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FLEMING COMPANIES, INC.
ISSUER
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
TRUSTEE
THE SUBSIDIARY GUARANTORS NAMED HEREIN
GUARANTORS
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Indenture
Dated as of , 1994
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$150,000,000
Floating Rate Senior Notes due 2001
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FLEMING COMPANIES, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF , 1994
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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Section310 (a)(1) .................................................................................... 607[(a)]
(a)(2) .................................................................................... 607[(a)]
(b) .................................................................................... [607(b),] 608
Section312 (c) .................................................................................... 701
Section314 (a) .................................................................................... 703
(a)(4) .................................................................................... 1008(a)
(c)(1) .................................................................................... 102
(c)(2) .................................................................................... 102
(e) .................................................................................... 102
Section315 (b) .................................................................................... 601
Section316 (a)(last
sentence) .................................................................................... 101 ("Outstanding")
(a)(1)(A) .................................................................................... 502, 512
(a)(1)(B) .................................................................................... 513
(b) .................................................................................... 508
(c) .................................................................................... 104(d)
Section317 (a)(1) .................................................................................... 503
(a)(2) .................................................................................... 504
(b) .................................................................................... 1003
Section318 (a) .................................................................................... 111
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
SECTION PAGE
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PARTIES..............................................................................
RECITALS OF THE COMPANY..............................................................
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions..........................................................................
Acquired Indebtedness................................................................
Act..................................................................................
Affiliate............................................................................
Applicable LIBOR Rate................................................................
Average Life to Stated Maturity......................................................
Bankruptcy Law.......................................................................
Banks................................................................................
Board of Directors...................................................................
Board Resolution.....................................................................
Business Day.........................................................................
Business Development Program.........................................................
Business Development Venture.........................................................
Capital Lease Obligation.............................................................
Capital Stock........................................................................
Change of Control....................................................................
Change of Control Purchase Date......................................................
Change of Control Purchase Offer.....................................................
Change of Control Purchase Price.....................................................
Change of Control Triggering Event...................................................
Commission...........................................................................
Common Stock.........................................................................
Company..............................................................................
Company Request or Company Order.....................................................
Consolidated.........................................................................
Consolidated Fixed Charge Coverage Ratio.............................................
Consolidated Income Tax Expense......................................................
Consolidated Interest Expense........................................................
Consolidated Net Income..............................................................
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
SECTION PAGE
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Consolidated Net Tangible Assets.....................................................
Consolidated Non-Cash Charges........................................................
Corporate Trust Office...............................................................
Corporation..........................................................................
Credit Agreement.....................................................................
Currency Agreements..................................................................
Default..............................................................................
Defaulted Interest...................................................................
Equity Store.........................................................................
Event of Default.....................................................................
Exchange Act.........................................................................
Floating Rate Note Indenture.........................................................
Floating Rate Notes..................................................................
Generally Accepted Accounting Principles.............................................
Guaranteed Debt......................................................................
Guaranteed Obligations...............................................................
Holder...............................................................................
Indebtedness.........................................................................
Indenture............................................................................
Initial Quarterly Period.............................................................
Interest Payment Date................................................................
Interest Rate Agreements.............................................................
Interest Rate Determination Date.....................................................
Investment...........................................................................
Investment Grade.....................................................................
LIBOR Fraction.......................................................................
Lien.................................................................................
Managing Agent.......................................................................
Maturity.............................................................................
Moody's..............................................................................
Note Guarantee.......................................................................
Notes................................................................................
Offering.............................................................................
Officers' Certificate................................................................
Opinion of Counsel...................................................................
Outstanding..........................................................................
Paying Agent.........................................................................
iii
SECTION PAGE
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Permitted Indebtedness...............................................................
Permitted Investment.................................................................
Permitted Liens......................................................................
Permitted Receivables Financing......................................................
Person...............................................................................
Predecessor Note.....................................................................
Preferred Stock......................................................................
Principal Property...................................................................
Prior Indentures.....................................................................
Public Equity Offering...............................................................
Qualified Capital Stock..............................................................
Quarterly Period.....................................................................
Rating Agency........................................................................
Rating Category......................................................................
Rating Decline.......................................................................
Redeemable Capital Stock.............................................................
Redemption Date......................................................................
Redemption Price.....................................................................
Reference Banks......................................................................
Regular Record Date..................................................................
Responsible Officer..................................................................
Reuters Screen LIBO Page.............................................................
Securities Act.......................................................................
Security Register and Security Registrar.............................................
Senior Indebtedness..................................................................
Significant Subsidiary...............................................................
S&P..................................................................................
Special Record Date..................................................................
Stated Maturity......................................................................
Subordinated Indebtedness............................................................
Subsidiary...........................................................................
Subsidiary Guarantor.................................................................
Temporary Cash Investments...........................................................
Transferred Receivables..............................................................
Trust Indenture Act or TIA...........................................................
Trustee..............................................................................
U.S. Government Obligations..........................................................
iv
SECTION PAGE
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Vice President.......................................................................
Voting Stock.........................................................................
Wholly Owned Subsidiary..............................................................
Working Day..........................................................................
SECTION 102. Compliance Certificates and Opinions.................................................
103. Form of Documents Delivered to Trustee...............................................
104. Acts of Holders......................................................................
105. Notices, Etc., to Trustee, Company and Subsidiary Guarantors.........................
106. Notice to Holders; Waiver............................................................
107. Effect of Headings and Table of Contents.............................................
108. Successors and Assigns...............................................................
109. Separability Clause..................................................................
110. Benefits of Indenture................................................................
111. Governing Law........................................................................
112. Legal Holidays.......................................................................
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally......................................................................
202. Form of Face of Note.................................................................
203. Form of Reverse of Note..............................................................
204. Form of Trustee's Certificate of Authentication......................................
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms......................................................................
302. Denominations........................................................................
303. Execution, Authentication, Delivery and Dating.......................................
304. Temporary Notes......................................................................
305. Registration, Registration of Transfer and Exchange..................................
306. Mutilated, Destroyed, Lost and Stolen Notes..........................................
307. Payment of Interest; Interest Rights Preserved.......................................
308. Persons Deemed Owners................................................................
309. Cancellation.........................................................................
310. CUSIP Numbers........................................................................
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SECTION PAGE
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..............................................
402. Application of Trust Money...........................................................
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................................................
502. Acceleration of Maturity; Rescission and Annulment...................................
503. Collection of Indebtedness and Suits for Enforcement by Trustee......................
504. Trustee May File Proofs of Claim.....................................................
505. Trustee May Enforce Claims Without Possession of Notes...............................
506. Application of Money Collected.......................................................
507. Limitation on Suits..................................................................
508. Unconditional Right of Holders to Receive Principal, Premium and Interest............
509. Restoration of Rights and Remedies...................................................
510. Rights and Remedies Cumulative.......................................................
511. Delay or Omission Not Waiver.........................................................
512. Control by Holders...................................................................
513. Waiver of Past Defaults..............................................................
514. Waiver of Stay or Extension Laws.....................................................
515. Notice of Defaults...................................................................
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults...................................................................
602. Certain Rights of Trustee............................................................
603. Trustee Not Responsible for Recitals or Issuance of Notes............................
604. May Hold Notes.......................................................................
605. Money Held in Trust..................................................................
606. Compensation and Reimbursement.......................................................
607. Corporate Trustee Required; Eligibility..............................................
608. Resignation and Removal; Appointment of Successor....................................
609. Acceptance of Appointment by Successor...............................................
610. Merger, Conversion, Consolidation or Succession to Business..........................
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SECTION PAGE
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS
SECTION 701. Disclosure of Names and Addresses of Holders.........................................
702. Reports by Trustee...................................................................
703. Reports by Company and Subsidiary Guarantors.........................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.................................
802. Successor Substituted................................................................
803. Notes to Be Secured in Certain Events................................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................................
902. Supplemental Indentures With Consent of Holders......................................
903. Execution of Supplemental Indentures.................................................
904. Effect of Supplemental Indentures....................................................
905. Conformity with Trust Indenture Act..................................................
906. Reference in Notes to Supplemental Indentures........................................
907. Notice of Supplemental Indentures....................................................
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest..................................
1002. Maintenance of Office or Agency......................................................
1003. Money for Note Payments to Be Held in Trust..........................................
1004. Corporate Existence..................................................................
1005. Payment of Taxes and Other Claims....................................................
1006. Maintenance of Properties............................................................
1007. Insurance............................................................................
1008. Statement by Officers as to Default..................................................
1009. Purchase of Notes Upon a Change of Control Triggering Event..........................
1010. Limitation on Indebtedness...........................................................
1011. Limitation on Restricted Payments....................................................
1012. Limitation on Liens..................................................................
1013. Additional Guarantees................................................................
1014. Provision of Financial Statements....................................................
1015. Waiver of Certain Covenants..........................................................
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SECTION PAGE
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ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption..................................................................
1102. Applicability of Article.............................................................
1103. Election to Redeem; Notice to Trustee................................................
1104. Selection by Trustee of Notes to Be Redeemed.........................................
1105. Notice of Redemption.................................................................
1106. Deposit of Redemption Price..........................................................
1107. Notes Payable on Redemption Date.....................................................
1108. Notes Redeemed in Part...............................................................
ARTICLE TWELVE
NOTE GUARANTEES
SECTION 1201. Note Guarantees......................................................................
1202. Obligations of the Subsidiary Guarantors Unconditional...............................
1203. Ranking of Note Guarantee............................................................
1204. Limitation of Note Guarantees........................................................
1205. Release of Subsidiary Guarantors.....................................................
1206. Subsidiary Guarantors May Consolidate, Etc. on Certain Terms.........................
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.........................
1302. Defeasance and Discharge.............................................................
1303. Covenant Defeasance..................................................................
1304. Conditions to Defeasance or Covenant Defeasance......................................
1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions............................................................
1306. Reinstatement........................................................................
ARTICLE FOURTEEN
SINKING FUND
SECTION 1401. Mandatory Sinking Fund Payments......................................................
1402. Satisfaction of Sinking Fund Payments with Notes.....................................
1403. Redemption of Notes for Sinking Fund.................................................
INDENTURE, dated as of , 1994 among FLEMING COMPANIES, INC., a
corporation duly organized and existing under the laws of the State of Oklahoma
(herein called the "Company"), having its principal office at 6301 Waterford
Boulevard, P.O. Box 26647, Oklahoma City, Oklahoma 73126, each of the Subsidiary
Guarantors (as hereinafter defined), and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of Floating Rate
Senior Notes due 2001 (herein called the "Notes"), of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
This Indenture 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.
The Company, directly or indirectly, owns beneficially and of record 100% of
the Capital Stock of the Subsidiary Guarantors; the Company and the Subsidiary
Guarantors are members of the same consolidated group of companies and are
engaged in related businesses; the Subsidiary Guarantors will derive direct and
indirect economic benefit from the issuance of the Notes; accordingly, the
Subsidiary Guarantors have each duly authorized the execution and delivery of
this Indenture to provide for the Guarantee by each of them with respect to the
Notes as set forth in this Indenture.
All things necessary have been done 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, to make the Note Guarantees of
each of the Subsidiary Guarantors, when executed by the respective Subsidiary
Guarantors and delivered hereunder, the valid obligations of the respective
Subsidiary Guarantors, and to make this Indenture a valid agreement of the
Company and each of the Subsidiary Guarantors, in accordance with their and its
terms.
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 of the Notes, 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:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
2
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating paper",
as used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; PROVIDED, HOWEVER, that
with respect to any computation required pursuant to Sections 1009, 1010,
1011 and 1012, such term shall mean such accounting principles as are
generally accepted as of the date of the Indenture; and
(d) 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.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable LIBOR Rate" means for each Quarterly Period during which any
Floating Rate Note is outstanding subsequent to the Initial Quarterly Period,
[ ] basis points over the rate determined by the Company (notice of such rate
to be sent to the Trustee by the Company on the date of determination thereof)
equal to the average (rounded upwards, if necessary, to the nearest 1/16 of 1%)
of the offered rates for deposits in U.S. dollars for a period of three months,
as set forth on the Reuters Screen LIBO Page as of 11:00 a.m., London time, on
the Interest Rate Determination Date for such Quarterly Period; PROVIDED,
HOWEVER, that if only one such offered rate appears on the Reuters Screen LIBO
Page, the Applicable LIBOR Rate for such Quarterly Period will mean such offered
rate. If such rate is not available at 11:00 a.m., London time, on the Interest
Rate Determination Date for such Quarterly Period, then the Applicable LIBOR
Rate for such Quarterly Period will mean the arithmetic mean (rounded upwards,
if necessary, to the nearest 1/16 of 1%) of the interest rates per annum at
which deposits in amounts equal to $1 million in U.S. dollars are offered by the
Reference Banks to leading banks in the London Interbank Market for a period of
three months as of 11:00 a.m., London time, on the Interest Rate Determination
Date for such Quarterly Period. If on any Interest Rate Determination Date, at
least two of the
3
Reference Banks provide such offered quotations, then the Applicable LIBOR Rate
for such Quarterly Period will be determined in accordance with the preceding
sentence on the basis of the offered quotations of those Reference Banks
providing such quotations; PROVIDED, HOWEVER, that if fewer than two of the
Reference Banks are so quoting such interest rates as mentioned above, the
Applicable LIBOR Rate for such Quarterly Period shall be deemed to be the
applicable LIBOR Rate for the next preceding Quarterly Period and in the case of
the Quarterly Period next succeeding the Initial Quarterly Period, the
Applicable LIBOR Rate shall be [ ]%. Notwithstanding the foregoing, the
Applicable LIBOR Rate for the Initial Quarterly Period shall be [ ]%.
