation (the "Company"), and Wilmington Trust
Company, a Delaware banking corporation (the "Trustee"), to the Pass
Through Trust Agreement, dated as of December 21, 1993, between the Company
and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered the Basic Agreement, unlimited as to the aggregate principal
amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings
specified heretofore in the Basic Agreement) which may be issued
thereunder;
WHEREAS, the Owner Trustee, acting on behalf of an Owner
Participant, will issue, on a non-recourse basis, Notes, among other
things, to finance the outstanding debt portion of the purchase price of
each Property purchased by such Owner Trustee and leased to the Company
pursuant to the related Lease;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement as supplemented by this Trust Supplement (the "Agreement"), the
Trustee shall purchase such Notes issued by such Owner Trustee of the same
tenor as the Certificates issued hereunder and shall hold such Notes in
trust for the benefit of the Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding
and legal instrument in accordance with its terms and for the purposes
herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the
terms hereof have been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is
agreed between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Trust and Certificates. (a) The Trustee
hereby declares the creation of this Trust (the "___-___ Trust") for the
benefit of the Certificateholders, and the initial Certificateholders as
the grantors of the ___-___ Trust, by their respective acceptances of the
Certificates, join in the creation of this ___-___ Trust with the Trustee;
and (b)
there is hereby created a series of Certificates to be issued under the
Agreement to be distinguished and known as "Pass Through Certificates,
Series ____-____" (hereinafter defined as the "Series ____-____
Certificates"). Each Certificate represents a Fractional Undivided
Interest in the ____-____ Trust created hereby. The terms and conditions
applicable to the Series ____-____ Certificates are as follows:
1. The aggregate principal amount of the Series ___-___
Certificates that shall be authenticated under the Agreement (except
for Series ___-___ Certificates, if any, authenticated and delivered
pursuant to Section 3.03, 3.04 and 3.05 of the Basic Agreement) upon
their initial issuance is $ .
2. The Cut-off Date is June 2, 1994.
3. The Regular Distribution Dates with respect to any payment of
Scheduled Payments means each January 2 and July 2, commencing
, 199_ until payment of all of the Scheduled Payments to be
made under the Notes has been made.
4. The Scheduled Payments shall be as set forth in Schedule 1
hereto.
5. The Special Distribution Dates are as follows: (i) when used
with respect to the redemption or purchase of any Notes, the day
(which shall be a Business Day) on which such redemption or purchase
is scheduled to occur pursuant to the terms of the applicable
Indenture and (ii) when used with respect to a Special Payment other
than as described in clause (i) above, 20 days after the last date on
which the Trustee must give notice pursuant to Section 4.02(c) of the
Basic Agreement (or the next Business Day after such 20th day if such
date is not a Business Day).
6. The Series ____-____ Certificates shall be in the form
attached hereto as Exhibit A. The Series ____-____ Certificates shall
be Book-Entry Certificates and shall be subject to the conditions set
forth in the Letter of Representations between the Company and the
Clearing Agency attached hereto as Exhibit B.
