DRAFT - 8/23/93
5754M/6878M
1260J/1264J
PATHMARK STORES, INC.,
Issuer,
and
WILMINGTON TRUST COMPANY,
Trustee
INDENTURE
Dated as of October 26, 1993
11-5/8% Subordinated Notes
due 2002
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of October 26, 1993*
Trust Indenture Indenture
Act Section Section
Sec. 310(a)(1) ............................. 608
(a)(2) ............................. 608
(b) ............................. 607, 609
Sec. 312(c) ............................. 701
Sec. 314(a) ............................. 703
(a)(4) ............................. 1018
(c)(1) ............................. 103
(c)(2) ............................. 103
(e) ............................. 103
Sec. 315(b) ............................. 601
Sec. 316(a)(last
sentence) ............................. 101 ("Out-
standing")
(a)(1)(A) ............................. 502, 512
(a)(1)(B) ............................. 513
(b) ............................. 508
(c) ............................. 105
Sec. 317(a)(1) ............................. 503
(a)(2) ............................. 504
Sec. 318(a) ............................. 108
* This reconciliation and tie shall not, for any purpose, be
deemed to be part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
Definitions and Other Provisions of
General Application
Section 101. Definitions ............................ 1
Acquired Indebtedness .................. 2
Acquisition ............................ 2
Affiliate .............................. 2
Average Life to Stated Maturity ........ 3
Bank Credit Agreement .................. 3
Board of Directors ..................... 3
Board Resolution ....................... 3
Business Day ........................... 3
Capital Lease Obligation ............... 3
Capital Stock .......................... 3
Change in Control ...................... 3
Chefmark ............................... 4
Commission ............................. 4
Company ................................ 4
Company Request or Company Order ....... 4
Consolidated Adjusted Net Income (Loss). 4
Consolidated Assets .................... 5
Consolidated Capital Expenditures ...... 5
Consolidated Fixed Charge
Coverage Ratio ....................... 5
Consolidated Interest Expense .......... 6
Consolidated Non-cash Charges .......... 6
Consolidated Tax Expense ............... 6
Corporate Trust Office ................. 6
Corporation ............................ 6
Default ................................ 6
Deferred Coupon Notes................... 6
Equitable Investors .................... 6
Event of Default ....................... 7
Exchange Act ........................... 7
Existing Assets ........................ 7
Fair Market Value ...................... 7
Note: This table of contents shall not, for any purpose, be
deemed to be a part of this Indenture.
PAGE
Federal Bankruptcy Code ................ 7
Generally Accepted Accounting
Principles or GAAP ................... 7
Guaranteed Debt ........................ 7
Holder ................................. 8
Holdings ............................... 8
Holdings Intercompany Notes ............ 8
Holdings Preferred Stock ............... 8
Indebtedness ........................... 8
Indenture .............................. 9
Intercompany Agreement ................. 9
Interest Payment Date .................. 9
Interest Rate Hedge Arrangement ........ 9
Investments ............................ 9
Lien ................................... 10
Logistical Services Agreement .......... 10
Majority-owned Subsidiary .............. 10
Management Investors ................... 10
Material Subsidiary .................... 10
Maturity ............................... 10
ML Funds ............................... 11
Newco .................................. 11
Officers' Certificate .................. 11
Opinion of Counsel ..................... 11
Outstanding ............................ 11
Pari Passu Indebtedness ................ 12
Paying Agent ........................... 12
Permitted Holders ...................... 13
Permitted Indebtedness ................. 13
Permitted Investment ................... 14
Permitted Payment ...................... 15
Permitted Senior Subordinated
Indebtedness ......................... 15
Person ................................. 15
Plainbridge ............................ 16
Predecessor Security ................... 16
Preferred Stock ........................ 16
Purchase Money Mortgages ............... 16
Qualified Capital Stock ................ 16
Recapitalization ....................... 16
Redeemable Capital Stock ............... 16
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PAGE
Redemption Date ........................ 17
Redemption Price ....................... 17
Regular Record Date .................... 17
Representative ......................... 17
Responsible Officer .................... 17
Restricted Payments .................... 17
Security and Securities ................ 17
Senior Indebtedness .................... 17
Senior Subordinated Notes .............. 18
SMG-II ................................. 18
Special Record Date .................... 18
Specified Senior Indebtedness .......... 18
Spin-Off Agreements .................... 19
Spin-Off ............................... 19
Stated Maturity ........................ 19
Subordinated Debentures ................ 19
Subordinated Indebtedness .............. 20
Subsidiary ............................. 20
Tax Sharing Agreement .................. 20
Temporary Cash Investment .............. 20
Trust Indenture Act .................... 20
Trustee ................................ 20
Unrestricted Subsidiary ................ 21
Unrestricted Subsidiary Indebtedness ... 21
Voting Stock ........................... 21
Section 102. Other Definitions ...................... 22
Section 103. Compliance Certificates and Opinions ... 22
Section 104. Form of Documents Delivered to Trustee . 23
Section 105. Acts of Holders ........................ 24
Section 106. Notices, etc., to Trustee
and Company .......................... 25
Section 107. Notice to Holders; Waiver .............. 25
Section 108. Conflict of any Provision of
Indenture with Trust Indenture Act ... 26
Section 109. Effect of Headings and Table of
Contents ............................. 26
Section 110. Successors and Assigns ................. 27
Section 111. Separability Clause .................... 27
Section 112. Benefits of Indenture .................. 27
Section 113. Governing Law .......................... 27
Section 114. Legal Holidays ......................... 27
Section 115. No Recourse Against Others ............. 27
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PAGE
ARTICLE TWO
Security Forms
Section 201. Forms Generally ........................ 28
Section 202. Form of Face of Security ............... 28
Section 203. Form of Reverse of Security ............ 30
Section 204. Form of Trustee's Certificate of
Authentication ....................... 34
ARTICLE THREE
The Securities
Section 301. Title and Terms ........................ 35
Section 302. Denominations .......................... 35
Section 303. Execution, Authentication, Delivery and
Dating ............................... 36
Section 304. Temporary Securities ................... 37
Section 305. Registration, Registration of Transfer
and Exchange ......................... 38
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities ........................... 39
Section 307. Payment of Interest; Interest Rights
Preserved ............................ 40
Section 308. Persons Deemed Owners .................. 41
Section 309. Cancellation ........................... 41
Section 310. Computation of Interest ................ 42
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge
of Indenture ......................... 42
Section 402. Application of Trust Money ............. 43
ARTICLE FIVE
Remedies
Section 501. Events of Default ...................... 44
Section 502. Acceleration of Maturity; Rescission ... 46
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee ........... 47
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PAGE
Section 504. Trustee May File Proofs of Claim ....... 48
Section 505. Trustee May Enforce Claims Without
Possession of Securities ............. 49
Section 506. Application of Money Collected ......... 49
Section 507. Limitation on Suits .................... 50
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest ............................. 51
Section 509. Restoration of Rights and Remedies ..... 51
Section 510. Rights and Remedies Cumulative ......... 51
Section 511. Delay or Omission Not Waiver ........... 51
Section 512. Control by Holders ..................... 52
Section 513. Waiver of Past Defaults ................ 52
Section 514. Undertaking for Costs .................. 52
Section 515. Waiver of Stay, Extension or
Usury Laws ........................... 53
Section 516. Unconditional Right of Holders
to Institute Certain Suits ........... 53
ARTICLE SIX
The Trustee
Section 601. Notice of Defaults ..................... 53
Section 602. Certain Rights of Trustee .............. 54
Section 603. Not Responsible for Recitals or
Issuance of Securities ............... 56
Section 604. Trustee and Agents May Hold
Securities; Collections; etc. ........ 56
Section 605. Money Held in Trust .................... 57
Section 606. Compensation and Reimbursement ......... 57
Section 607. Conflicting Interests .................. 58
Section 608. Corporate Trustee Required;
Eligibility .......................... 58
Section 609. Resignation and Removal; Appointment