"Average Life to Stated Maturity" means, as of the date of determination
with respect to any Indebtedness, the quotient obtained by dividing (i) the sum
of the products of (A) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (B) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Banks" means the banks or other financial institutions from time to time
that are lenders under the Credit Agreement.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board, and, with respect to any Subsidiary
Guarantor, either the board of directors of such Subsidiary Guarantor or any
duly authorized committee of that 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, and, with respect to a Subsidiary
Guarantor, a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Subsidiary Guarantor to have been duly adopted by its Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Business Development Program" means the business practice of the Company
and its Subsidiaries of making or guaranteeing loans to, or making equity
investments in, third parties engaged in the retail grocery business in exchange
for long-term supply agreements with the Company or any Subsidiary.
"Business Development Venture" means any Person participating in the
Business Development Program and BFL of Tulsa, Inc., Butch's Finer Foods, Inc.,
South Ogden Super Duper, Inc., Stores located at 301 South Main, Smith Center,
KS 66967, 109 West Main Street, Inc., Route 417, Inc., Route 16, Inc. and Route
219, Inc.
4
"Capital Lease Obligation" means, with respect to any Person, any
obligations of such Person and its Subsidiaries on a Consolidated basis under
any capital lease of real or personal property which, in accordance with GAAP,
has been recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
partnership interests, participations or other equivalents (however designated)
of such Person's capital stock whether now outstanding or issued after the date
hereof, including, without limitation, all Common Stock and Preferred Stock of
such Person.
"Change of Control" means the occurrence of any of the following events: (i)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have beneficial ownership of all shares that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total outstanding
Voting Stock of the Company; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election to such
Board of Directors, or whose nomination for election by the shareholders of the
Company, was approved by a vote of 66 2/3% of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of such Board of Directors then in office; (iii) the
Company consolidates with or merges with or into any Person or conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any Person, or any Person consolidates with or merges into or with the
Company, in any such event pursuant to a transaction in which the outstanding
Voting Stock of the Company is changed into or exchanged for cash, securities or
other property, other than any such transaction where the outstanding Voting
Stock of the Company is not changed or exchanged at all (except to the extent
necessary to reflect a change in the jurisdiction of incorporation of the
Company) or where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for (x) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (y) cash, securities or other property (other than
Capital Stock of the surviving corporation) in an amount which could be paid by
the Company as a Restricted Payment under Section 1011 (and such amount shall be
treated as a Restricted Payment subject to Section 1011) and (B) immediately
after such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have beneficial ownership of all shares that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
total outstanding Voting Stock of the surviving corporation; or (iv) the Company
is liquidated or dissolved or adopts a plan of liquidation or dissolution other
than in a transaction which complies with Section 801.
"Change of Control Purchase Date" has the meaning specified in Section 1009.
"Change of Control Purchase Offer" has the meaning specified in Section
1009.
"Change of Control Purchase Price" has the meaning specified in Section
1009.
5
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Rating Decline.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture 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.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations and other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture, 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, any Vice Chairman, its President,
any Vice President, its Treasurer or an Assistant Treasurer, and delivered to
the Trustee.
"Consolidated" means, with respect to any Person, the consolidation of the
accounts of such Person and each of its subsidiaries if and to the extent the
accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP consistently
applied.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for any
period, the ratio of (a) the sum of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated Non-Cash
Charges deducted in computing Consolidated Net Income, in each case, for such
period, of the Company and its Subsidiaries on a Consolidated basis, all
determined in accordance with GAAP to (b) Consolidated Interest Expense for such
period; PROVIDED that (i) in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness computed on a PRO FORMA
basis and (A) 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 and (B) which was not outstanding during the period for which the
computation is being made but which bears, at the option of the Company, a fixed
or floating rate of interest, shall be computed by applying, at the option of
the Company, either the fixed or floating rate; (ii) in making such computation,
Consolidated Interest Expense attributable to interest on any Indebtedness under
a revolving credit facility computed on a PRO FORMA basis shall be computed
based upon the average daily balance of such Indebtedness during the applicable
period; and (iii) in making such computation, Consolidated Interest Expense
attributable to interest on Indebtedness constituting obligations in connection
with any letters of credit and acceptances issued under letter of credit
facilities, acceptance facilities or other similar facilities computed on a PRO
FORMA basis shall be computed excluding any contingent obligations and without
assuming that any undrawn letter of credit has been drawn.
"Consolidated Income Tax Expense" means for any period the provision for
federal, state, local and foreign income taxes of the Company and its
Subsidiaries for such period as determined on a Consolidated basis in accordance
with GAAP.
6
"Consolidated Interest Expense" means, without duplication, for any period,
the sum of (a) the interest expense of the Company and its Subsidiaries for such
period, as determined on a Consolidated basis in accordance with GAAP including,
without limitation, (i) amortization of debt discount, (ii) the net cost under
Interest Rate Agreements (including amortization of discount), (iii) the
interest portion of any deferred payment obligation and (iv) accrued interest,
plus (b) the aggregate amount for such period of dividends on any Redeemable
Capital Stock or Preferred Stock of the Company and its Subsidiaries, (c) the
interest component of the Capital Lease Obligations paid, accrued and/or
scheduled to be paid, or accrued by such Person during such period and (d) all
capitalized interest of the Company and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the Consolidated net income
(or loss) of the Company and its Subsidiaries for such period as determined on a
Consolidated basis in accordance with GAAP, adjusted, to the extent included in
calculating such net income (loss), by excluding, without duplication, (i) any
net after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (ii) the $101.3 million facilities consolidation and restructuring
charge originally reflected in the Company's audited Consolidated statement of
earnings for the year ended December 25, 1993, (iii) the portion of net income
(or loss) of the Company and its Subsidiaries determined on a Consolidated basis
allocable to minority interests in unconsolidated Persons to the extent that
cash dividends or distributions have not actually been received by the Company
or any Subsidiary, (iv) net income (or loss) of any Person combined with the
Company or any Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination, (v) net gains or losses (less all fees
and expenses relating thereto) in respect of dispositions of assets other than
in the ordinary course of business and (vi) the net income of any Subsidiary to
the extent that the declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its shareholders.
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the Consolidated balance sheet of the Company and its Consolidated
Subsidiaries, less the following: (1) current liabilities; (2) reserves for
depreciation and other asset valuation reserves; (3) intangible assets
including, without limitation, items such as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense; and (4) appropriate
adjustments on account of minority interests of other Persons holding stock in
any majority-owned Subsidiary of the Company.
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash charges of the Company and its
Subsidiaries for such period, as determined on a Consolidated basis in
accordance with GAAP (excluding any non-cash charges which require an accrual or
reserve for any future period).
"Corporate Trust Office" means a corporate trust office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Indenture is located at 2200 Ross
Avenue, 5th Floor, Dallas, Texas 75201.
"Corporation" includes corporations, associations, companies and business
trusts.
7
"Credit Agreement" means the Credit Agreement, dated as of July 19, 1994,
among the Company, the Banks, the Agents listed therein and the Managing Agent,
as such agreement may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Currency Agreements" means any spot or forward foreign exchange agreements
and currency swap, currency option or other similar financial agreements or
arrangements entered into by the Company or any of its Subsidiaries.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Equity Store" means a Person in which the Company or any of its
Subsidiaries has invested capital or to which it has made loans in accordance
with the business practice of the Company and its Subsidiaries of making equity
investments in Persons, and making or guaranteeing loans to such Persons, for
the purpose of assisting such Person in acquiring, remodeling, refurbishing,
expanding or operating one or more retail grocery stores and pursuant to which
such Person is permitted or required to reduce the Company's or the Subsidiary's
equity interest to a minority position over time (usually five to ten years).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Floating Rate Note Indenture" means the indenture dated as of ,
1994 among the Company, each of the Subsidiary Guarantors and Texas Commerce
Bank National Association, Trustee covering the Company's Floating Rate Notes.
"Floating Rate Notes" means the Floating Rate Senior Notes due 2001 and,
more particularly, means any notes authenticated and delivered under the
Floating Rate Note Indenture.
"Floating Rate Interest Payment Date" has the meaning specified in Section
301.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, as applied from time to
time by the Company in the preparation of its Consolidated financial statements.
"Guaranteed Debt" means, with respect to any Person, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness contained herein guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness other than to the Company, a Wholly Owned Subsidiary of the Company
or a Subsidiary Guarantor or to assure the holder of such Indebtedness other
than the Company, a Wholly Owned Subsidiary of the Company or a Subsidiary
Guarantor against loss, (iii) to supply funds to, or
8
in any other manner invest in, the debtor (including any agreement to pay for
property or services without requiring that such property be received or such
services be rendered), (iv) to maintain working capital or equity capital of the
debtor, or otherwise to maintain the net worth, solvency or other financial
condition of the debtor or (v) otherwise to assure a creditor against loss,
PROVIDED that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Guaranteed Obligations" has the meaning specified in Section 1201.
"Holder" means a Person in whose name a Note is registered in the Security
Register.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all liabilities of such Person for borrowed money (including overdrafts) or for
the deferred purchase price of property or services, excluding any trade
payables and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (ii) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (iii) all indebtedness of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
Capital Lease Obligations of such Person, (v) all obligations under Interest
Rate Agreements or Currency Agreements of such Person, (vi) all Indebtedness
referred to in clauses (i) through (v) above of other Persons and all dividends
of other Persons, the payment of which is secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vii) all
Guaranteed Debt of such Person, (viii) all Redeemable Capital Stock valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any liability of the
types referred to in clauses (i) through (viii) above. For purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Redeemable Capital Stock, such fair market value is to
be determined in good faith by the Board of Directors of the issuer of such
Redeemable Capital Stock.
"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.
"Initial Quarterly Period" means the period from and including ,
1994 through and including , 1995.
9
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Agreements" means any interest rate protection agreements and
other types of interest rate hedging agreements (including, without limitation,
interest rate swaps, caps, floors, collars and similar agreements).
"Interest Rate Determination Date" means, with respect to each Quarterly
Period, the second Working Day prior to the first day of such Quarterly Period.
"Investment" means, with respect to any Person, directly or indirectly, any
advance (other than advances to customers in the ordinary course of business,
which are recorded as accounts receivable on the balance sheet of the Company
and its Subsidiaries), loan or other extension of credit or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities issued by any other Person.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by Moody's
or the equivalent of such ratings by S&P or Moody's or in the event Moody's or
S&P shall cease rating the Notes and the Company shall select any other Rating
Agency, the equivalent of such ratings by such other Rating Agency.
"LIBOR Fraction" means the actual number of days in the Initial Quarterly
Period or Quarterly Period, as applicable, divided by 360; PROVIDED, HOWEVER,
that the number of days in the Initial Quarterly Period and each Quarterly
Period shall be calculated by including the first day of such Initial Quarterly
Period or Quarterly Period and excluding the last.
"Lien" means any mortgage or deed of trust, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property or assets of any kind, real or personal,
movable or immovable.
"Managing Agent" means Morgan Guaranty Trust Company of New York as managing
agent under the Credit Agreement and any future managing agent under the Credit
Agreement.
"Maturity", when used with respect to the Notes, means the date on which the
principal of the Notes becomes due and payable as therein provided or as
provided in this Indenture, whether at Stated Maturity, purchase upon a Change
of Control Triggering Event or redemption date, and whether by declaration of
acceleration, Change of Control, call for redemption or purchase or otherwise.
"Moody's" means Moody's Investors Service, Inc. or any successor rating
agency.