7. The proceeds of the Series ____-____ Certificates shall be
used to purchase the Notes in the principal amounts specified below:
Principal
Note Amount Maturity
8. The Owner Trustee, acting on behalf of an Owner
Participant, will issue on a non-recourse basis, the related Notes,
the proceeds of which shall be used, among other things, to finance
or refinance all or a portion of the outstanding debt portion of
the purchase price of the following Properties:
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following
capitalized term has the following meaning:
Specified Investments: With respect to any Trust, means (i)
obligations of, or guaranteed by, the United States Government or
agencies thereof, (ii) open market commercial paper of any
corporation incorporated under the laws of the United States of
America or any State thereof rated at least P-2 or its equivalent
by Moody's Investors Service, Inc. or at least A-2 or its
equivalent by Standard & Poor's Corporation, (iii) certificates of
deposit issued by commercial banks organized under the laws of the
United States or of any political subdivision thereof having a
combined capital and surplus in excess of $500,000,000 which banks
or their holding companies have a rating of A or its equivalent by
Moody's Investment Service, Inc. or Standard & Poor's Corporation;
provided, however, that the aggregate amount at any one time so
invested in certificates of deposit issued by any one bank shall
not exceed 5% of such bank's capital and surplus, (iv) U.S. dollar
denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in (iii) or any
subsidiary thereof and (v) repurchase agreements with any
financial institution having combined capital and surplus of at
least $500,000,000 with any of the obligations described in (i)
through (iv) as collateral; provided that if all of the above
investments are unavailable, the entire amounts to be invested may
be used to purchase federal funds from an entity described in
clause (iii) above; and provided further that no investment shall
be eligible as a "specified investment" unless the final maturity
date or date of return of such investment is on or before (x) the
scheduled date for the purchase of such Notes, or (y) if no date
has been scheduled for the purchase of such Notes, the next
business day, or (z) if the Company has given notice that such
Notes will not be purchased, the next applicable Special
Distribution Date. Earnings on such investments in the escrow
account for each Trust will be paid to the Company periodically,
and the Company will be responsible for any losses.
ARTICLE III
THE TRUSTEE
Section 3.01. The Trustee. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity
or sufficiency of this Trust Supplement or the due execution hereof by
the Company.
Except as herein otherwise provided, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed by the Trustee by reason of this Trust Supplement other than as
set forth in the Basic Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and
conditions set forth in the Basic Agreement, upon the effectiveness
thereof, as fully to all intents as if the same were herein set forth at
length.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Basic Agreement Ratified. Except and so far as
herein expressly provided, all of the provisions, terms and conditions
of the Basic Agreement are in all respects ratified and confirmed; and
the Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument.
Section 4.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE
SERIES ____-____ CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 4.03. Execution in Counterparts. This Trust
Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section 4.04 Notices. Whenever the Trustee shall receive any
notice pursuant to or in respect of the Agreement, the Trustee shall
promptly deliver a copy of such notice to Moody's Investor Service, Inc.
at ___________ and to Standard & Poor's Corporation at ____________.
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Trust Supplement to be duly executed by their respective officers
thereto duly authorized, as of the day and year first written above.
SMITH'S FOOD & DRUG
CENTERS, INC.
By:
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC") to Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SMITH'S FOOD & DRUG CENTERS ____-____ PASS THROUGH TRUST
Pass Through
Certificate, Series ____-____
Issuance Date:
Final Distribution Date:
Evidencing A Fractional Undivided Interest In the ___-___
Trust, The Property Of Which Includes Certain Notes Each Secured
By A Property Leased To Smith's Food & Drug Centers, Inc.
Certificate
No. $ Fractional Undivided
Interest representing 0. % of the
Trust per $1,000 of Face Amount
THIS CERTIFIES THAT , for value received, is
the registered owner of a Fractional Undivided Interest in the amount of $
(the "Face Amount") in the Smith's Food & Drug Centers ____-____ Pass
Through Trust (the "Trust") created by Wilmington Trust Company, a Delaware
banking corporation, as trustee (the "Trustee"), pursuant to a Pass Through
Trust Agreement, dated as of December 21, 1993 (the "Basic Agreement"), as
supplemented by Trust Supplement No. ____-____ thereto, dated as of
________ __, 199_ (collectively, the "Agreement"), between the Trustee and
Smith's Food & Drug Centers, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "Pass Through Certificates, ____-
____" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Certificateholder of this Certificate by virtue of the
acceptance hereof assents and by which such Certificateholder is bound.
The property of the Trust includes certain Notes (the "Trust Property").
Each issue of the Notes is secured by a security interest in an aircraft
leased to the Company.