of Successor ......................... 59
Section 610. Acceptance of Appointment by
Successor ............................ 61
Section 611. Merger, Conversion, Consolidation or
Succession to Business ............... 61
Section 612. Preferential Collection of Claims
Against Company ...................... 62
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PAGE
ARTICLE SEVEN
Holders' Lists and Reports by
Trustee and Company
Section 701. Disclosure of Names and Addresses
of Holders ........................... 62
Section 702. Reports by Trustee ..................... 62
Section 703. Reports by Company ..................... 63
ARTICLE EIGHT
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 801. Company May Consolidate, etc.,
Only on Certain Terms ................ 63
Section 802. Successor Substituted .................. 64
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures
without Consent of Holders ........... 65
Section 902. Supplemental Indentures
with Consent of Holders .............. 66
Section 903. Execution of Supplemental Indentures ... 67
Section 904. Effect of Supplemental Indentures ...... 67
Section 905. Conformity with Trust Indenture Act .... 67
Section 906. Reference in Securities to Supplemental
Indentures ........................... 67
Section 907. Effect on Senior Indebtedness .......... 68
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest ............................. 68
Section 1002. Maintenance of Office or Agency ........ 68
Section 1003. Money for Security Payments to Be
Held in Trust ........................ 69
Section 1004. Corporate Existence .................... 70
Section 1005. Payment of Taxes and Other Claims ...... 71
Section 1006. Maintenance of Properties .............. 71
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PAGE
Section 1007. Limitation on Indebtedness ............. 72
Section 1008. Limitation on Restricted Payments ...... 72
Section 1009. Limitation on Transactions with
Affiliates ........................... 77
Section 1010. Limitation on Liens .................... 79
Section 1011. Limitation on Other Senior
Subordinated Indebtedness ............ 79
Section 1012. Purchase of Securities Upon Change in
Control .............................. 79
Section 1013. Restrictions on Preferred Stock of
Subsidiaries ......................... 83
Section 1014. Limitations on Issuances of Guarantees
of Indebtedness ...................... 83
Section 1015. Restriction on Transfer of Assets ...... 84
Section 1016. Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries ......................... 85
Section 1017. Limitation on Unrestricted
Subsidiaries ......................... 85
Section 1018. Statement as to Compliance; Notice of
Default; Provision of Financial
Statements ........................... 86
Section 1019. Waiver of Certain Covenants ............ 87
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption .................... 87
Section 1102. Applicability of Article ............... 87
Section 1103. Election to Redeem; Notice to Trustee .. 88
Section 1104. Selection by Trustee of Securities to
Be Redeemed .......................... 88
Section 1105. Notice of Redemption ................... 88
Section 1106. Deposit of Redemption Price ............ 89
Section 1107. Securities Payable on Redemption Date .. 89
Section 1108. Securities Redeemed in Part ............ 90
ARTICLE TWELVE
Sinking Fund
Section 1201. Mandatory Sinking Fund Payments ........ 90
Section 1202. Satisfaction of Sinking Fund
Payments with Securities ............. 91
Section 1203. Redemption of Securities for
Sinking Fund ......................... 91
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PAGE
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to Senior
Indebtedness ......................... 92
Section 1302. Payment Over of Proceeds Upon
Dissolution, etc. .................... 92
Section 1303. No Payment When Specified Senior
Indebtedness in Default .............. 94
Section 1304. Payment Permitted if No Default ........ 96
Section 1305. Subrogation to Rights of Holders
of Senior Indebtedness ............... 96
Section 1306. Provisions Solely to Define
Relative Rights ...................... 96
Section 1307. Trustee to Effectuate Subordination .... 97
Section 1308. No Waiver of Subordination Provisions .. 97
Section 1309. Notice to Trustee ...................... 98
Section 1310. Reliance on Judicial Order or
Certificate of Liquidating Agent ..... 99
Section 1311. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of
Trustee's Rights ..................... 99
Section 1312. Article Applicable to Paying Agents .... 99
Section 1313. Rescission ............................. 100
Section 1314. Application by Trustee of Assets
Deposited With It .................... 100
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Option to Effect Defeasance
or Covenant Defeasance ............... 100
Section 1402. Defeasance and Discharge ............... 100
Section 1403. Covenant Defeasance..................... 101
Section 1404. Conditions to Defeasance or
Covenant Defeasance .................. 102
Section 1405. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions ....... 104
Section 1406. Reinstatement .......................... 105
TESTIMONIUM........................................... 106
SIGNATURES AND SEALS.................................. 106
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ACKNOWLEDGMENTS
EXISTING INDEBTEDNESS..............................SCHEDULE I
FORM OF INTERCOMPANY AGREEMENT.....................APPENDIX A
FORM OF HOLDINGS INTERCOMPANY NOTE.................APPENDIX B
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INDENTURE, dated as of October 26, 1993, between PATHMARK
STORES, INC., a Delaware corporation (hereinafter called the
"Company"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an
issue of its 11-5/8% Subordinated Notes due 2002 (hereinafter
called the "Securities"), 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, and shall be governed by,
the provisions of the Trust Indenture Act that are required to be
part of and to govern indentures qualified under the Trust
Indenture Act;
All acts and things necessary have been done to make
the Securities, when executed by the Company and authenticated
and delivered hereunder and duly issued by the Company, the
valid, binding and legal obligations of the Company, and to make
this Indenture a valid agreement of the Company in accordance
with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities, 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;
(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;
(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 in the United
States as of the date hereof; 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.
Certain terms, used principally in Articles Five, Six,
Ten, Thirteen and Fourteen are defined in those Articles.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, other than
Indebtedness incurred in connection with, or in contemplation of,
such Person becoming a Subsidiary or such acquisition, as the
case may be.
"Acquisition" means the acquisition of the Company by
Holdings completed in October 1987, pursuant to the Agreement and
Plan of Merger dated as of April 22, 1987 among the Company, SMG
Acquisition Corporation and Holdings, as amended.
"Affiliate" means, with respect to any specified Person,
(i) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person or (ii) for purposes of Section l009 only,
any other Person that owns, directly or indirectly, 10% or more
of such Person's Capital Stock or any officer or director of any
such Person or other Person or with respect to any natural
Person, any person having a relationship with such Person by
blood, marriage or adoption not more remote than first cousin.
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 the ownership of Voting Stock, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
- 2-
"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.
"Bank Credit Agreement" means the Credit Agreement dated
as of the date hereof among the Company and the lenders
thereunder and Bankers Trust Company, as agent, as in effect on
the date hereof, and as such agreement may be amended, renewed,
extended, supplemented or otherwise modified from time to time,
and any agreement or successive agreements governing Indebtedness
incurred to refund, refinance, restructure or replace the
Indebtedness and commitments then outstanding or permitted to be
outstanding under such Credit Agreement or other agreement.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions in The City of New York or the State of Delaware are
authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means 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, participations, or other equivalents (however
designated) of such Person's capital stock whether now
outstanding or issued after the date hereof.
"Change in Control" means an event as a result of which:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) other than Permitted Holders is or
becomes the "beneficial owner" (as
- 3-
defined in Rules 13d-3 and l3d-5 under the Exchange Act, except
that a Person shall be deemed to have "beneficial ownership" of
all shares that any 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
Voting Stock of the Company and (ii) such person succeeds in
having its nominees constitute a majority of the Company's Board
of Directors.
"Chefmark" means Chefmark, Inc., a corporation
incorporated under the laws of the State of Delaware, and any
successor thereto.