"Note Guarantee" means any guarantee by a Subsidiary Guarantor of the
Company's obligations under this Indenture as set forth in Article Twelve of
this Indenture and any additional guarantee of the Notes pursuant to Section
1013 hereof.
"Notes" has the meaning stated in the first recital of this Indenture and,
more particularly, means any Notes authenticated and delivered under this
Indenture.
10
"Offering" means the sale of the Notes by the Company to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities Inc., as underwriters.
"Officers' Certificate" means a certificate signed by the Chairman, any Vice
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an officer or employee of the Company, and who shall
be acceptable to the Trustee.
"Outstanding", when used with respect to the 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 whose 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;
(iii) Notes, except to the extent provided in Sections 1302 and 1303,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Thirteen; and
(iv) Notes which have been 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 the Notes are
valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee actually
knows to be so owned shall be so disregarded. Notes so owned which 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 such other obligor.
11
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest on any Notes on behalf of the Company.
"Permitted Indebtedness" means any of the following Indebtedness of the
Company or any Subsidiary, as the case may be:
(i) Indebtedness of the Company and guarantees of the Subsidiary
Guarantors under the Credit Agreement (including Indebtedness of the Company
under Tranche A of the Credit Agreement to the extent that the aggregate
commitment thereunder does not exceed $900 million, the maximum aggregate
commitment for such facility on the date of this Indenture, and any
guarantees with respect thereto outstanding on the date of this Indenture
and any additional guarantees executed in connection therewith) in an
aggregate principal amount, together with Indebtedness, if any, incurred
pursuant to clauses (ii) and (xi) of this definition of "Permitted
Indebtedness", at any one time outstanding not to exceed $1.7 billion (after
giving PRO FORMA effect to the use of proceeds of the Offering) less
mandatory repayments actually made in respect of any term Indebtedness
thereunder;
(ii) Indebtedness of the Company under uncommitted bank lines of credit;
PROVIDED, HOWEVER, that the aggregate principal amount of Indebtedness
incurred pursuant to clauses (i), (ii) and (xi) of this definition of
"Permitted Indebtedness" does not exceed $1.7 billion (after giving PRO
FORMA effect to the use of proceeds of the Offering) less mandatory
repayments actually made in respect of any term Indebtedness thereunder;
(iii) Indebtedness of the Company evidenced by the Notes and the Note
Guarantees with respect thereto under this Indenture;
(iv) Indebtedness of the Company evidenced by the Floating Rate Notes
and the Note Guarantees with respect thereto under the Floating Rate Note
Indenture;
(v) Indebtedness of the Company or any Subsidiary outstanding on the
date of this Indenture and listed on Schedule hereto;
(vi) obligations of the Company or any Subsidiary entered into in the
ordinary course of business (a) pursuant to Interest Rate Agreements
designed to protect against or manage exposure to fluctuations in interest
rates in respect of Indebtedness or retailer notes receivables, which, if
related to Indebtedness or retailer notes receivables, as the case may be,
do not exceed the aggregate notional principal amount of such Indebtedness
to which such Interest Rate Agreements relate, or (b) under any Currency
Agreements in the ordinary course of business and designed to protect
against or manage exposure to fluctuations in foreign currency exchange
rates which, if related to Indebtedness, do not increase the amount of such
Indebtedness other than as a result of foreign exchange fluctuations;
(vii) Indebtedness of the Company owing to a Wholly Owned Subsidiary or
of any Subsidiary owing to the Company or any Wholly Owned Subsidiary;
PROVIDED that any disposition, pledge (except any pledge under the Credit
Agreement or the Prior Indentures) or transfer of any such Indebtedness to a
Person (other than the Company or
12
another Wholly Owned Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the Company or Subsidiary, as the case may be, not permitted
by this clause (vii);
(viii) Indebtedness in respect of letters of credit, surety bonds and
performance bonds provided in the ordinary course of business;
(ix) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business; PROVIDED that
such Indebtedness is extinguished within five Business Days of its
incurrence;
(x) Indebtedness of the Company or any Subsidiary consisting of
guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets;
(xi) Indebtedness of the Company evidenced by commercial paper issued by
the Company; PROVIDED, HOWEVER, that the aggregate principal amount of
Indebtedness incurred pursuant to clauses (i), (ii) and (xi) of this
definition of "Permitted Indebtedness" does not exceed $1.7 billion (after
giving PRO FORMA effect to the use of proceeds of the Offering) less
mandatory repayments actually made in respect of any term Indebtedness
thereunder;
(xii) Indebtedness of the Company pursuant to guarantees by the Company
or any Subsidiary Guarantor in connection with any Permitted Receivables
Financing; PROVIDED, HOWEVER, that such Indebtedness shall not exceed 15% of
the book value of the Transferred Receivables or, in the case of receivables
arising from direct financing leases for retail electronics systems, 30% of
the book value thereof;
(xiii) Indebtedness of the Company and its Subsidiaries in addition to
that described in clauses (i) through (xii) of this definition of "Permitted
Indebtedness," together with any other outstanding Indebtedness incurred
pursuant to this clause (xiii), not to exceed $100 million at any time
outstanding in the aggregate; and
(xiv) any renewals, extensions, substitutions, refundings, refinancings
or replacements (each, a "refinancing") of any Indebtedness described in
clauses (iii), (iv) and (v) of this definition of "Permitted Indebtedness",
including any successive refinancings, so long as (A) the aggregate
principal amount of Indebtedness represented thereby is not increased by
such refinancing to an amount greater than such principal amount plus the
lesser of (x) the stated amount of any premium or other payment required to
be paid in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (y) the amount of premium or other payment
actually paid at such time to refinance the Indebtedness, plus, in either
case, the amount of expenses of the Company or Subsidiary, as the case may
be, incurred in connection with such refinancing and (B) such refinancing
does not reduce the Average Life to Stated Maturity or the Stated Maturity
of such Indebtedness.
"Permitted Investment" means (i) Investment in any Wholly Owned Subsidiary
or any Investment in any Person by the Company or any Wholly Owned Subsidiary as
a result of which such Person becomes a Wholly Owned Subsidiary or any
Investment in the Company
13
by a Wholly Owned Subsidiary; (ii) intercompany Indebtedness to the extent
permitted under clause (vii) of the definition of "Permitted Indebtedness";
(iii) Temporary Cash Investments; (iv) sales of goods on trade credit terms
consistent with the Company's past practices or otherwise consistent with trade
credit terms in common use in the industry; (v) Investments in direct financing
leases for equipment owned by the Company and leased to its customers in the
ordinary course of business consistent with past practice; (vi) Investments in
existence on the date of this Indenture; and (vii) any substitutions or
replacements of any Investment so long as the aggregate amount of such
Investment is not increased by such substitution or replacement.
"Permitted Liens" means, with respect to any Person:
(a) any Lien existing as of the date of this Indenture;
(b) any Lien arising by reason of (1) any judgment, decree or order of
any court, so long as such Lien is adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired; (2) taxes, assessments, governmental charges or levies not yet
delinquent or which are being contested in good faith; (3) security for
payment of workers compensation or other insurance; (4) security for the
performance of tenders, leases (including, without limitation, statutory and
common law landlord's liens) and contracts (other than contracts for the
payment of money); (5) zoning restrictions, easements, licenses,
reservations, title defects, rights of others for rights-of-way for
utilities, sewers, electric lines, telephone or telegraph lines and other
similar purposes, provisions, covenants, conditions, waivers and
restrictions on the use of property or minor irregularities of title (and
with respect to leasehold interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist and arising
by, through or under a landlord or owner of the leased property, with or
without consent of the lessee), none of which materially impairs the use of
any parcel of property material to the operation of the business of the
Company or any Subsidiary or the value of such property for the purpose of
such business; (6) deposits to secure public or statutory obligations; (7)
operation of law in favor of growers, dealers and suppliers of fresh fruits
and vegetables, carriers, mechanics, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums which are
not yet delinquent or are being contested in good faith by negotiations or
by appropriate proceedings which suspend the collection thereof; (8) the
grant by the Company to licensees, pursuant to security agreements, of
security interests in trademarks and goodwill, patents and trade secrets of
the Company to secure the damages, if any, of such licensees, resulting from
the rejection of the license of such licensees in a bankruptcy,
reorganization or similar proceeding with respect to the Company; or (9)
security for surety or appeal bonds;
(c) any extension, renewal, refinancing or replacement of any Lien on
property of the Company or any Subsidiary existing as of the date of this
Indenture and securing the Indebtedness under the Credit Agreement or the
Prior Indenture in an aggregate principal amount not to exceed the principal
amount of the Indebtedness outstanding as
14
permitted by clause (i) of the definition of "Permitted Indebtedness" so
long as no additional collateral is granted as security thereby; PROVIDED
that this clause (c) shall not apply to any Lien on such property that has
not been subject to a Lien for 30 days;
(d) any Lien on any property or assets of a Subsidiary in favor of the
Company or any Wholly Owned Subsidiary;
(e) any Lien securing Acquired Indebtedness created prior to (and not
created in connection with, or in contemplation of) the incurrence of such
Indebtedness by the Company or any Subsidiary; PROVIDED that such Lien does
not extend to any assets of the Company or any Subsidiary other than the
assets acquired in the transaction resulting in such Acquired Indebtedness
being incurred by the Company or Subsidiary, as the case may be;
(f) any Lien to secure the performance of bids, trade contracts,
letters of credit and other obligations of a like nature and incurred in the
ordinary course of business of the Company or any Subsidiary;
(g) any Lien securing any Interest Rate Agreements or Currency
Agreements permitted to be incurred pursuant to clause (v) of the definition
of "Permitted Indebtedness" or any collateral for the Indebtedness to which
such Interest Rate Agreements or Currency Agreements relate;
(h) any Lien securing the Notes;
(i) any Lien on an asset securing Indebtedness (including Capital Lease
Obligations) incurred or assumed for the purpose of financing all or any
part of the cost of acquiring or constructing such asset; PROVIDED that such
Lien attaches to such asset concurrently or within 180 days after the
acquisition or completion of construction thereof; and
(j) any Lien on real or personal property securing Capital Lease
Obligations of the Company or any Subsidiary as lessee with respect to such
real or personal property (1) to the extent that the Company or such
Subsidiary has entered into (and not terminated), or has a binding
commitment for, subleases on terms which, to the Company, are at least as
favorable, on a current basis, as the terms of the corresponding capital
lease or (2) under which the aggregate principal component of the annual
rent payable does not exceed $5,000,000;
(k) any Lien on a Financing Receivable or other receivable that is
transferred in a Permitted Receivables Financing;
(l) any Lien consisting of any pledge to any Person of Indebtedness
owed by any Subsidiary to the Company or any Wholly Owned Subsidiary;
PROVIDED that (i) such Subsidiary is a Subsidiary Guarantor and (ii) the
principal amount pledged does not exceed the Indebtedness secured by such
pledge;
(m) any extension, renewal, refinancing or replacement, in whole or in
part, of any Lien described in the foregoing clause (a) so long as no
additional collateral is granted as security thereby.
15
"Permitted Receivables Financing" means any transaction involving the
transfer (by way of sale, pledge or otherwise) by the Company or any of its
Subsidiaries of receivables to any other Person, PROVIDED that after giving
effect to such transaction the sum of (i) the aggregate uncollected balances of
the receivables so transferred ("Transferred Receivables") PLUS (ii) the
aggregate amount of all collections on Transferred Receivables theretofore
received by the seller but not yet remitted to the purchaser, in each case at
the date of determination, would not exceed $750,000,000.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred stock whether now outstanding or issued after the date of
this Indenture, including, without limitation, all classes and series of
preferred or preference stock of such Person.
"Principal Property" means any manufacturing or processing plant, office
facility, retail store, warehouse or distribution center, including, in each
case, the fixtures appurtenant thereto, located within the continental United
States and owned and operated now or hereafter by the Company or any Subsidiary
(other than an Equity Store or a Business Development Venture) and having a book
value on the date as of which the determination is being made of more than 2% of
Consolidated Net Tangible Assets.
"Prior Indentures" means the Indenture, dated March 15, 1986, between the
Company and Morgan Guaranty Trust Company of New York, as Trustee, covering $100
million aggregate principal amount of the Company's 9 1/2% Debentures due 2016
and the Indenture, dated December 1, 1989, between the Company and Morgan
Guaranty Trust Company of New York, as Trustee, covering $275 million aggregate
principal amount of the Company's Medium-Term Notes.
"Public Equity Offering" means a primary public offering of equity
securities of the Company pursuant to an effective registration statement under
the Securities Act with net cash proceeds of at least $50 million.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such Person other than Redeemable Capital Stock.