Each of the Certificates represents a Fractional Undivided
Interest in the Trust and the Trust Property and has no rights, benefits or
interest in respect of any other separate trust established pursuant to the
terms of the Basic Agreement for any other series of certificates issued
pursuant thereto. The undivided percentage interest in the Trust
represented by each of this Certificate (as specified above) and the other
Pass Through Certificates, Series ____-____, was determined on the basis of
(x) the aggregate of the Face Amount of this Certificate (as specified
above) and of the other Pass Through Certificates, Series ____-____ and (y)
the aggregate original principal amounts of the Notes constituting the
Trust Property.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each
__________ and _____ (a Regular Distribution Date"), commencing on
, 199_, to the Person in whose name this Certificate is registered
at the close of business on the 15th day preceding the Regular Distribution
Date, an amount in respect of the Scheduled Payments on the Notes due on
such Regular Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such
Scheduled Payments. Subject to and in accordance with the terms of the
Agreement, in the event that Special Payments on the Notes are received by
the Trustee, from funds then available to the Trustee, there shall be
distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered at the close of business on the
15th day preceding the Special Distribution Date, an amount in respect of
such Special Payments on the Notes, the receipt of which has been confirmed
by the Trustee, equal to the product of the percentage interest in the
Trust evidenced by this Certificate and an amount equal to the sum of such
Special Payments so received. If a Regular Distribution Date or Special
Distribution Date is not a Business Day, distribution shall be made on the
immediately following Business Day with the same force and effect as if
made on such Regular Distribution Date or Special Distribution Date and no
interest shall accrue during the intervening period. The Trustee shall
mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after notice mailed by
the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency of the Trustee
specified in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right or payment,
all as more specifically set forth herein and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement
shall be made only from the Trust Property and only to the extent that the
Trustee shall have sufficient income or proceeds from the Trust Property to
make such payments in accordance with the terms of the Agreement. Each
Certificateholder of this Certificate, by its acceptance hereof, agrees
that it will look solely to the income and proceeds from the Trust Property
to the extent available for distribution to such Certificateholder as
provided in the Agreement. This Certificate does not purport to summarize
the Agreement and reference is made to the Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby. A copy of the Agreement may be examined during
normal business hours at the principal office of the Trustee, and at such
other places, if any, designated by the Trustee, by any Certificateholder
upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Certificateholders under the Agreement at
any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust.
Any such consent by the Certificateholder of this Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
set forth, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar,
or by any successor Registrar, in the Borough of Manhattan, the City of New
York, duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interests and integral multiples thereof. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing
the same aggregate Fractional Undivided Interest in the Trust, as requested
by the Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the
Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them
pursuant to the Agreement and the disposition of all property held as part
of the Trust Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed
by the Trustee, by manual signature, this Certificate shall not be entitled
to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
SMITH'S FOOD & DRUG CENTERS
____-____ PASS THROUGH TRUST
By: WILMINGTON TRUST COMPANY,
as Trustee
By:
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST
COMPANY,
as Trustee
By:
Authorized Officer
EXHIBIT B
[FORM OF LETTER OF REPRESENTATIONS]
SCHEDULE 1
Regular Distribution Date Scheduled Payment
FORM OF
TRUST SUPPLEMENT NO. ____-____
DATED AS OF MARCH , 1994
TO
PASS THROUGH TRUST
AGREEMENT
DATED AS OF DECEMBER 21, 1993
SMITH'S FOOD & DRUG CENTERS, INC.
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
$
% SMITH'S FOOD & DRUG CENTERS ____-____ Pass Through Trust
PASS THROUGH CERTIFICATES, SERIES ____-____
TRUST SUPPLEMENT NO. ____-____
DATED AS OF MARCH, 1994
Series ____-____ Pass Through Certificates
Table of Contents
ARTICLE I
THE CERTIFICATES
Page
Section 1.01 The Trust and Certificates 2
ARTICLE II
DEFINITIONS
Section 2.01 Definitions 3
ARTICLE III
THE TRUSTEE
Section 3.01 The Trustee 4
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 Basic Agreement Ratified . 4
Section 4.02 Governing Law 5
Section 4.03 Execution in Counterparts 5
Section 4.04 Notices 5
Exhibit A Form of Certificate
Exhibit B Form of Letter of Representations
Schedule 1 Scheduled Payments