"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.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument, until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act
Sections 3l0 through 317 as they are applicable to the Company,
the term "Company" shall include any other obligor with respect
to the Securities for the purposes of complying with such
provisions.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company (i) by its
Chairman, a Vice Chairman, its President or a Vice President and
(ii) by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary and delivered to the Trustee; provided,
however, that such written request or order may be signed by any
two of the officers or directors listed in clause (i) above in
lieu of being signed by one of such officers or directors listed
in such clause (i) and one of the officers listed in clause (ii)
above.
"Consolidated Adjusted Net Income (Loss)" of the Company
means, for any period, the consolidated net income (loss) of the
Company and its consolidated Subsidiaries for such period as
determined in accordance with GAAP, adjusted by excluding (i) net
after-tax extraordinary gains or losses (less all fees and
expenses relating thereto), as the case may be, (ii) net
after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset sales, (iii) any
- 4-
depreciation and amortization expense incurred by the Company and
its consolidated Subsidiaries from the date of the Acquisition to
the date of determination resulting from (a) any write-up in the
book value of any assets due to the Acquisition and (b) any
goodwill due to the Acquisition (including any write-off or
accelerated amortization of goodwill), (iv) any expenses incurred
in connection with the Acquisition and the financing thereof and
the Recapitalization, (v) any expenses relating to the incurrence
or refinancing of Indebtedness, (vi) the net income (or loss) of
any Person (including any Unrestricted Subsidiary and excluding
the Company or a Subsidiary) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent of
the amount of dividends or other distributions actually paid to
the Company or its Subsidiaries by such other Person during such
period, (vii) net income (or net loss) of any Person combined
with the Company or any of its Subsidiaries in a "pooling of
interests" basis attributable to any period prior to the date of
combination and (viii) non-cash charges of the Company and its
Subsidiaries resulting from the application of Statement of
Financial Accounting Standards No. 106 ("SFAS 106") to the extent
such charges exceed the cash payments for benefits covered by
SFAS 106 for the relevant period.
"Consolidated Assets" means the net book value of the
Existing Assets shown on the balance sheet of the Company, as
determined in accordance with GAAP consistently applied, as of
the last day of the Company's last fiscal quarter prior to the
date hereof.
"Consolidated Capital Expenditures" means cash capital
expenditures reflected in the consolidated statement of cash
flows of the Company and Capital Lease Obligations that are on
the consolidated balance sheet of the Company and its
Subsidiaries, in each case in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" of the
Company means, for any period, the ratio of (i) the sum of
Consolidated Adjusted Net Income, Consolidated Interest Expense,
Consolidated Tax Expense and Consolidated Non-cash Charges
deducted in computing Consolidated Adjusted 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
(ii) the sum of such Consolidated Interest Expense for such
period; provided that, in making such computation, the
Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and bearing a floating
interest rate shall be computed as if the rate in effect on the
date of computation had been the applicable rate for the entire
period; provided, further, that
- 5-
in making any calculation prior to the first anniversary date of
the Recapitalization, the Recapitalization shall be deemed to
have taken place on the first day of such period.
"Consolidated Interest Expense" means, for any period,
the amount which, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption) on a
consolidated statement of earnings of the Company and its
Subsidiaries for such period minus the aggregate amount for such
period of interest imputed on future liabilities of the Company
and its Subsidiaries, other than Indebtedness, recorded at
present value. Consolidated Interest Expense shall include
accruals in respect of Interest Rate Hedge Arrangements (but
shall exclude any such accruals in the nature of amortization of
front-end fees or other similar payments).
"Consolidated Non-cash Charges" of the Company means,
for any period, the aggregate depreciation, amortization and
other non-cash charges of the Company and its consolidated
Subsidiaries for such period, as determined in accordance with
GAAP (excluding any such non-cash charge which requires an
accrual of or reserve for cash charges for any future period).
"Consolidated Tax Expense" of the Company means, for any
period, as applied to the Company, the provision for federal,
state, local and foreign income taxes of the Company and its
consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution of this Indenture is located at Rodney Square North,
Wilmington, Delaware 19890.
"Corporation" includes corporations, associations,
partnerships, companies and business trusts.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Deferred Coupon Notes" means the Junior Subordinated
Deferred Coupon Notes due 2003 of the Company in aggregate
principal amount at maturity of $225,250,000.
"Equitable Investors" means The Equitable Life Assurance
Society of the United States and any of its Affiliates that
beneficially own, directly or indirectly, shares of Capital Stock
of SMG-II, Holdings, Newco or the Company.
- 6-
"Event of Default" has the meaning specified in Article
Five.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Existing Assets" means the assets and other property
held by the Company (and not its subsidiaries) as of the last day
of the Company's last fiscal quarter prior to the date hereof,
adjusted by excluding any assets and other property transferred
to Newco in the Spin-Off, plus any assets held by the Company
(and not its subsidiaries) irrevocably designated from time to
time by the Company as Existing Assets.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's
length transaction between an informed and willing seller under
no compulsion to sell and an informed and willing buyer.
"Federal Bankruptcy Code" means the Bankruptcy Act of
Title 11 of the United States Code, as amended from time to time.
"Generally Accepted Accounting Principles" or "GAAP"
means generally accepted accounting principles in the United
States, consistently applied, that are in effect from time to
time; provided, however, that with respect to the obligations of
any Person under Articles Eight and Ten and the definitions
applicable thereto, "GAAP" means generally accepted accounting
principles in the United States as in effect on the date hereof.
"Guaranteed Debt" of any Person means, without
duplication, all Indebtedness of any other Person referred to in
the definition of Indebtedness contained in this Section 101
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) other than with respect to the Logistical
Services Agreement or any Spin-Off Agreement, 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 or to assure the holder of such
Indebtedness against loss, (iii) other than with respect to the
Logistical Services Agreement or any Spin-Off Agreement, to
supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services to be
acquired by such debtor irrespective of whether such property is
received or such
- 7-
services are rendered) or (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, or
any obligation or liability of such Person in respect of
leasehold interests assigned by such Person to any other Person.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Holdings" means Supermarkets General Holdings
Corporation, a Delaware corporation, and any successor thereto.
"Holdings Intercompany Notes" means the 11-5/8%
subordinated note and the 12-5/8% subordinated debenture each
issued by the Company to Holdings in the forms attached hereto as
Appendix B and in aggregate principal amounts not in excess of
the principal amounts outstanding on the date hereof.
"Holdings Preferred Stock" means Holdings' Cumulative
Exchangeable Redeemable Preferred Stock, par value $.01 per
share, having a liquidation preference of $25 per share and
maturing on December 31, 2007, that is outstanding on the date
hereof.
"Indebtedness" means with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed
money (including overdrafts) or for the deferred purchase price
of property or services, excluding any trade payables, import
letters of credit and other accrued current liabilities incurred
in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such
Person in connection with any standby 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 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 accounts payable arising in
the ordinary course of business, (iv) all Capital Lease
Obligations of such Person, (v) all Indebtedness referred to in
(but not excluded from) clause (i), (ii), (iii) or (iv) above of
other Persons and all dividends of other Persons, the payment of
which is secured by (or for which
- 8-
the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien, upon or in 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, (vi) all
Guaranteed Debt of such Person, (vii) all Redeemable Capital
Stock issued by such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends and (viii) all obligations under
interest rate hedge contracts of such Person. 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 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
(including all exhibits and schedules hereto) 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.
"Intercompany Agreement" means the agreement in the form
attached hereto as Appendix A, as amended or modified in
accordance with the terms of this Indenture.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Hedge Arrangement" means any rate swap
transaction under a rate swap agreement to which the Company is a
party or beneficiary, or becomes a party or beneficiary, and any
interest rate protection agreement, interest rate future,
interest rate option or other interest rate hedge arrangement to
or under which the Company is a party or a beneficiary, or
becomes a party or a beneficiary, or to or under which any
Subsidiary of the Company is or becomes such a party or
beneficiary if the obligations of such Subsidiary thereunder are
guaranteed by the Company.