"Quarterly Period" means the period from and including a scheduled Floating
Rate Interest Payment Date through the day next preceding the following
scheduled Floating Rate Interest Payment Date.
16
"Rating Agency" means any of (i) S&P, (ii) Moody's or (iii) if S&P or
Moody's or both shall not make a rating of the Notes publicly available, a
security rating agency or agencies, as the case may be, nationally recognized in
the United States, selected by the Company, which shall be substituted for S&P
or Moody's or both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories); (ii) with respect to Moody's, any of the following categories: Aaa,
Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and
(iii) the equivalent of any such category of S&P or Moody's used by another
Rating Agency. In determining whether the rating of the Notes has decreased by
one or more gradation, gradations within Rating Categories (+ and - for S&P; 1,
2 and 3 for Moody's; or the equivalent gradations for another Rating Agency)
shall be taken into account (e.g., with respect to S&P, a decline in rating from
BB+ to BB, as well as from BB- to B+, will constitute a decrease of one
gradation).
"Rating Decline" means the occurrence on, or within 90 days after, the date
of public notice of the occurrence of a Change of Control or of the intention of
the Company or Persons controlling the Company to effect a Change of Control
(which period shall be extended so long as the rating of the Notes is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies) of the following: (i) if the Notes are rated by either Rating Agency
as Investment Grade immediately prior to the beginning of such period, the
rating of the Notes by both Rating Agencies shall be below Investment Grade; or
(ii) if the Notes are rated below Investment Grade by both Rating Agencies
immediately prior to the beginning of such period, the rating of the Notes by
either Rating Agency shall be decreased by one or more gradations (including
gradations within Rating Categories as well as between Rating Categories).
"Redeemable Capital Stock" means any Capital Stock that, either by its terms
or by the terms of any security into which it is convertible or exchangeable or
otherwise, is, or upon the happening of an event or passage of time would be,
required to be redeemed prior to any Stated Maturity of the principal of the
Notes or is redeemable at the option of the holder thereof at any time prior to
any such Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to any such Stated Maturity at the option of the
holder thereof.
"Redemption Date", when used with respect to any Note to be redeemed, in
whole or in part, 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.
"Reference Banks" means each of Barclays Bank PLC, London Branch, the Bank
of Tokyo, Ltd., London Branch, Bankers Trust Company, London Branch, and
National Westminster Bank PLC, London Branch, and any such replacement bank
thereof as listed on the Reuters Screen LIBO Page and their respective
successors, and if any of such banks are not at the applicable time providing
interest rates as contemplated within the definition of the "Applicable LIBOR
Rate," Reference Banks shall mean the remaining bank or banks so providing such
rates. In the event that fewer than two of such banks are providing such rates,
the Company shall use reasonable efforts to appoint additional Reference Banks
so
17
that there are at least two such banks providing such rates; PROVIDED, HOWEVER,
that such banks appointed by the Company shall be London offices of leading
banks engaged in the Eurodollar market (the market in which U.S. currency, which
is deposited by corporations and national governments in banks outside the
United States, is used for settling international transactions).
"Regular Record Date" for the interest payable on any Interest Payment Date
means the [date] or [date] (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 the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuter Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London Interbank Offered
Rates of leading banks).
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company other than
Subordinated Indebtedness.
"Significant Subsidiary" of the Company means any Subsidiary of the Company
that is a "significant subsidiary" as defined in Rule 1.02(v) of Regulation S-X
under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill Inc.,
a New York corporation, or any successor rating agency.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the date specified in such Indebtedness
as the fixed date on which the principal of or premium on such Indebtedness or
such installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company subordinated
in right of payment to the Notes.
18
"Subsidiary" means any Person a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Subsidiary Guarantor" means any Person that is required pursuant to Section
1013, on or after the date of this Indenture, to execute a Note Guarantee of the
Notes until a successor replaces any such party pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor, and the
following Subsidiaries of the Company: ATI, Inc., Badger Markets, Inc., Baker's
Supermarkets, Inc., Ball Motor Service, Inc., Boogaart Stores of Nebraska, Inc.,
Central Park Super Duper, Inc., Commercial Cold/Dry Storage Company, Consumers
Markets, Inc., D.L. Foot Stores, Inc., Del-Arrow Super Duper, Inc., Festival
Foods, Inc., Fleming Direct Sales Corporation, Fleming Foods East, Inc., Fleming
Foods of Alabama, Inc., Fleming Foods of Ohio, Inc., Fleming Foods of Tennessee,
Inc., Fleming Foods of Texas, Inc., Fleming Foods of Virginia, Inc., Fleming
Foods of South, Inc., Fleming Foods of West, Inc., Fleming Foreign Sales
Corporation, Fleming Franchising, Inc., Fleming Holdings, Inc., Fleming
International, Ltd., Fleming Site Media, Inc., Fleming Supermarkets of Florida,
Inc., Fleming Technology Leasing Company, Inc., Fleming Transportation Service,
Inc., Food Brands, Inc., Food-4-Less, Inc., Food Holdings, Inc., Food Saver of
Iowa, Inc., Gateway Development Co., Inc., Gateway Food Distributors, Inc.,
Gateway Foods, Inc., Gateway Foods of Altoona, Inc., Gateway Foods of
Pennsylvania, Inc., Gateway Foods of Twin Ports, Inc., Gateway Foods Service
Corporation, Grand Central Leasing Corporation, Great Bend Supermarkets, Inc.,
Hub City Transportation, Inc., Kensington and Harlem, Inc., LAS, Inc., Ladysmith
East IGA, Inc., Ladysmith IGA, Inc., Lake Markets, Inc., M&H Desoto, Inc., M&H
Financial Corp., M&H Realty Corp., Malone & Hyde, Inc., Malone & Hyde of
Lafayette, Inc., Manitowoc IGA, Inc., Moberly Foods, Inc., Mt. Morris Super
Duper, Inc., Niagara Falls Super Duper, Inc., Northern Supermarkets of Oregon,
Inc., Northgate Plaza, Inc., 109 West Main Street, Inc., 121 East Main Street,
Inc., Peshtigo IGA, Inc., Piggly Wiggly Corporation, Quality Incentive Company,
Inc., Rainbow Transportation Services, Inc., Route 16, Inc., Route 219, Inc.,
Route 417, Inc., Richland Center IGA, Inc, Scrivner, Inc., Scrivner-Food
Holdings, Inc., Scrivner of Alabama, Inc., Scrivner of Illinois, Inc., Scrivner
of Iowa, Inc., Scrivner of Kansas, Inc., Scrivner of New York, Inc., Scrivner of
North Carolina, Inc., Scrivner of Pennsylvania, Inc., Scrivner of Tennessee,
Inc., Scrivner of Texas, Inc., Scrivner Super Stores of Illinois, Inc., Scrivner
Super Stores of Iowa, Inc., Scrivner Transportation, Inc., Sehon Foods, Inc.,
Selected Products, Inc., Sentry Markets, Inc., Smar Trans, Inc., South Ogden
Super Duper, Inc., Southern Supermarkets, Inc. (TX), Southern Supermarkets, Inc.
(OK), Southern Supermarkets of Louisiana, Inc., Star Groceries, Inc., Store
Equipment, Inc., Sundries Service, Inc., Switzer Foods, Inc., 35 Church Street,
Inc., Thompson Food Basket, Inc., 29 Super Market, Inc., 27 Slayton Avenue, Inc.
and WPC, Inc.
"Temporary Cash Investments" means (i) any evidence of Indebtedness issued
by the United States, or an instrumentality or agency thereof, and guaranteed
fully as to principal, premium, if any, and interest by the United States, (ii)
any certificate of deposit issued by, or time deposit of, a bank or trust
company in the United States having combined capital and surplus and undivided
profits of not less than $500,000,000, whose debt has a rating, at the time as
of which any investment therein is made, of "A" (or higher) according to Moody's
or "A" (or higher) according to S&P, (iii) commercial paper issued by an entity
(other than an
19
Affiliate or Subsidiary of the Company) with a rating, at the time as of which
any investment therein is made, of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P, (iv) any money market deposit accounts
issued or offered by a financial institution in the United States having capital
and surplus in excess of $500,000,000, (v) short term tax exempt bonds with a
rating, at the time as of which any investment is made therein, of "Aa2" (or
higher) according to Moody's or "AA" (or higher) according to S&P, (vi) shares
in a mutual fund, the investment objectives and policies of which require it to
invest substantially all of its assets in investments of the type described in
clause (v) and (vii) repurchase and reverse repurchase obligations underlying
securities of the types described in clauses (i) and (ii) entered into with any
financial institution meeting the qualifications specified in clause (ii);
PROVIDED that in the case of clauses (i), (ii), (iii), (v) and (vii), such
investment matures within one year from the date of acquisition thereof.
"Transferred Receivables" has the meaning specified in the definition of
"Permitted Receivables Financing" in this Section.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the timely payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States, the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt; PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"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).
20
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock (other
than directors' qualifying shares) of which is owned by the Company or another
Wholly Owned Subsidiary.
"Working Day" means any day which is not a Saturday, Sunday or a day on
which banking institutions in New York, New York or London, England are
authorized or obligated by law or executive order to close.
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 covenant 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 application 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 with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1008)
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
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(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 certificate or opinion is based are
erroneous. In giving such opinion, such counsel may rely upon opinions of local
counsel reasonably satisfactory to the Trustee. Any such certificate or Opinion
of Counsel
21
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 agents 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 instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any Person,
and the date of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of Notes any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section 316(c),
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of
22
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 330 days after the record
date.
(e) 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 registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
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 to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, 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.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides notice of any event to Holders by the Company,
any Subsidiary Guarantor or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security 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. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder when so
mailed, whether or not such Holder actually receives such notice. 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 or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders
23
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice for every
purpose hereunder.
SECTION 107. 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 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes or the Note
Guarantees 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 110. BENEFITS OF INDENTURE.
Nothing in this Indenture, in the Notes or the Note Guarantees, express or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Securities Registrar and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. GOVERNING LAW.
This Indenture, the Notes and the Note Guarantees shall be governed by and
construed in accordance with the law of the State of New York. This Indenture 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.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) 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, Redemption Date, or at the
Stated Maturity or Maturity; PROVIDED that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.
24
ARTICLE TWO
NOTE FORMS
SECTION 201. FORMS GENERALLY.
The Notes and the Trustee's certificates of authentication 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 of the Notes. 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 on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes; PROVIDED, HOWEVER, that if the Notes are listed on any
securities exchange such manner is permitted by the rules of such securities
exchange.
SECTION 202. FORM OF FACE OF NOTE.
FLEMING COMPANIES, INC.
FLOATING RATE SENIOR NOTE DUE 2001 CUSIP
NO. $
Fleming Companies, Inc., an Oklahoma corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars on
, 2001, at the office or agency of the Company referred to below,
and to pay interest thereon from , 1994, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly on [date] and [date] of each year, commencing , 1995, at
a rate per annum determined quarterly by multiplying the principal amount of the
Notes then outstanding by the Applicable LIBOR Rate and multiplying such product
by the LIBOR Fraction, until the principal hereof is paid or duly provided for,
and (to the extent lawful) to pay on demand interest on any overdue interest at
the rate borne by the Notes from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such 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 [date] or [date] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and such Defaulted Interest, and (to the extent lawful)
interest on such Defaulted Interest at the rate borne by the Notes, may be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of
25
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 of Notes not
less than 10 days prior to such Special Record Date, or may 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.
Payment of the principal of (and premium, if any, on) and interest on this Note
will be made at the office or agency of the Company maintained for that purpose
in The City of New York, or at such other office or agency of the Company as may
be maintained 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 payment of interest may be made at the
option of the Company (i) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register or (ii) if
requested in writing at least 10 days prior to a Regular Record Date or a
Special Record Date, as the case may be, by a Person who is entitled thereto
with respect to at least $1,000,000 in principal amount of the Notes, by
transfer to an account maintained by such Person at a bank located in the United
States.
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 duly executed by
the Trustee referred to on the reverse hereof 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: FLEMING COMPANIES, INC.
By ___________________________________
Attest:
___________________________________
Secretary
SECTION 203. FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of securities of the Company
designated as its Floating Rate Senior Notes due 2001 (herein called the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $150,000,000, which may be issued under
an indenture (herein called the "Indenture") dated as of , 1994,
among the Company, the Subsidiary Guarantors named therein and Texas Commerce
Bank National Association, 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
26
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Subsidiary Guarantors, the Trustee and the
Holders of the Notes and the Note Guarantees, and of the terms upon which the
Notes and the Note Guarantees are, and are to be, authenticated and delivered.
The Notes are subject to redemption at the option of the Company, on any
Floating Rate Interest Payment Date, upon not less than 30 nor more than 60
days' notice on or after , 1995 and on or prior to , 1999, as
a whole or in part, at the election of the Company, at a Redemption Price equal
to 100.5% of the principal amount thereof together with accrued and unpaid
interest, if any, to the Redemption Date, and after , 1999 at a
Redemption Price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on relevant record dates to receive accrued interest
due on an Interest Payment Date), all as provided in the Indenture.
Upon the occurrence of a Change of Control Triggering Event, the Holder of
this Note may require the Company, subject to certain limitations provided in
the Indenture, to repurchase this Note at a purchase price in cash in an amount
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase.
In the case of any redemption of Notes, interest installments whose Stated
Maturity is on or prior to the 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 Record Date referred to on the face hereof. Notes (or portions
thereof) for whose redemption and payment provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date.
In the event of redemption of this Note in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
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 contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company and any Subsidiary Guarantor on this Note and
(b) certain restrictive covenants and the related Defaults and Events of
Default, upon compliance by the Company and the Subsidiary Guarantors with
certain conditions set forth therein, which provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
with the consent of the Holders of 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 and the Subsidiary Guarantors with certain
provisions of the Indenture 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
27
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, which is absolute
and unconditional, to pay the principal of (and premium, if any, on) 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 registerable on the Security Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in The City of New York,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his 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. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or exchange
of Notes, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Note for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Subsidiary Guarantors,
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 shall have
the meanings assigned to them in the Indenture.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED ___________________ hereby sell(s), assign(s) and
transfer(s) unto ______________ ______________ ______________ (please insert
social security or other identifying number of assignee) the within Note and
hereby irrevocably constitutes and appoints ______________ ______________ as
agent to transfer the said Note on the books of the Company with the full power
of substitution in the premises.
Dated:
______________________________________
Signature(s)
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Signature must be guaranteed by
a bank or trust company
or a member firm of a major stock
exchange
______________________________________
Signature Guarantee
NOTICE: The signature on the assignment
must correspond with the name as
written upon the face of the Note in every
particular without alteration or enlargement or any
change whatever.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
as Trustee
By ___________________________________
Authorized Signatory
ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $150,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 303, 304, 305, 306, 801,
906, 1009 or 1108.
The Notes shall be known and designated as the "Floating Rate Senior Notes
due 2001" of the Company. Their Stated Maturity shall be , 2001, and
they shall bear interest from , 1994, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable
quarterly on [date] and [date] of each year, commencing , 1995 and at
said Stated Maturity, until the principal thereof is paid or duly provided for.
Interest on the Notes will accrue at a rate equal to the Applicable LIBOR
Rate and will be payable quarterly in arrears on , , and
of each year, or if any such day is not a Business Day, on the next
succeeding Business Day, commencing on , 1995 (each a "Floating Rate
Interest Payment Date") to holders of record on the
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immediately preceding , , and . Interest on the Notes
will be calculated on a formula basis by multiplying the principal amount of the
Notes then outstanding by the Applicable LIBOR Rate and multiplying such product
by the LIBOR Fraction.
The principal of (and premium, if any, on) and interest on the Notes shall
be payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; PROVIDED, HOWEVER, that, at the option of the
Company, interest may be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears in the Security Register or
(ii) if requested in writing at least 10 days prior to a Regular Record Date or
a Special Record Date, as the case may be, by a Person who is entitled thereto
with respect to at least $1,000,000 in principal amount of the Notes, by
transfer to an account maintained by such Person at a bank located in the United
States.
The Notes shall be redeemable as provided in Article Eleven.
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.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman, any
Vice Chairman, its President or a Vice President, under its corporate seal
reproduced thereon and attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Notes may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Company,
notwithstanding 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.
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
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of a Responsible Officer, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties
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and assets substantially as an entirety 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, lease or other disposition 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, lease or other disposition 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,
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 deliver, temporary Notes
which are printed, lithographed, typewritten 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 conclusively 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 the office or agency of the Company designated for such
purpose 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 upon Company Order the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive 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.
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
referred to as the "Security 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 Security Register shall be in written
form or any other form capable of being converted into written form within a
reasonable time. At all reasonable times, the Security Register shall be open to
inspection by the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Security Registrar") for the purpose of registering Notes and
transfers of Notes as herein provided.
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Upon surrender for registration of transfer of any Note at the office or
agency of the Company designated pursuant to Section 1002, 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
denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination 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 and, pursuant to the Note
Guarantees, the Subsidiary Guarantors, 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 be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
or redemption of Notes, but the Company may require payment of a sum sufficient
to cover any 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 303, 304, 801, 906, 1108 or 1009 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Note during a period beginning at the opening of business 15 days
before the selection of Notes to be redeemed under Section 1104 and ending at
the close of business on the day of such mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If (i) any mutilated Note is surrendered to the Trustee, or (ii) the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of actual notice to the Company or the Trustee that such
Note has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for any such mutilated
Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.
32
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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 and, pursuant to the Note Guarantees, the Subsidiary
Guarantors, whether or not the destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 1002; PROVIDED,
HOWEVER, that each installment of interest may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 308, to the address of such
Person as it appears in the Security Register or (ii) if requested in writing at
least 10 days prior to a Regular Record Date or a Special Record Date, as the
case may be, by a Person who is entitled thereto with respect to at least
$1,000,000 in principal amount of the Notes, by transfer to an account
maintained by such Person at a bank located in the United States.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Notes (such defaulted interest and
interest thereon herein collectively called "Defaulted Interest") may be paid by
the Company, at its election in each case, 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 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 in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
33
and not less than 10 days prior to the date of the proposed payment and not
less than 10 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 given in the manner provided for in
Section 106, 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 given, 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 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.
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 the due presentment of a Note for registration of transfer, the
Company, the Subsidiary Guarantors, the Trustee and any agent of the Company,
the Subsidiary Guarantors 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 (and premium, if any, on) and (subject to Sections 305
and 307) interest on such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and none of the Company, any Subsidiary Guarantor, the
Trustee or any agent of the Company, any Subsidiary Guarantor or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Notes surrendered for payment, 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 may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. 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
34
cancelled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their disposal
delivered to the Company unless by Company Order the Company shall direct that
cancelled Notes be returned to it.
SECTION 310. CUSIP NUMBERS.
The Company may use "CUSIP" numbers in issuing the Notes (if then generally
in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; PROVIDED, HOWEVER, that any such notice
may state that no representation is made as to the correctness of such "CUSIP"
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 "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of Notes
issued under this Indenture) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered (except (i)
lost, stolen or destroyed Notes which have been replaced or paid as
provided in Section 306 and (ii) Notes for whose payment funds have
theretofore been deposited in trust by the Company with the Trustee or
any Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, and
either the Company or any Subsidiary Guarantor has irrevocably deposited
or caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any, and interest to the date of such deposit;
(2) the Company or any Subsidiary Guarantor has paid all other sums
payable hereunder by the Company and any Subsidiary Guarantors; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with and
35
that such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which it is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. 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, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
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 on any Note issued under
this Indenture when such interest becomes due and payable, and continuance
of such default for a period of 60 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Note at its Stated Maturity; or
(3) (A) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Guarantor under this Indenture
(other than a default in the performance, or breach, of a covenant or
agreement which is specifically dealt with in the immediately preceding
clauses (1) and (2) or clauses (B) and (C) of this clause (3), and such
default or breach shall continue for a period of 60 days after written
notice has been given, by certified mail, (x) to the Company by the Trustee
or (y) to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Notes specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; (B) default in the performance or breach of the
provisions in Section 801; or (C) the Company shall have failed to make or
consummate a Change of Control Purchase Offer in accordance with the
provisions of Section 1009; or
36
(4) (A) there shall have occurred any default in the payment of
principal of any Indebtedness under any agreements, indentures (including
any such default under the Floating Rate Note Indenture) or instruments
under which the Company or any Subsidiary of the Company then has
outstanding Indebtedness in excess of $50,000,000, when the same shall
become due and payable in full and such default shall have continued after
any applicable grace period and shall not have been cured or waived or (B)
an event of default as defined in any of the agreements, indentures or
instruments described in clause (A) of this clause (4) shall have occurred
and the Indebtedness thereunder, if not already matured at its final
maturity in accordance with its terms, shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or repurchased
(other than by regularly scheduled required prepayment), prior to the stated
maturity thereof; or
(5) any Person entitled to take the actions described in this clause
(5), after the occurrence of any event of default on Indebtedness in excess
of $50,000,000 in the aggregate of the Company or any Subsidiary, shall
notify the Trustee of the intended sale or disposition of any assets of the
Company or any Subsidiary that have been pledged to or for the benefit of
such Person to secure such Indebtedness or shall commence proceedings, or
take any action (including by way of set-off) to retain in satisfaction of
any Indebtedness, or to collect on, seize, dispose of or apply, any such
assets of the Company or any Subsidiary (including funds on deposit or held
pursuant to lock-box and other similar arrangements), pursuant to the terms
of any agreement or instrument evidencing any such Indebtedness or in
accordance with applicable law; or
(6) any Note Guarantee of any Significant Subsidiary individually or
any other Subsidiaries if such Subsidiaries in the aggregate represent 15%
of the assets of the Company with respect to such Notes shall for any reason
cease to be, or be asserted in writing by the Company, any Subsidiary
Guarantor or any other Subsidiary of the Company, as applicable, not to be,
in full force and effect, enforceable in accordance with its terms, except
pursuant to the release of any such Note Guarantee in accordance with this
Indenture; or
(7) one or more judgments, orders or decrees for the payment of money
in excess of $50 million (net of amounts covered by insurance, bond or
similar instrument), either individually or in an aggregate amount, entered
against the Company or any Subsidiary or any of their respective properties
which is not discharged and either (i) any creditor shall have commenced an
enforcement proceeding upon such judgment, order or decree or (ii) there
shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of pending appeal or
otherwise, shall not be in effect; or
(8) the entry by a court of competent jurisdiction of (A) a decree or
order for relief in respect of the Company or any Significant Subsidiary in
an involuntary case or proceeding under any applicable Bankruptcy Law or (B)
a decree or order adjudging the Company or any Significant Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant Subsidiary
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the
37
Company or any Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(9) (A) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (B) the
Company or any Significant Subsidiary consents to the entry of a decree or
order for relief in respect of the Company or such Significant Subsidiary in
an involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding against
it, (C) the Company or any Significant Subsidiary files a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state law, (D) the Company or any Significant Subsidiary (x) consents 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 Significant Subsidiary or of any substantial
part of its property, (y) makes an assignment for the benefit of creditors
or (z) admits in writing its inability to pay its debts generally as they
become due or (E) the Company or any Significant Subsidiary takes any
corporate action in furtherance of any such actions in this clause (9).
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(8) or 501(9)) shall occur and be continuing, then and in every such case the
Trustee, by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Notes Outstanding may declare all amounts payable in
respect of such Notes to be due and payable immediately, by a notice in writing
to the Company and to the Trustee, and upon any such declaration such amounts
shall become immediately due and payable. If an Event of Default specified in
Section 501(8) or 501(9) occurs and is continuing, then all amounts payable in
respect of such 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 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 provided, the Holders of a majority in aggregate
principal amount of the Notes Outstanding, by written notice to the Company and
the Trustee, may rescind or annul such declaration if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(B) all overdue interest on all Outstanding Notes, and
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Notes; and
38
(2) all Events of Default, other than the non-payment of principal of
such Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission or annulment shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of 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 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
effectual 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.
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
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, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
39
(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 agents 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
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 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 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder 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 shall be applied
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 (or 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 606;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any, on) 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 (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Notes 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 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee 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 reasonably satisfactory 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 or
more 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
Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Thirteen) and in
such Note, of the principal of (and premium, if any, on) and (subject to Section
307) interest on, such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on the Redemption 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, the Company, the Subsidiary Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
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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 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 not less than a majority in 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,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Note, 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 Event of Default or impair any right consequent thereon.
42
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Guarantors 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 wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Subsidiary Guarantors (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.
SECTION 515. NOTICE OF DEFAULTS.
Within ten days after the occurrence of any Default hereunder, the Company
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice to the Trustee of such Default hereunder known to the Company or any
Subsidiary Guarantor, unless such Default shall have been cured or waived.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
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, on) or interest
on any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the 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.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) 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;
(2) 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 may be sufficiently evidenced by a
Board Resolution;
43
(3) 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;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) 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 security or indemnity reasonably satisfactory to
the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) 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 at all reasonable times to examine the books, records and
premises of the Company and the Subsidiary Guarantors, personally or by
agent or attorney;
(7) 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; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required 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.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except for the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Subsidiary Guarantors, 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 of Form T-1 supplied to the
Company are 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.