"Investments" of any Person means, directly or
indirectly, any advance, loan or other extension of credit or
capital contribution by such Person 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) any
- 9-
other Person, or any purchase or acquisition by such Person of
any stock, bonds, notes, debentures or other securities issued or
owned by any other Person. For the purpose of making any
calculations hereunder, (i) Investment shall include the Fair
Market Value of the net assets of any Subsidiary at the time that
such Subsidiary is designated an Unrestricted Subsidiary and
shall exclude the Fair Market Value of the net assets of any
Unrestricted Subsidiary that is designated a Subsidiary and
(ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at Fair Market Value at the time of
such transfer; provided that in each case, the Fair Market Value
of an asset or property shall be as determined by the Board of
Directors of the Company in good faith.
"Lien" means any mortgage, charge, pledge, lien,
privilege, security interest or encumbrance of any kind.
"Logistical Services Agreement" means the Logistical
Services Agreement dated as of October 26, 1993 between the Company
and Plainbridge, as amended or modified in accordance with the
provisions hereof.
"Majority-owned Subsidiary" means a Subsidiary at least
50% 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 of the Subsidiaries, or the Company and one or more of
the Subsidiaries, provided that Majority-owned Subsidiary shall
not include any such Subsidiary if the equity ownership or the
Voting Stock of such Subsidiary not owned by the Company and/or
one or more of the Subsidiaries is owned by Holdings and/or one
or more Affiliates of Holdings other than the Company and its
Subsidiaries.
"Management Investors" means the officers and other
members of the management of the Company who at any particular
date shall beneficially own, directly or indirectly, Voting Stock
of the Company.
"Material Subsidiary" means, at any particular time, any
Subsidiary of the Company that, together with the Subsidiaries of
such Subsidiary, (a) accounted for more than 10% of the
consolidated revenues of the Company and its Subsidiaries for the
most recently completed fiscal year of the Company or (b) was the
owner of more than l0% of the consolidated assets of the Company
and its Subsidiaries as at the end of such fiscal year, all as
shown on the consolidated financial statements of the Company and
its Subsidiaries for such fiscal year.
"Maturity" when used with respect to any Security means
the date on which the principal of such Security becomes
- 10-
due and payable as therein or herein provided, whether at Stated
Maturity, Change in Control Purchase Date or Redemption Date and
whether by declaration of acceleration, Change in Control, call
for redemption or otherwise.
"ML Funds" means Merrill Lynch Capital Appreciation
Partnership No. IX, L.P., a Delaware partnership, ML Offshore LBO
Partnership No. IX, a Cayman Islands partnership, ML Employees
LBO Partnership No. I, L.P., a Delaware partnership, Merrill
Lynch Interfunding Inc., a Delaware corporation, Merchant Banking
L.P. No. I, a Delaware partnership, Merrill Lynch KECALP L.P., a
Delaware partnership, Merrill Lynch Capital Appreciation
Partnership No. B-X, L.P., a Delaware partnership, ML Offshore
LBO Partnership No. B-X, a Cayman Islands partnership, MLCP
Associates, L.P. No. II, a Delaware partnership, Merrill Lynch
Venture Capital, Inc., a Delaware corporation and any Affiliates
of the foregoing that beneficially own, directly or indirectly,
shares of Capital Stock of SMG-II.
"Newco" means PTK Holdings, Inc., a corporation
incorporated under the laws of the State of Delaware, and any
successor thereto.
"Officers' Certificate" means a certificate signed by
(i) the Chairman, a Vice Chairman, the President, a Vice
President or the Treasurer of the Company and (ii) the Secretary
or an Assistant Secretary of the Company and delivered to the
Trustee; provided, however, that such certificate may be signed
by two of the officers or directors listed in clause (i) above in
lieu of being signed by one of such officers or directors listed
in such clause (i) and one of the officers listed in clause (ii)
above.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be acceptable
to the Trustee. Each such opinion shall include the statements
provided for in Trust Indenture Act Section 314(e) to the extent
applicable.
"Outstanding" when used with respect to Securities
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment,
redemption or purchase money in the necessary
- 11-
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
Securities and the Trustee or such Paying Agent is not
prohibited from paying such money to the Holders on that date
pursuant to the terms of Article Thirteen of this Indenture;
provided that, if such Securities 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;
(c) Securities, except to the extent provided in
Sections 1402 and 1403, with respect to which the Company has
effected defeasance or covenant defeasance as provided in
Article Fourteen; and
(d) Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands the Securities
are valid obligations of the Company;
provided, however, that, in determining whether the Holders of
the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, notice, direction,
consent or waiver hereunder, Securities owned by the Company, or
any other obligor upon the Securities 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 relying upon any such request,
demand, authorization, notice, direction, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities 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 Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the
Company that is pari passu in right of payment to the Securities.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (or premium, if any) or interest
on any Securities on behalf of the Company.
- 12 -
"Permitted Holders" means ML Funds, the Management
Investors and the Equitable Investors, provided that the
Equitable Investors shall not be a Permitted Holder if they are a
member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) in respect of the Company which does not include
the Management Investors and the ML Funds.
"Permitted Indebtedness" means any of the following
Indebtedness of the Company or any Subsidiary, as the case may
be:
(i) Indebtedness under the Bank Credit Agreement in an
aggregate principal amount at any one time outstanding not to
exceed $575,000,000;
(ii) Indebtedness under the Securities in an aggregate
principal amount at any one time outstanding not to exceed
$197,567,000;
(iii) Indebtedness outstanding on the date hereof and
listed on Schedule I hereto;
(iv) Indebtedness under the Senior Subordinated Notes,
the Subordinated Debentures and the Deferred Coupon Notes;
(v) obligations pursuant to interest rate hedge
contracts;
(vi) (A) Indebtedness under Capital Lease Obligations
and (B) Purchase Money Mortgages;
(vii) Indebtedness in respect of trade letters of credit
and standby letters of credit incurred in the ordinary course
of business;
(viii) Indebtedness of the Company or any Subsidiary to
any one or the other of them; provided that the obligation of
the obligor of such Indebtedness is subject to the
Intercompany Agreement;
(ix) Indebtedness of any Subsidiary made in accordance
with the applicable provisions of Section 1014 or
Section 1015;
(x) Indebtedness consisting of guarantees, indemnities
or obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets;
(xi) any obligation or liability in respect of leasehold
interests assigned by the Company or any Subsidiary to any
other Person;
- 13-
(xii) Indebtedness under the Holdings Intercompany Notes;
(xiii) Indebtedness represented by letters of credit not
exceeding an aggregate amount of $45,000,000 at any one time
outstanding (other than those permitted by clause (vii)
above);
(xiv) Indebtedness incurred to finance Consolidated
Capital Expenditures (including Acquired Indebtedness to the
extent that, in conformity with GAAP, assets acquired in
conjunction with such Acquired Indebtedness are included in
the property, plant or equipment reflected on the
consolidated balance sheet of the Company and its
Subsidiaries);
(xv) Indebtedness in addition to that described in
clauses (i) through (xiv) of this definition of "Permitted
Indebtedness", and any renewals, extensions, substitutions,
refinancings or replacements of such Indebtedness, not to
exceed $75,000,000 outstanding at any one time in the
aggregate; and
(xvi) any renewals, extensions, substitutions,
refinancings or replacements (each, for purposes of this
clause, a "refinancing") of any Indebtedness described in
clauses (ii), (iii), (iv) and (xiv)), including any
successive refinancings so long as the aggregate amount of
Indebtedness represented thereby is in a principal amount
that does not exceed the principal amount so refinanced plus
the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the
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;
provided that for purposes of this clause, the principal
amount of any Indebtedness shall be deemed to mean the
principal amount thereof or, if such Indebtedness 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 and such
refinancing does not reduce the Average Life to Stated
Maturity or the final Stated Maturity of such Indebtedness.