44
SECTION 604. MAY HOLD NOTES.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company and any Subsidiary Guarantor with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST.
Cash in United States dollars or U.S. Government Obligations 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 such cash or U.S. Government Obligations received by it hereunder except as
otherwise agreed in writing with the Company or any Subsidiary Guarantor.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation 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, disbursements 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 agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance, administration or
enforcement 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 obligations of the Company under this Section to compensate the Trustee,
to pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute indebtedness and shall
survive the satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have a claim
prior to the Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any, on) or interest on particular Notes.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus
45
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.
SECTION 608. 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 in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company addressed to the Company and the Subsidiary Guarantors. If the
instrument of acceptance by a successor Trustee required by Section 609 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 not
less than a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company addressed to the Company and the Subsidiary
Guarantors.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company, any Subsidiary
Guarantor or by any Holder who has been a bona fide Holder of a Note for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company, any Subsidiary
Guarantor or by any Holder who has been a bona fide Holder of a Note for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged 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 TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and 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,
the Subsidiary Guarantors 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
46
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 himself 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 to the Holders of Notes
in the manner provided for in Section 106. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. 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, 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.
SECTION 610. 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 of 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, 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; and in case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Notes, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company or the Trustee or any agent of
either 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 TIA
Section 312, 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 TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after [May 15] of each year commencing with the first [May
15] after the first issuance of Notes, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such [May 15] if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY AND SUBSIDIARY GUARANTORS.
The Company and each of the Subsidiary Guarantors shall:
(1) file with the Trustee, within 15 days after the Company or such
Subsidiary Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Company or such Subsidiary Guarantor may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company or any of the Subsidiary Guarantors is not required to file
information, documents or reports pursuant to either of said Sections, then
they shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(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 all Holders, in the manner and to the extent
provided in TIA Section 313(c), 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;
PROVIDED, HOWEVER, that any Subsidiary Guarantor shall be relieved of its
obligations under clauses (1) and (2) of this Section to the extent that it
is relieved of its obligations
48
under Section 13 or Section 15(d) of the Exchange Act by the Commission
pursuant to the terms of any no-action letter addressed to the Company or
such Subsidiary Guarantor from the staff of the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets to any Person or group of affiliated Persons, or
permit any of its Subsidiaries to enter into any such transaction or
transactions if such transaction or transactions, in the aggregate, would result
in a sale, assignment, transfer, lease or disposal of all or substantially all
of the properties and assets of the Company and its Subsidiaries on a
Consolidated basis to any other Person or group of affiliated Persons, unless at
the time and after giving effect thereto:
(1) either
(A) the Company shall be the surviving or continuing corporation or
(B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or disposition,
the properties and assets of the Company substantially as an entirety
(the "Surviving Entity")
(i) shall be a corporation duly organized and validly existing
under the laws of the United States, any state thereof or the
District of Columbia and
(ii) shall, in any case, expressly assume, by a supplement
indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company
under the Notes and this Indenture, and this Indenture shall remain
in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction on a PRO FORMA basis (and treating any Indebtedness which
becomes an obligation of the Company or any of its Subsidiaries in
connection with or as a result of such transaction as having been incurred
at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;
(3) immediately before and immediately after giving effect to such
transaction on a PRO FORMA basis (on the assumption that the transaction
occurred on the first day of the four-quarter period immediately prior to
the consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such PRO FORMA calculation),
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the provisions of Section 1010;
49
(4) each Subsidiary Guarantor, unless it is the other party to the
transactions described above, shall have, by supplemental indenture to this
Indenture, confirmed that its respective Note Guarantees with respect to the
Notes shall apply to such Person's obligations under this Indenture and the
Notes;
(5) if any property or assets of the Company or any of its Subsidiaries
would thereupon become subject to any Lien, the provisions of Section 1012
are complied with; and
(6) the Company shall have delivered, or caused to be delivered, to the
Trustee an Officer's Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other transaction and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation, merger, sale, assignment, conveyance, transfer,
lease or other transaction described in, and complying with the provisions of,
Section 801 in which the Company is not the continuing corporation, the
successor Person formed or remaining shall succeed to, and be substituted for,
and may exercise every right and power of, the Company, as the case may be, and
the Company shall be discharged from all obligations and covenants under this
Indenture and the Notes, PROVIDED that, in the case of a transfer by lease, the
predecessor shall not be released from its obligations with respect to the
payment of principal (premium, if any) and interest on the Notes.
SECTION 803. NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such consolidation of the Company with or merger of the Company
into any other corporation, or upon any conveyance, lease or transfer of the
property of the Company substantially as an entirety to any other Person, any
property or assets of the Company would thereupon become subject to any Lien,
then unless such Lien could be created pursuant to Section 1012 without equally
and ratably securing the Notes, the Company, prior to or simultaneously with
such consolidation, merger, conveyance, lease or transfer, will as to such
property or assets, secure the Notes Outstanding (together with, if the Company
shall so determine any other Indebtedness of the Company now existing or
hereinafter created which is not subordinate in right of payment to the Notes)
equally and ratably with (or prior to) the Indebtedness which upon such
consolidation, merger, conveyance, lease or transfer is to become secured as to
such property or assets by such Lien, or will cause such Notes to be so secured.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Subsidiary Guarantors,
when authorized by a Board Resolution, 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 covenants of the Company contained
herein and in the Notes; 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 add any additional Events of Default; or
(4) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee pursuant to the requirements of Section 609; or
(5) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture; PROVIDED that such action shall not adversely affect the
interests of the Holders in any material respect;
(6) to add new Subsidiary Guarantors pursuant to Section 1013;
(7) to secure the Notes pursuant to the requirements of Section 803 or
otherwise; or
(8) to comply with any requirements of the Commission in order to effect
and maintain the qualification of this Indenture under the Trust Indenture
Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Notes, by Act of said Holders delivered to the
Company, the Subsidiary Guarantors and the Trustee, the Company, when authorized
by a Board Resolution, the Subsidiary Guarantors and the Trustee may 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 installment
of interest on, any Note, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption or purchase
thereof, or change the coin or currency in which any Note or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or
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(2) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513 and
1015, 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 supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(b) Each Subsidiary Guarantor [hereby appoints] the Company as its
attorney-in-fact to execute, on its behalf, any indenture supplemental hereto to
be entered into solely for the purpose specified in Section 901(6).
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such 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 supplemental indenture executed pursuant to the Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 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 supplemental indenture. If the Company and the Subsidiary Guarantors shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company and the Subsidiary Guarantors, to any such supplemental
indenture may be prepared and executed by the Company and the Subsidiary
Guarantors and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
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SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Sections 901 and 902, the
Company shall give notice thereof to the Holders of each Outstanding Note
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture; PROVIDED, HOWEVER, that the
Company shall not be required to give notice of any indenture supplemental
hereto entered into solely for the purpose specified in Section 901(5), (6) or
(8), notice with respect to which shall be given by the Company when it is next
required to give notice pursuant to this Section.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders that it will
duly and punctually pay the principal of (and premium, if any, on) and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will 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 the Company or any Subsidiary Guarantor in respect of the
Notes and this Indenture may be served. The Corporate Trust Office of the
Trustee shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any 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 and each of the Subsidiary Guarantors hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands. Unless otherwise specified with respect to the Notes as
contemplated by Section 301, the Company hereby designates as a Place of Payment
for the Notes the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, and initially appoints Texas Commerce Trust Company of New
York, 80 Broad Street, Suite 400, New York, New York 10004, as Paying 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 of 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
rescind any such designation; 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 will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such other office or agency.
53
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 will, on or
before each due date of the principal of (and premium, if any, on) 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 (and 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.
Whenever the Company shall have one or more Paying Agents for the Notes, it
will, on or before each due date of the principal of (and premium, if any, on),
or interest on, any Notes, deposit with a Paying Agent a sum sufficient to pay
the principal (and 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
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company will 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 will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any, on) 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 (and
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
sums.
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 (and premium, if any,
on) or interest on any Note and remaining unclaimed for two years after such
principal (and 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, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper
54
published in the English language, 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 will be repaid to the
Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate existence,
rights (charter and statutory) and franchises of the Company and each
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Notwithstanding anything to the contrary in this Section 1004, the Company shall
be permitted to consolidate or merge any of its Subsidiaries with or into the
Company or any Wholly Owned Subsidiary of the Company.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will 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 upon the Company or any Subsidiary or 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 Subsidiary; 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.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties owned by the Company or any Subsidiary
or used or held for use 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 will 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 shall prevent the
Company from discontinuing the 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.
SECTION 1007. INSURANCE.
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.
55
SECTION 1008. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1008, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1009. PURCHASE OF NOTES UPON A CHANGE OF CONTROL TRIGGERING EVENT.
(a) Upon the occurrence of a Change of Control Triggering Event, each Holder
shall have the right to require that the Company purchase such Holder's Notes in
whole or in part in integral multiples of $1,000 (the "Change of Control
Purchase Offer"), at a purchase price (the "Change of Control Purchase Price")
in cash in an amount equal to 101% of the principal amount thereof, together
with accrued and unpaid interest, if any, to the date of purchase (the "Change
of Control Purchase Date"), in accordance with the procedures set forth in
paragraphs (c) and (d) of this Section.
(b) Upon the occurrence of a Change of Control Triggering Event and prior to
the mailing of the notice to Holders provided for in paragraph (c) below, the
Company covenants to either (x) repay in full all Indebtedness under the Credit
Agreement or offer to repay in full all such Indebtedness and to repay the
Indebtedness of each of the Banks that has accepted such offer or (y) obtain any
requisite consent under the Credit Agreement to permit the purchase of the Notes
as provided for in paragraph (c) below or take any other action as may be
required under the Credit Agreement to permit such purchase. The Company shall
first comply with this paragraph (b) before it shall be required to purchase the
Notes pursuant to this Section 1009.
(c) Within 30 days following any Change of Control Triggering Event, the
Company shall give to each Holder of the Notes in the manner provided in Section
106 a notice stating:
(1) that a Change of Control Triggering Event has occurred and that such
Holder has the right to require the Company to purchase in whole or in part
such Holder's Notes at the Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change of
Control Triggering Event (including but not limited to information with
respect to PRO FORMA historical income, cash flow and capitalization after
giving effect to the Change of Control);
(3) the Change of Control Purchase Date which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed or such
later date as is necessary to comply with the Exchange Act;
(4) that any Note, or portion thereof, not tendered will continue to
accrue interest;
(5) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment of the Change of
Control Purchase Price pursuant to the Change of Control Purchase Offer
shall cease to accrue interest after the Change of Control Purchase Date;
and
56
(6) the instructions a Holder must follow in order to have its Notes
purchased in accordance with paragraph (d) of this Section.
(d) Holders electing to have Notes purchased will be required to surrender
such Notes to the Company at the address specified in the 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 five
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 delivered for purchase by the Holder as to which
his election is to be withdrawn and a statement that such Holder is withdrawing
his election to have such Notes purchased. Holders whose Notes are purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
(e) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and other applicable securities
laws and regulations in connection with a Change of Control Purchase Offer.
SECTION 1010. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Subsidiaries to,
create, assume, or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for the payment of, or otherwise incur
(collectively, "incur"), any Indebtedness (including any Acquired Indebtedness)
other than Permitted Indebtedness, unless, at the time of such event (and after
giving effect on a PRO FORMA basis to (i) the incurrence of such Indebtedness;
(ii) the incurrence, repayment or retirement of any other Indebtedness by the
Company or its Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was incurred, repaid or retired at the beginning of such
four-quarter period; and (iii) the acquisition (whether by purchase, merger or
otherwise) or disposition (whether by sale, merger or otherwise) of any company,
entity or business acquired or disposed of by the Company or its Subsidiaries,
as the case may be, since the first day of such four-quarter period, as if such
acquisition or disposition had occurred at the beginning of such four-quarter
period), the Consolidated Fixed Charge Coverage Ratio of the Company for the
four full fiscal quarters immediately preceding such event, taken as one period
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 with the appropriate
adjustments with respect to such acquisition being included in such PRO FORMA
calculation, would have been at least equal to 1.75 to 1.