"Permitted Investment" means any of the following: (i)
any Investment in any Majority-owned Subsidiary by the Company or
any other Majority-owned Subsidiary, any Investment in any Person
by the Company or any Majority-owned Subsidiary as a result of
which such Person becomes a Majority-owned Subsidiary or any
Investment in the Company by any Majority-owned Subsidiary;
(ii) any Temporary Cash Investment; (iii) intercompany
- 14-
Indebtedness to the extent permitted under clause (viii) of the
definition of "Permitted Indebtedness" contained in this
Section 101; (iv) Investments in existence on the date hereof and
any Investment with respect to which the Company or any
Subsidiary is legally committed to make, but only if such
commitment was in existence on the date hereof in each case,
other than any Investment in any Unrestricted Subsidiary;
(v) sales of goods on trade credit terms consistent with the
Company's past practices or as otherwise consistent with trade
credit terms in common use in the industry; (vi) Investments
pursuant to the Logistical Services Agreement or Spin-Off
Agreements; (vii) any Investment in any Person acquired or
retained in connection with any asset sale or other disposition
of assets; (viii) loans or advances to employees made in the
ordinary course of business; and (ix) in addition to "Permitted
Investments" described in the foregoing clauses (i) through
(viii), Investments in the aggregate amount of $45,000,000 at any
one time outstanding.
"Permitted Payment" has the meaning specified in
Section 1008.
"Permitted Senior Subordinated Indebtedness" means
(i) the Senior Subordinated Notes, (ii) in addition to (i), other
Indebtedness of the Company in an aggregate principal amount not
to exceed $200,000,000 at any one time outstanding and (iii) any
renewals, extensions, substitutions, refinancings or replacements
(each, for purposes of this definition, a "refinancing") of any
Indebtedness described in the foregoing clause (i), including any
successive refinancings, so long as the aggregate amount of
Indebtedness represented thereby in a principal amount that does
not exceed the principal amount so refinanced plus the amount of
any premium required to be paid in connection with such
refinancing pursuant to the terms of the 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; provided that for purposes of this clause, the
principal amount of any Indebtedness shall be deemed to mean the
principal amount thereof or, if such Indebtedness 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.
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
- 15-
"Plainbridge" means Plainbridge, Inc., a corporation
incorporated under the laws of the State of Delaware, and any
successor thereto.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for a mutilated Security
or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated) of such Person's preferred or preference
stock whether now outstanding or issued after the date hereof,
and includes, without limitation, all classes and series of
preferred or preference stock.
"Purchase Money Mortgages" means Indebtedness of the
Company or any Subsidiary (i) issued to finance or refinance the
purchase or construction of any assets of the Company or any
Subsidiary or (ii) secured by a Lien on any assets of the Company
or any Subsidiary where the lender's sole recourse is to the
assets so encumbered, in either case (a) to the extent the
purchase or construction prices for such assets are or should be
included in "addition to property, plant or equipment" in
accordance with GAAP and (b) if the purchase or construction of
such assets is not part of any acquisition of a Person or
business unit.
"Qualified Capital Stock" of any Person means any and
all Capital Stock of such Person other than Redeemable Capital
Stock.
"Recapitalization" means the Recapitalization described
in the Amended and Restated Prospectus and Consent Solicitation,
as amended or supplemented, relating to the issuance of the
Securities.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, 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 the final Stated Maturity of the Securities or
is redeemable at the option of the holder thereof at any time
prior to such final Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to such final
Stated Maturity.
- 16-
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the June 1 or December 1 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Representative" means the indenture trustee or other
trustee, agent or representative for an issue of Senior
Indebtedness.
"Responsible Officer", when used with respect to the
Trustee, means any officer assigned to the Corporate Trust
Administration of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers or assigned by the Trustee
to administer corporate trust matters at its Corporate Trust
Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning specified in
Section 1008.
"Security" and "Securities" have the meaning set forth
in the second paragraph of this Indenture.
"Senior Indebtedness" means the principal of, premium,
if any, and interest on (such interest on Senior Indebtedness,
wherever referred to in this Indenture, being deemed to include
interest accruing after the filing of a petition initiating any
proceeding pursuant to any bankruptcy law in accordance with and
at the rate (including any rate applicable upon any default or
event of default, to the extent lawful) specified in any document
evidencing the Senior Indebtedness, whether or not the claim for
such interest is allowed as a claim after such filing in any
proceeding under such bankruptcy law) any Indebtedness of the
Company (other than as otherwise provided in this definition),
whether outstanding on the date hereof or thereafter created,
incurred or assumed in accordance with the provisions of this
Indenture, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly
- 17-
provides that such Indebtedness shall not be senior in right of
payment to the Securities. Without limiting the generality of
the foregoing, "Senior Indebtedness" shall include the principal
of, premium, if any, and interest on (including interest accruing
after the occurrence of an event of default) all obligations of
every nature of the Company from time to time owed under
Permitted Senior Subordinated Indebtedness and under the Bank
Credit Agreement, including, without limitation, principal of and
interest on, and all fees, expenses, indemnities, payments for
early termination of Interest Rate Hedge Arrangements and
reimbursement obligations under letters of credit payable under
the Bank Credit Agreement. Notwithstanding the foregoing,
"Senior Indebtedness" shall not include (i) Indebtedness
evidenced by the Securities, the Subordinated Debentures and the
Deferred Coupon Notes, (ii) Indebtedness that is subordinate or
junior in right of payment to any Indebtedness of the Company
(other than Permitted Senior Subordinated Indebtedness), except
for subordination as a result of intercreditor arrangements with
respect to collateral, (iii) Indebtedness that when incurred, and
without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to the Company,
(iv) Indebtedness that is represented by Redeemable Capital
Stock, (v) Indebtedness of the Company to a subsidiary of the
Company or any other Affiliate of the Company or any of such
Affiliate's subsidiaries, including the Holdings Intercompany
Notes and (vi) that portion of any Indebtedness (other than any
Indebtedness provided by any lender pursuant to the Bank Credit
Agreement, except to the extent such Indebtedness is provided
with actual knowledge on the part of any such lender that the
incurrence thereof by the Company is a violation of this
Indenture) which at the time of issuance is issued in violation
of this Indenture.
"Senior Subordinated Notes" means the Company's 11 5/8%
Senior Subordinated Notes due 2003 in aggregate principal amount
not in excess of $440,000,000.
"SMG-II" means SMG-II Holdings Corporation, a Delaware
corporation, and any successor thereto.
"Special Record Date" means a date fixed by the Trustee
for the payment of any Defaulted Interest pursuant to
Section 307.
"Specified Senior Indebtedness" means (i) all Senior
Indebtedness under the Bank Credit Agreement, (ii) all Senior
- 18-
Indebtedness under the Senior Subordinated Notes and (iii) any
other issue of Senior Indebtedness or refinancings thereof
permitted by said definition having a principal amount of at
least $100,000,000 and is specifically designated in the
instrument evidencing such Senior Indebtedness as "Specified
Senior Indebtedness" by the Company. For purposes of this
definition: (a) the amount of the Indebtedness of the Company
with respect to any Interest Rate Hedge Arrangement shall be
deemed to be the lesser of (x) 25% of the notional amount of such
Interest Rate Hedge Arrangement, or (y) the maximum amount the
Company could be required to pay under such Interest Rate Hedge
Arrangement; and (b) a refinancing of any such Indebtedness shall
be treated as such only if it ranks or would rank pari passu with
the Indebtedness refinanced.