SECTION 1011. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Subsidiary of the Company
to, directly or indirectly:
(1) declare or pay any dividend on, or make any distribution to, the
holders of, any Capital Stock of the Company (other than dividends or
distributions payable solely in shares of Qualified Capital Stock of the
Company or in options, warrants or other rights to purchase such Qualified
Capital Stock);
57
(2) purchase, redeem or otherwise acquire or retire for value, directly
or indirectly, any Capital Stock of the Company or any Subsidiary or any
options, warrants or other rights to acquire such Capital Stock;
(3) make any principal payment on, or redeem, repurchase, defease or
otherwise acquire or retire for value, prior to any scheduled repayment,
sinking fund payment or maturity, any Indebtedness of the Company which is
subordinate in right of payment to the Notes or of any Subsidiary Guarantor
that is subordinate to such Subsidiary Guarantor's Note Guarantee;
(4) declare or pay any dividend or distribution on any Capital Stock of
any Subsidiary of the Company to any Person (other than the Company or any
Wholly Owned Subsidiary of the Company) or purchase, redeem or otherwise
acquire or retire for value any Capital Stock of any Subsidiary of the
Company held by any Person (other than the Company or any Wholly Owned
Subsidiary of the Company);
(5) create, assume or suffer to exist any guarantee of Indebtedness of
any Affiliate of the Company (other than a Wholly Owned Subsidiary of the
Company in accordance with the terms of the Indenture); or
(6) make any Investment (other than any Permitted Investment) in any
Person
(such payments described in clauses (1) through (6) and not excepted therefrom
are collectively referred to herein as "Restricted Payments") unless at the time
of and immediately after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution), (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in accordance with the
provisions described under Section 1010.
(b) Notwithstanding paragraph (a) above, the Company and its Subsidiaries
may take the following actions so long as (with respect to clauses (2), (3), and
(4), below) no Default or Event of Default shall have occurred and be
continuing:
(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 paragraph (a) above;
(2) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company, in exchange for, or out
of the net cash proceeds of, a substantially concurrent issuance and sale
(other than to a Subsidiary) of shares of Capital Stock of the Company
(other than Redeemable Capital Stock, unless the redemption provisions of
such Redeemable Capital Stock prohibit the redemption thereof prior to the
date on which the Capital Stock to be acquired or retired was by its terms
required to be redeemed);
(3) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness (other than Redeemable
Capital Stock) in exchange for or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a Subsidiary) of
shares of Capital Stock of the Company (other than
58
Redeemable Capital Stock, unless the redemption provisions of such
Redeemable Capital Stock prohibit the redemption thereof prior to the Stated
Maturity of the Subordinated Indebtedness to be acquired or retired); and
(4) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness (other than Redeemable
Capital Stock) in exchange for, or out of the net cash proceeds of a
substantially concurrent incurrence or sale (other than to a Subsidiary) of,
new Subordinated Indebtedness of the Company so long as
(A) the principal amount of such new Subordinated Indebtedness does
not exceed the principal amount (or, if such Subordinated Indebtedness
being refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof,
such lesser amount as of the date of determination) of the Subordinated
Indebtedness being so purchased, redeemed, defeased, acquired or retired,
PLUS the amount of any premium required to be paid in connection with
such refinancing pursuant to the terms of the Subordinated Indebtedness
refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing, PLUS the amount of
expenses of the Company incurred in connection with such refinancing,
(B) such new Subordinated Indebtedness is subordinated to the Notes
to the same extent as such Subordinated Indebtedness so purchased,
redeemed, defeased, acquired or retired, and
(C) such new Subordinated Indebtedness has an Average Life longer
than the Average Life of the Notes and a final Stated Maturity of
principal later than the final Stated Maturity of principal of the Notes.
SECTION 1012. LIMITATION ON LIENS.
The Company will not, and will not permit any Subsidiary of the Company to,
directly or indirectly, create, incur, assume or suffer to exist any Lien (other
than Permitted Liens) of any kind upon any Principal Property or upon any shares
of stock or indebtedness of any Subsidiary of the Company now owned or acquired
after the date of this Indenture, or any income or profits therefrom, unless (a)
the Notes are directly secured equally and ratably with (or prior to in the case
of Liens with respect to Subordinated Indebtedness) the obligation or liability
secured by such Lien or (b) any such Lien is in favor of the Company or any
Subsidiary Guarantor.
SECTION 1013. ADDITIONAL GUARANTEES.
If the Company or any of its Subsidiaries shall acquire or form a
Subsidiary, the Company will cause any such Subsidiary (other than an Equity
Store or Business Development Venture, PROVIDED that such Equity Store or
Business Development Venture does not guarantee the Senior Indebtedness of any
other Person) that is or becomes a Significant Subsidiary or that guarantees any
Senior Indebtedness of the Company or of any Subsidiary Guarantor to become a
Subsidiary Guarantor with respect to the Notes. Any such Subsidiary shall become
a Subsidiary Guarantor by (i) executing and delivering to the Trustee a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee pursuant to which such Subsidiary shall guarantee all of the obligations
of the Company with respect to
59
the Notes issued under this Indenture on a senior basis and (ii) delivering to
the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee to the
effect that a supplemental indenture has been duly executed and delivered by
such Subsidiary and is in compliance with the terms of this Indenture.
SECTION 1014. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a), 13(c) or 15(d) of
the Exchange Act, the Company will file with the Commission the annual reports,
quarterly reports and other documents that the Company is or would have been
required to file with the Commission pursuant to such Section 13(a), 13(c) or
15(d) of the Exchange Act if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so subject. The Company will also in any event
within 15 days of each Required Filing Date (within 30 days of such Required
Filing Date for any reports filed on Form 10-K) (i) transmit by mail to each
Holder, as its name and address appears in the security register, without cost
to such holder and (ii) file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Company is or would have been
required to file with the Commission pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act if the Company were so subject.
SECTION 1015. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 803 or Sections 1007 through 1014,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Notes, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. RIGHT OF REDEMPTION.
The Notes may be redeemed, at the option of the Company, as a whole or from
time to time in part, at any time on or after , 1999, subject to
the conditions and at the Redemption Prices specified in the form of Note,
together with accrued interest to the Redemption Date.
Up to 20% of the initial aggregate principal amount of the Notes may be
redeemed on or prior to , 1997, at the option of the Company,
within 180 days of a Public Equity Offering with the net proceeds of such
offering at a redemption price equal to % of the principal amount thereof,
together with accrued and unpaid interest, if any, to the date of redemption
(subject to the right of holders of record on relevant record dates to receive
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interest due on relevant interest payment dates); PROVIDED that after giving
effect to such redemption at least $200 million aggregate principal amount of
the Notes remain outstanding.
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.
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. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
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 of the principal of Notes;
PROVIDED, HOWEVER, that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than $1,000.
The Trustee shall promptly notify the Company 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 redemption of Notes shall relate, in the case of any
Note redeemed or to be redeemed only in part, to the portion of the principal
amount of such Note which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Notes are to be redeemed, the
identification by CUSIP Numbers, if any (and, in the case of a partial
redemption, the principal amounts), of the particular Notes to be redeemed,
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(4) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in
Section 1107) will become due and payable upon each such Note, or the
portion thereof, to be redeemed, and that interest thereon will cease to
accrue on and after said date, and
(5) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
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 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 sufficient to pay the Redemption Price of, and accrued interest on, any
Notes, or any portions thereof, 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 (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Notes, or
portions thereof, shall cease to bear interest. Upon surrender of any such Note
for redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, 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 Record Dates 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 Notes.
SECTION 1108. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part (pursuant to the provisions of
this Article shall be surrendered at the office or agency of the Company
maintained for such 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 such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver 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.
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ARTICLE TWELVE
NOTE GUARANTEES
SECTION 1201. NOTE GUARANTEES.
Subject to the provisions of this Article Twelve, each Subsidiary Guarantor
hereby irrevocably and unconditionally guarantees, jointly and severally, on a
senior basis to each Holder and to the Trustee, on behalf of the Holders, (i)
the due and punctual payment of the principal of and interest on each Note, when
and as the same shall become due and payable, whether at Stated Maturity or
purchase upon a Change of Control Triggering Event, and whether by declaration
of acceleration, Change of Control Triggering Event, call for redemption or
otherwise, the due and punctual payment of interest on the overdue principal of
and interest, if any, on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of such Note and this Indenture and
(ii) in the case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal, at
Stated Maturity or purchase upon a Change of Control Triggering Event, and
whether by declaration of acceleration, Change of Control Triggering Event, call
for redemption or otherwise (the obligations in clauses (i) and (ii) hereof
being the "Guaranteed Obligations").
Without limiting the generality of the foregoing, each Subsidiary
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Company to the Holders or the
Trustee under the Notes and the Indenture but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company. The Subsidiary
Guarantors hereby agree that their obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto, by any
Holder or any other circumstances which may otherwise constitute a legal or
equitable discharge or defense of the Company or a surety or guarantor.
The Subsidiary Guarantors hereby waive diligence, presentment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, the benefit of
discussion, protest or notice with respect to any such Note or the Indebtedness
evidenced thereby and all demands whatsoever (except as specified above), and
covenant that the Guaranteed Obligations will not be discharged as to any such
Note except by payment in full of such Guaranteed Obligations and as provided in
Sections 401, 1102 and 1205.
Each Subsidiary Guarantor further agrees that, as between such Subsidiary
Guarantor and the Holders, (i) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article Five, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Company or any
other Subsidiary Guarantor in respect of the Guaranteed Obligations, and (ii) in
the event of any declaration of acceleration of such Guaranteed Obligations as
provided in Article Five, such Guaranteed Obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary
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Guarantor. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article Five, the Trustee shall promptly
make a demand for payment on any Notes in respect of which the Guaranteed
Obligations provided for in this Article Twelve are not discharged.
Each Subsidiary Guarantor hereby irrevocably waives any claim or other
rights that it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under this Indenture, or any other document or
instrument including, without limitation, any right of reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of the Holders against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or in any other manner,
payment or security on account of such claim or other rights. Each Subsidiary
Guarantor shall be subrogated to all rights of the Holders of the Notes pursuant
to any Note Guarantee against the Company in respect of any amounts paid by such
Subsidiary Guarantor on account of such Note pursuant to the provisions of this
Indenture; PROVIDED, HOWEVER, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon such right of
subrogation until the principal of (and premium, if any) and interest on all
Notes issued hereunder shall have been paid in full to the Holders entitled
thereto. If any amount shall be paid to any Subsidiary Guarantor in violation of
this paragraph and the Guaranteed Obligations shall not have been paid in full,
such amount shall be deemed to have been paid to such Subsidiary Guarantor for
the benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee. Each Subsidiary Guarantor acknowledges that it
will receive direct and indirect benefits from the issuance of the Notes and
that the waiver set forth in this Section 1201 is knowingly made in
contemplation of such benefits.
Without limiting the generality of the foregoing, the Subsidiary Guarantors
hereby expressly and specifically waive the benefits of Section 26-7 through
26-9 of the General Statutes of North Carolina, as amended from time to time,
and any similar statute or law of any other jurisdiction, as the same may be
amended from time to time.
SECTION 1202. OBLIGATIONS OF THE SUBSIDIARY GUARANTORS UNCONDITIONAL.
Nothing contained in this Article Twelve, elsewhere in this Indenture or in
any Note is intended to or shall impair, as between the Subsidiary Guarantors
and the Holders, the obligation of the Subsidiary Guarantors, which obligations
are independent of the obligations of the Company under the Notes and this
Indenture and are absolute and unconditional, to pay to the Holders the
Guaranteed Obligations as and when the same shall become due and payable in
accordance with the provisions of this Indenture, or is intended to or shall
affect the relative rights of the Holders and creditors of the Subsidiary
Guarantors, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture. Each payment to be made by any Subsidiary
Guarantor hereunder in respect of the Guaranteed Obligations shall be payable in
the currency or currencies in which such Guaranteed Obligations are denominated.
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SECTION 1203. RANKING OF NOTE GUARANTEES.
Each Subsidiary Guarantor covenants and agrees, and each Holder of a Note by
his acceptance thereof likewise covenants and agrees, that each Note Guarantee
will be an unsecured senior obligation of the Subsidiary Guarantor issuing such
Note Guarantee, ranking PARI PASSU in right of payment with all other existing
and future Senior Indebtedness of such Subsidiary Guarantor and senior in right
of payment to any future Indebtedness of such Subsidiary Guarantor that is
expressly subordinated to Senior Indebtedness of such Subsidiary Guarantor.
SECTION 1204. LIMITATION OF NOTE GUARANTEES.