"Spin-Off Agreements" means (i) the Distribution and
Transfer Agreement dated as of May 3, 1993 among the Company,
Holdings and Chefmark; (ii) the Distribution and Transfer
Agreement dated as of October 26, 1993 among the Company, Newco and
Plainbridge; (iii) the Blair Services Agreement dated as of
October 26, 1993 between the Company and Plainbridge; (iv) the
Rickel Services Agreement dated as of October 26, 1993 between
the Company and Plainbridge; (v) the Chefmark Services Agreement
dated as of May 3, 1993 between the Company and Chefmark;
(vi) the Tax Sharing Agreement; (vii) the Chefmark Supply
Agreement dated May 3, 1993 between the Company and Chefmark; and
(viii) leases between the Company as lessee and Plainbridge as
lessor entered into on the date of this Indenture, in each case
as amended or modified in accordance with the provisions hereof.
"Spin-Off" means the contribution by the Company to Plainbridge of
the Rickel home center business, the warehouse, distribution and
transportation operations and the inventory therein that service
the Pathmark supermarkets and drug stores and certain other
assets and the distribution of the shares of Plainbridge to Newco.
"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 such Indebtedness or such installment of
interest is due and payable.
"Subordinated Debentures" means the 12-5/8% Subordinated
Debentures due 2002 of the Company in aggregate principal amount
not in excess of the aggregate principal amount outstanding on
the date hereof.
- 19-
"Subordinated Indebtedness" means Indebtedness of the
Company subordinated in right of payment to the Securities.
"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; provided that an Unrestricted Subsidiary shall not
be deemed to be a Subsidiary for purposes of this Indenture.
"Tax Sharing Agreement" means the Tax Sharing Agreement
dated as of the date of the Spin-Off between the Company and SMG-II, as
amended or modified in accordance with the provisions hereof.
"Temporary Cash Investment" means (i) any evidence of
Indebtedness, maturing not more than 180 days after the date of
acquisition, issued by the United States of America, or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of
America, (ii) any certificate of deposit, maturing not more than
180 days after the date of acquisition, issued by, or time
deposit of, a commercial banking institution that has combined
capital and surplus of not less than $300,000,000, whose debt is
rated at the time as of which any investment therein is made, of
"A" (or higher) according to Moody's Investors Service, Inc.
("Moody's"), or "A" (or higher) according to Standard & Poor's
Corporation ("S&P"), (iii) commercial paper, maturing not more
than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate or Subsidiary of the
Company) organized and existing under the laws of the United
States of America, with a rating, at the time as of which any
investment therein is made, of "P-2" (or higher) according to
Moody's or "A-2" (or higher) according to S&P, (iv) any
short-term, tax-exempt investment in indebtedness issued by a
municipality existing under the laws of the United States of
America with 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, and (v) any money market deposit
accounts issued or offered by any domestic commercial bank having
capital and surplus in excess of $300,000,000.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, and as in force at the date as of which this
instrument was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, until a successor Trustee
shall have become such pursuant to the applicable
- 20-
provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means (i) any subsidiary of
the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors
of the Company, as provided below) and (ii) any subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Company
may designate any subsidiary of the Company (including any newly
acquired or newly formed subsidiary) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) such
subsidiary is not liable, directly or indirectly, with respect to
any Indebtedness other than Unrestricted Subsidiary Indebtedness
and (b) any Investment in such subsidiary made as a result of
designating such subsidiary an Unrestricted Subsidiary shall not
violate the provisions of Section 1017. Any such designation by
the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a Board Resolution giving
effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing
conditions. The Board of Directors of the Company may designate
any Unrestricted Subsidiary as a Subsidiary; provided that
immediately after giving effect to such designation, the Company
could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the restrictions of
Section 1007.
"Unrestricted Subsidiary Indebtedness" of any
Unrestricted Subsidiary means Indebtedness of such Unrestricted
Subsidiary (i) as to which neither the Company nor any Subsidiary
is directly or indirectly liable (by virtue of the Company or any
such Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), except
Guaranteed Debt of the Company or any Subsidiary to any
Affiliate, in which case (unless the incurrence of such
Guaranteed Debt resulted in a Restricted Payment at the time of
incurrence) the Company shall be deemed to have made a Restricted
Payment (as defined in Section 1008) equal to the principal
amount of any such Indebtedness to the extent guaranteed at the
time such Affiliate is designated an Unrestricted Subsidiary and
(ii) which, upon the occurrence of a default with respect
thereto, does not result in, or permit any holder of any
Indebtedness of the Company or any Subsidiary to declare, a
default on such Indebtedness of the Company or any Subsidiary or
cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Voting Stock" means stock of the class or classes
pursuant to which the holders thereof have the general voting
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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).
Section 102. Other Definitions.
Defined in
Term Section
"Act"............................................. 105
"Change in Control Notice" ....................... 1012
"Change in Control Offer" ........................ 1012
"Change in Control Purchase Date" ................ 1012
"Change in Control Purchase Notice" .............. 1012
"Change in Control Purchase Price" ............... 10l2
"covenant defeasance" ............................ 1403
"Defaulted Interest" ............................. 307
"defeasance" ..................................... l402
"incorporated provision" ......................... 108
"Notice of Default" .............................. 501
"Security Register" .............................. 305
"Security Registrar" ............................. 305
"Surviving Entity" ............................... 801
"U.S. Government Obligations" .................... 1404
Section 103. 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 (other than the
certificates required by Section 1018(a)) with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
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(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 104. 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 a 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. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
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statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 105. 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 agent duly appointed
in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Trust Indenture Act Section 315) 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 in any reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for
the determination of such 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 Trust Indenture Act Section 316(c), any such
record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not more than 30
days prior to the first solicitation of Holders generally in
connection therewith and no 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 Securities then
- 24-
Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Securities then
Outstanding shall be computed as of such record date; provided
that no such request, demand, authorization, direction, notice,
consent, waiver or other Act 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 six
months after the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holder of any
Security shall bind every future Holder of the same Security or
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the
Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such
Security.
Section 106. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(a) the Trustee by any Holder, any Representative or
the Company shall be sufficient for every purpose hereunder
if made, given, furnished or delivered, in writing, to or
with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration; or
(b) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or
delivered in writing or mailed, first-class postage prepaid,
to the Company addressed to it c/o Pathmark Stores, Inc., 301
Blair Road, Woodbridge, New Jersey 07095, Attention:
President, or at ay other address furnished in writing to the
Trustee by the Company.
The Company shall provide the Trustee in writing with
the name and address of the agent bank under the Bank Credit
Agreement as of the effective date of this Indenture and shall
promptly provide the Trustee in writing with any change in such
information.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
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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 that 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 when mailed to a
Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually
received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause, it shall be
impracticable to mail notice of any event as required by any
provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
Section 108. Conflict of any Provision of Indenture
with Trust Indenture Act.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed
by Sections 310 to 318, inclusive, of the Trust Indenture Act, or
conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by
operation of such Trust Indenture Act Sections, such imposed
duties or incorporated provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 109. 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.
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Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its respective successors and assigns, whether
so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the
Securities 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person (other than the parties
hereto and their successors hereunder, any Paying Agent, the
Holders and the holders of Senior Indebtedness) any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York, without giving effect to the conflicts of laws principles
thereof.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, any date
established for payment of Defaulted Interest pursuant to
Section 307, or any Maturity with respect to any Security shall
not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) 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, or date
established for payment of Defaulted Interest pursuant to
Section 307, or Maturity, and no interest shall accrue with
respect to such payment for the period from and after such
Interest Payment Date, or date established for payment of
Defaulted Interest pursuant to Section 307, or Maturity, as the
case may be, to the next succeeding Business Day.
Section 115. No Recourse Against Others.
A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations
- 27-
of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or
their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate 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 Securities, as
evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed
or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
The form of the face of the Securities shall be
substantially as follows:
PATHMARK STORES, INC.
ll-5/8% Subordinated Note
due 2002
No. $
Pathmark Stores, Inc., a Delaware corporation (herein
called the "Company", which term includes any successor entity
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to or registered assigns, the
principal sum of Dollars on June 15, 2002, at the
office or agency of the Company referred to below,
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and to pay interest thereon on December 15, 1993 and semiannually
thereafter on June 15 and December 15 in each year and at Stated
Maturity, from June 15, 1993 or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, at the rate of 11-5/8% per annum, until the principal hereof
is paid 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 Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the June 1 or December 1 (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, and interest on such defaulted interest at the then
applicable interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
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
Securities 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) and
interest on this Security 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 by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
duly executed by the Trustee referred to on the reverse
- 29-
hereof by manual signature, this Security 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: PATHMARK STORES, INC.
By
Attest:
By
[SEAL]
Authorized Signature
Section 203. Form of Reverse of Security.
The form of the reverse of the Securities shall be
substantially as follows:
This Security is one of a duly authorized issue of
securities of the Company designated as its 11-5/8% Subordinated
Notes due 2002 (herein called the "Securities"), limited (except
as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $ , which may be issued
under an indenture (herein called the "Indenture") dated as of
, 1993, between the Company and Wilmington Trust Company,
as trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and
delivered.
The Securities are subject to redemption otherwise than
through the operation of the sinking fund (as described below)
upon not less than 21 nor more than 60 days' notice, in amounts
of $1,000 or an integral multiple of $1,000, at any time on or
after June 15, 1997, as a whole or in part, at the election of
the Company, at a Redemption Price equal to the percentage of the
principal amount set forth below if redeemed
- 30-
during the 12-month period beginning June 15 of the years
indicated below:
Year Redemption Price
1997 105.8125%
1998 103.8750%
1999 101.9375%
and thereafter at 100% of the principal amount, together in the
case of any such redemption with accrued interest, if any, to the
Redemption Date (subject to the right of Holders of record on
relevant Regular Record Dates to receive interest due on a
Interest Payment Date), all as provided in the Indenture.
In the event that a Change in Control occurs, each
Holder shall have the right to require that the Company
repurchase such Holder's Securities in whole or in part in
integral multiples of $1,000 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. Within 30
days following a Change in Control, the Company covenants to
either (i) repay in full all Indebtedness under the Bank Credit
Agreement and permanently reduce the commitments of the lenders
thereunder or offer to repay in full all such Indebtedness and
permanently reduce such commitments and repay the Indebtedness
and permanently reduce the commitment of each lender that
accepted such offer or (ii) obtain the requisite consent under
the Bank Credit Agreement to permit the repurchase of the
Securities.
The Securities are also subject to redemption on June 15
in each of the years 2000 and 2001 through the operation of a
sinking fund, at a Redemption Price equal to 100% of the
principal amount, together with accrued and unpaid interest, if
any, to the Redemption Date, all as provided in the Indenture.
The Company may, at its option, receive a credit against the
sinking fund obligation equal to the aggregate principal amount
of Securities acquired by the Company and surrendered to the
Trustee for cancellation and of Securities redeemed or called for
redemption otherwise than through operation of the sinking fund
that have not previously been so credited for such purpose by the
Trustee.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Date referred to on
the face hereof. Securities (or portions thereof) for whose
- 31-
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 Security in part
only, a new Security or Securities 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 Securities 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 on this
Security and (b) certain restrictive covenants and the related
Defaults and Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply
to this Security.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal
amount of the Securities at the time Outstanding, on behalf of
the Holders of all the Securities, to waive compliance by the
Company 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 Security
shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
The indebtedness evidenced by the Securities is
subordinated in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness of the Company whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be
bound by such provisions and authorizes and expressly directs the
Trustee, on his behalf, to take such action as may be necessary
or appropriate to effectuate the subordination provided for in
the Indenture and appoints the
- 32-
Trustee his attorney-in-fact for such purpose; provided that the
indebtedness evidenced by this Security shall cease to be so
subordinate and subject in right of payment upon any defeasance
of this Security as provided in the Indenture.
No reference herein to the Indenture and no provision of
this Security 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) and interest on
this Security 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 Security is
registrable on the Security Register of the Company, upon
surrender of this Security 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 Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities 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 Securities are
exchangeable for a like aggregate principal amount of Securities
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 or redemption of Securities, but the Company
may require payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental
charges payable in connection with any registration of transfer
or exchange.
Prior to the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any agent shall be affected by
notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
- 33-
Customary abbreviations may be used in the name of a
Holder or a assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST
(=Custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
I/We assign and transfer this Security to
Insert assignee's soc. sec. or tax ID no. ........
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
(Sign exactly as your name appears on the other side of this Security.)
Signature Guaranteed:
(Signature must be guaranteed by a member firm of a principal stock
exchange or a
commercial bank or trust company.)
Section 204. Form of Trustee's Certificate of
Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY
as Trustee
By
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is limited to
$ , except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 303, 304, 305, 306, 906,
1012 or 1108.
The Securities shall be known and designated as the
"11-5/8% Subordinated Notes due 2002" of the Company. Their
Stated Maturity shall be June 15, 2002, and they shall bear
interest at the rate of 11-5/8% per annum from June 15, 1993 or
the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable on
December 15, 1993 and semi-annually thereafter on June 15 and
December 15 in each year and at said Stated Maturity, until the
principal thereof is paid or duly provided for. Subject to
Article Thirteen, interest on any overdue amount of principal,
interest (to the extent lawful) or premium, if any, shall be
payable on demand.
The principal of (and premium, if any) and interest on
the Securities 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 check mailed to
addresses of the Persons entitled thereto as such addresses shall
appear on the Security Register.
The Securities shall be redeemable as provided in
Article Eleven.
The Securities shall be entitled to the benefits, and
shall be redeemable through the operation, of the sinking fund as
provided in Article Twelve.
The Indebtedness evidenced by the Securities shall be
subordinated in right of payment to Senior Indebtedness as
provided in Article Thirteen.
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any
integral multiple thereof.
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Section 303. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of the
Company by any two of the following: its Chairman, one of its
Vice Chairmen, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or
facsimile.
Securities 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 Securities or did not
hold such offices on the date of such Securities.
The Trustee shall (upon Company Order) authenticate and
deliver Securities for original issue in an aggregate principal
amount of up to $197,567,000. At any time and from time to time
after the execution and delivery of this Indenture, the Company
may deliver Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee
in accordance with such Company Order shall authenticate and
deliver such Securities as provided in this Indenture and not
otherwise.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by
the Trustee by manual signature of one of its duly authorized
signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
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 substantially all
of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or surviving such
merger, or into which the Company shall have been merged, or the
successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto
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with the Trustee pursuant to Article Eight, any of the Securities
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 Securities 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 Securities
surrendered for such exchange and of like principal amount; and
the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities 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
Securities, such successor Person, at the option of any Holder
but without expense to such Holder, shall provide for the
exchange of all Securities at the time Outstanding held by such
Holder for Securities authenticated and delivered in such new
name.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities 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
Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities.
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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 Securities and of transfers of Securities.
The Trustee (and any other office or agency so designated) is
hereby initially appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any
Security at the office or agency of the Company designated
pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations and of
a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denomination or
denominations of a like aggregate principal amount upon surrender
of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer, or for exchange or redemption, shall (if so required
by the Company or the Security Registrar) 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 Securities, but the Company
may require payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other
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governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 303, 304, 306, 906, l0l2 or 1108
not involving any transfer.