The Company and each Subsidiary Guarantor, and each Holder of a Note by his
acceptance thereof, hereby confirm that it is the intention of all such parties
that each Subsidiary Guarantor shall be liable under this Indenture only for
amounts aggregating up to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
To effectuate the foregoing intention, the Holders hereby irrevocably agree that
in the event that any such Note Guarantee would constitute or result in a
violation of any applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of the Subsidiary Guarantor under such Note
Guarantee shall be reduced to the maximum amount, after giving effect to all
other contingent and fixed liabilities of such Subsidiary Guarantor, permissible
under the applicable fraudulent conveyance or similar law.
SECTION 1205. RELEASE OF SUBSIDIARY GUARANTORS.
(a) Any Subsidiary Guarantor shall be released from and relieved of its
obligations under this Article Twelve (1) upon defeasance in accordance with
Section 1302, (2) upon the payment in full of all the Guaranteed Obligations or
(3) upon the sale by the Company or any Subsidiary of such Subsidiary Guarantor
to any Person other than a Subsidiary of the Company provided that such sale
does not result in a sale, assignment, transfer, lease or disposal of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a Consolidated basis. Upon the delivery by the Company to the
Trustee of an Officers' Certificate and, if requested by the Trustee, an Opinion
of Counsel to the effect that the transaction giving rise to the release of such
obligations was made by the Company in accordance with the provisions of this
Indenture and the Notes, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Subsidiary Guarantors from
their obligations. If any of the Guaranteed Obligations are revived and
reinstated after the termination of such Note Guarantee, then all of the
obligations of the Subsidiary Guarantors under such Note Guarantee shall be
revived and reinstated as if such Note Guarantee had not been terminated until
such time as the Guaranteed Obligations are paid in full, and the Subsidiary
Guarantors shall execute any documents reasonably satisfactory to the Trustee
evidencing such revival and reinstatement.
(b) Upon (i) the sale or disposition of all of the Common Stock of a
Subsidiary Guarantor (by merger or otherwise) to a Person other than the Company
and which sale or disposition is otherwise in compliance with the terms of this
Indenture, or (ii) the unconditional and full release in writing as provided
herein of such Subsidiary Guarantor from all Indebtedness
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arising hereunder, such Subsidiary Guarantor shall be deemed released from all
obligations under this Article Twelve; PROVIDED, HOWEVER, that any such
termination upon such sale or disposition shall occur if and only to the extent
that all obligations of such Subsidiary Guarantor under all of its guarantees
of, and under all of its pledges of assets or other security interests which
secure, Indebtedness of the Company or any Subsidiary, shall also terminate upon
such sale or disposition. Upon the delivery by the Company to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel to
the effect that the transaction giving rise to the release of such obligations
was made in accordance with the provisions of this Indenture and the Notes, the
Trustee shall execute any documents reasonably required in order to evidence the
release of such Subsidiary Guarantor from its obligations. Any Subsidiary
Guarantor not so released remains liable for the full amount of principal of
(and premium, if any) and interest on the Notes as provided in this Article
Twelve.
SECTION 1206. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
Except as set forth in Section 1205 and in Articles Eight and Ten hereof,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or a
Subsidiary Guarantor or shall prevent any sale or conveyance of the property of
a Subsidiary Guarantor as an entirety or substantially as an entirety to the
Company or a Subsidiary Guarantor.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, with respect to the Notes,
elect to have either Section 1302 or Section 1303 be applied to all Outstanding
Notes upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1301 of the option applicable to
this Section 1302, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Notes on the date the conditions set
forth in Section 1304 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Notes, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
1305 and the other Sections of this Indenture referred to in (A) and (B) below,
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Notes to receive payments in
respect of the principal of (and premium, if any, on) and interest on such Notes
when such payments are due or on the Redemption Date with respect to such Notes,
as the case may be, (B) the Company's obligations with respect to such Notes
under Sections 304, 305, 306, 1002 and 1003, (C) the rights,
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powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Thirteen. Subject to compliance with this Article Thirteen, the Company
may exercise its option under this Section 1302 notwithstanding the prior
exercise of its option under Section 1303 with respect to the Notes.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1301 of the option applicable to
this Section 1303, the Company shall be released from its obligations under any
covenant contained in Section 801(3) and Section 803 and in Sections 1007
through 1015 with respect to the Outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(3), but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1302
or Section 1303 to the Outstanding Notes:
(1) the Company shall irrevocably have deposited with the Trustee (or
another trustee satisfying the requirements of Section 607 who shall agree
to comply with the provisions of this Article Thirteen applicable to it) in
trust, for the benefit of the Holders, cash in United States dollars, U.S.
Government Obligations or a combination thereof in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the principal of, and premium, if any, and
interest on the Outstanding Notes on the Stated Maturity or on an optional
redemption date (such date being referred to as the "Defeasance Redemption
Date"), as the case may be, if in the case of a Defeasance Redemption Date
prior to electing to exercise either defeasance or covenant defeasance, the
Company has delivered to the Trustee an irrevocable notice to redeem all of
the outstanding Notes on such Defeasance Redemption Date;
(2) in the case of an election under Section 1302, the Company shall
have delivered to the Trustee an opinion of independent counsel in the
United States stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
opinion of counsel in the United States shall confirm that, the Holders of
the
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Outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(3) in the case of an election under Section 1303, the Company shall
have delivered to the Trustee an opinion of independent counsel in the
United States to the effect that the Holders of the Outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(4) no Default or Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or, insofar as
paragraphs (8) and (9) of Section 501 hereof are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period);
(5) such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which it is bound;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders or any Subsidiary Guarantor over the other
creditors of the Company or any Subsidiary Guarantor or with the intent of
defecting, hindering, delaying or defrauding creditors of the Company, any
Subsidiary Guarantor or others; and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee -- collectively for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to
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Section 1304 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Notes.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
SECTION 1306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1302 or 1303, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1305, and the Company shall execute all documents reasonably satisfactory to the
Trustee evidencing such revival and reinstatement; PROVIDED, HOWEVER, that if
the Company makes any payment of principal of (or premium, if any, on) or
interest on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE FOURTEEN
SINKING FUND
SECTION 1401. MANDATORY SINKING FUND PAYMENTS.
As a mandatory sinking fund for the retirement of certain of the Notes, the
Company will, until all such Notes shall have been paid, or payment thereof duly
provided for, pay to the Trustee, on , 1999 and on ,
2000 (each such date a "sinking fund payment date"), an amount sufficient to
redeem $1,000,000 principal amount of Notes, at a Redemption Price equal to 100%
of their principal amount. The cash amount of any sinking fund payment is
subject to reduction as provided in Section 1402. Each sinking fund payment
shall be applied to the redemption of Notes on such sinking fund payment date as
herein provided.
SECTION 1402. SATISFACTION OF SINKING FUND PAYMENTS WITH NOTES.
Subject to Section 1403, in lieu of making all or any part of any sinking
fund payment in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Notes (other than any previously called for redemption) theretofore
purchased or otherwise acquired by the Company and/or (2) receive credit for the
principal amount of Notes which have been redeemed at the election of the
Company pursuant to Section 1101, in each case in satisfaction of all or any
part of any sinking fund payment required to be made pursuant to
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Section 1401; PROVIDED, HOWEVER, that such Notes have not been previously so
credited. Such Notes shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in the form of Security for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1403. REDEMPTION OF NOTES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date, the Company
will deliver to the Trustee an Officer's Certificate specifying the amount of
the next ensuing sinking fund payment, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering or crediting Notes pursuant to Section 1402 (which Notes
will, if not previously delivered, accompany such certificate). Such certificate
shall be irrevocable and, upon its delivery, the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Notes subject to such sinking
fund payment without the option to deliver or credit Notes as provided in
Section 1402.
Not more than 60 days before each such sinking fund payment date, the
Trustee shall select the Notes to be redeemed upon such sinking fund payment
date in the manner specified in Section 1104 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1105. Such notice having been duly given, the
redemption of such Notes shall be made upon the terms and in the manner stated
in Sections 1107 and 1108.
Prior to any sinking fund payment date, the Company shall pay to the Trustee
or a Paying Agent a sum in cash equal to any interest that will accrue to the
date fixed for redemption of Notes or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 1403.
Notwithstanding the foregoing, if at any time the amount of cash to be paid
into such sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund payment or
payments, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Notes through the operation of the sinking fund. Any such unused
balance of moneys deposited in such sinking fund shall be added to the sinking
fund payment to be made in cash on the next succeeding sinking fund payment date
or, at the request of the Company, shall be applied at any time or from time to
time to the purchase of Notes, by public or private purchase, in the open market
or otherwise, at a purchase price for such Notes (excluding accrued interest and
brokerage commissions, for which the Trustee or any Paying Agent will be
reimbursed by the Company) not in excess of the principal amount thereof.
70
This Indenture may be signed in any number of counterparts each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
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.
FLEMING COMPANIES, INC.
SEAL By ___________________________________
Title:
Attest: __________________________
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By ___________________________________
Title:
Attest: __________________________
Title:
[ATI, Inc.
Badger Markets, Inc.
Baker's Supermarkets, Inc.
Ball Motor Service, Inc.
Boogaart Stores of Nebraska, Inc.
Central Park Super Duper, Inc.
Commercial Cold/Dry Storage Company
Consumers Markets, Inc.
D.L. Foot Stores, Inc.
Del-Arrow Super Duper, Inc.
Festival Foods, Inc.
Fleming Direct Sales Corporation
Fleming Foods East, Inc.
Fleming Foods of Alabama, Inc.
Fleming Foods of Ohio, Inc.
Fleming Foods of Tennessee, Inc.
Fleming Foods of Texas, Inc.
Fleming Foods of Virginia, Inc.
Fleming Foods of South, Inc.
Fleming Foods of West, Inc.
71
Fleming Foreign Sales Corporation
Fleming Franchising, Inc.
Fleming Holdings, Inc.
Fleming International, Ltd.
Fleming Site Media, Inc.
Fleming Supermarkets of Florida, Inc.
Fleming Technology Leasing Company,
Inc.
Fleming Transportation Service, Inc.
Food Brands, Inc.
Food-4-Less, Inc.
Food Holdings, Inc.
Food Saver of Iowa, Inc.
Gateway Development Co., Inc.
Gateway Food Distributors, Inc.
Gateway Foods, Inc.
Gateway Foods of Altoona, Inc.
Gateway Foods of Pennsylvania, Inc.
Gateway Foods of Twin Ports, Inc.
Gateway Foods Service Corporation
Grand Central Leasing Corporation
Great Bend Supermarkets, Inc.
Hub City Transportation, Inc.
Kensington and Harlem, Inc.
LAS, Inc.
Ladysmith East IGA, Inc.
Ladysmith IGA, Inc.
Lake Markets, Inc.
M&H Desoto, Inc.
M&H Financial Corp.
M&H Realty Corp.
Malone & Hyde, Inc.
Malone & Hyde of Lafayette, Inc.
Manitowoc IGA, Inc.
Moberly Foods, Inc.
Mt. Morris Super Duper, Inc.
Niagara Falls Super Duper, Inc.
Northern Supermarkets of Oregon, Inc.
Northgate Plaza, Inc.
109 West Main Street, Inc.
121 East Main Street, Inc.
Peshtigo IGA, Inc.
Piggly Wiggly Corporation
Quality Incentive Company, Inc.
Rainbow Transportation Services, Inc.
Route 16, Inc.
Route 219, Inc.
72
Route 417, Inc.
Richland Center IGA, Inc.
Scrivner, Inc.
Scrivner-Food Holdings, Inc.
Scrivner of Alabama, Inc.
Scrivner of Illinois, Inc.
Scrivner of Iowa, Inc.
Scrivner of Kansas, Inc.
Scrivner of New York, Inc.
Scrivner of North Carolina, Inc.
Scrivner of Pennsylvania, Inc.
Scrivner of Tennessee, Inc.
Scrivner of Texas, Inc.
Scrivner Super Stores of Illinois,
Inc.
Scrivner Super Stores of Iowa, Inc.
Scrivner Transportation, Inc.
Sehon Foods, Inc.
Selected Products, Inc.
Sentry Markets, Inc.
Smar Trans, Inc.
South Ogden Super Duper, Inc.
Southern Supermarkets, Inc. (TX)
Southern Supermarkets, Inc. (OK)
Southern Supermarkets of Louisiana,
Inc.
Star Groceries, Inc.
Store Equipment, Inc.
Sundries Service, Inc.
Switzer Foods, Inc.
35 Church Street, Inc.
Thompson Food Basket, Inc.
29 Super Market, Inc.
27 Slayton Avenue, Inc.
WPC, Inc.
Each, a Subsidiary Guarantor
By ___________________________________
Name: John M. Thompson
Title: Vice President and Treasurer
(Chief Financial Officer)]
Attest:
__________________________________
[Secretary]