The Company shall not be required (a) to issue, register
the transfer of or exchange any Security during a period
beginning at the opening of business (i) 15 days before the
mailing of a notice of redemption of the Securities selected for
redemption under Section 1104 or l203 and ending at the close of
business on the day of such mailing or (ii) 15 days before an
Interest Payment Date and ending on the close of business on the
Interest Payment Date, or (b) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of Securities being redeemed
in part.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any
Security, 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 and any agent of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a replacement
Security of like tenor and principal amount, and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a replacement
Security, pay such Security.
Upon the issuance of any replacement Securities under
this Section, the Company may require the payment of a sum
sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute
a contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at anytime enforceable by anyone and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
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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 Securities.
Section 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Security 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 that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date and interest on such defaulted interest at the applicable
interest rate borne by the Securities, to the extent lawful (such
defaulted interest (and such interest thereon) herein
collectively called "Defaulted Interest"), shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder; and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor Securities) 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 Security 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 Subsection 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 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
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Company of such Special Record Date. In the name and at the
expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Subsection (b).
(b) 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
Securities 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 Subsection, such payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment pursuant to Section l202 shall, if
surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company
shall deliver to the Trustee for cancellation any
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Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the
basis of a year of twelve 30-day months.
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 Securities herein expressly provided
for) and the Trustee, on demand of and at the expense of the
Company shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited
in trust 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
(2) all such Securities 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, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
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Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (2)(i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
cash in U.S. Dollars or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that (i) all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with and (ii) 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 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 (2) of Subsection (a) of this Section, the
obligations of the Trustee under Section 402 and the last
paragraph of Section l003 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 Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as 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.
Money so held in trust shall not be subject to the
provisions of Article Thirteen of this Indenture. If the Trustee
or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Section 401 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's
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obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant
to Section 401; provided that if the Company has made any payment
of principal of, premium, if any, or interest on any Securities
because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 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 or not it shall be occasioned or prohibited
by the provisions of Article Thirteen or be voluntary or
involuntary or be effected by the operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or
regulation of any administration or governmental body):
(a) default in the payment of any interest on any
Security when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(c) default in the deposit of any sinking fund payment,
when and as due by the terms of Article Twelve hereof or the
Securities; or
(d) default in the performance, or breach, of any
covenant or agreement of the Company hereunder (other than a
default in the performance, or breach, of a covenant or
agreement that is specifically dealt with elsewhere in this
Section), and continuance of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written
notice specifying such default or breach and stating that
such notice is a "Notice of Default" hereunder; or
(e)(i) an event of default shall have occurred under
any mortgage, bond, indenture, loan agreement or other
document evidencing any issue of Indebtedness of the
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Company or any Material Subsidiary for money borrowed, which
issue has an aggregate outstanding principal amount of not
less than $50,000,000, and such default shall result in such
Indebtedness becoming, whether by declaration or otherwise,
due and payable prior to the date on which it would otherwise
become due and payable or (ii) a default in any payment when
due at final maturity of any such Indebtedness; or
(f) final judgments or orders not covered by insurance
or a bond rendered against the Company or any Material
Subsidiary which require the payment in money, either
individually or in an aggregate amount, that is more than
$30,000,000 and such judgment or order shall remain
unsatisfied or unstayed for 60 days; or
(g) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the
Company or any Material Subsidiary in an involuntary case or
proceeding under the Federal Bankruptcy Code or any other
federal or state bankruptcy, insolvency, reorganization or
similar law or (ii) adjudging the Company or any Material
Subsidiary a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Material Subsidiary under
the Federal Bankruptcy Code or any other applicable federal
or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Material Subsidiary or of any
substantial part of any of their properties, or ordering the
winding up or liquidation of any of their affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(h) the institution by the Company or any Material
Subsidiary of a voluntary case or proceeding under the
Federal Bankruptcy Code or any other applicable federal or
state law or any other case or proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any
Material Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Material Subsidiary
in any involuntary case or proceeding under the Federal
Bankruptcy Code or any other applicable federal or state law
or to the institution of bankruptcy or insolvency proceedings
against the Company or any Material Subsidiary, or the filing
by the Company or any Material Subsidiary of a petition or
answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable federal or
state law, or the consent by it to the filing of any such
petition or to the
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appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of any of the Company or any Material Subsidiary or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due or taking of corporate action by
the Company or any Material Subsidiary in furtherance of any
such action; or
(i) default in the performance or breach of any of the
provisions of Article Eight.
Section 502. Acceleration of Maturity; Rescission.
If an Event of Default (other than an Event of Default
specified in Section 50l(g) or 501(h)) occurs and is continuing,
the Trustee or the Holders of at least 25% of the principal
amount of the Securities then Outstanding may, and the Trustee at
the request of such Holders shall, declare all unpaid principal
of, premium, if any, and accrued interest on all the Securities
to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders); provided
that so long as the Bank Credit Agreement shall be in force and
effect, if any such Event of Default shall have occurred and be
continuing, any such acceleration shall not be effective until
the earlier of (a) five Business Days following a notice of
acceleration given to the Company and the agent bank under the
Bank Credit Agreement and only if upon such fifth Business Day
such Event of Default shall be continuing or (b) the acceleration
of any Indebtedness under the Bank Credit Agreement. If an Event
of Default specified in Section 501(g) or 501(h) occurs and is
continuing, the amounts described above 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.
After a declaration of acceleration, but before a
judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of at least a majority in aggregate
principal amount of the Securities outstanding, by written notice
to the Company and the Trustee, may annul such declaration if (a)
the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, (ii) all overdue interest on all Securities, (iii) the
principal of and premium, if any, on any Securities which have
become due otherwise than by such
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declaration of acceleration and interest thereon at the rate
borne by the Securities, and (iv) to the extent that payment of
such interest is lawful, interest upon overdue interest at the
rate borne by the Securities; and (b) all Events of Default,
other than the non-payment of principal of the Securities which
have become due solely by the declaration of acceleration, have
been waived as provided in Section 513 or cured. No such
rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of
a declaration of acceleration in respect of the Securities,
because an Event of Default specified in Section 501(e) shall
have occurred and be continuing, such declaration of acceleration
shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the
holders thereof have rescinded their declaration of acceleration
in respect of such Indebtedness, and, if such Indebtedness is not
Senior Indebtedness, such rescission has been made without any
payment or other transfer or grant, or any promise or other
undertaking to pay or otherwise transfer or grant, any tangible
or intangible property or right to such holders in connection
with such rescission, and written notice of such discharge or
rescission, as the case may be, shall have been given to the
Trustee by the Company and by the holders of such Indebtedness or
a trustee, fiduciary or agent for such holders, within 60 days
after such declaration of acceleration in respect of the
Securities, and (x) no other Event of Default has occurred during
such 60-day period, and (y) no Default arising from such
discharge has occurred during such 60-day period, which, in
either case, has not been cured or waived during such period.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on
any Security 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 Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if
any) and interest, with interest upon the overdue principal (and
premium, if any) and, to the extent that payment
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of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities;
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities 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 Securities, 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 under this Indenture by such
appropriate private or judicial proceedings as the Trustee shall
deem most effectual to protect and enforce such rights.
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 Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) 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 Securities 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; provided that in the event
that proof of such claim and such other papers or documents
have not been so filed by the thirtieth day prior to the final
date on which
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such claim may be filed, the holders of Specified Senior
Indebtedness or their representatives shall be permitted to
file such proof of claim and other papers and documents for
and on behalf of the Holders of the Securities; and
(b) 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 proposal, plan of reorganization,
arrangement, adjustment or composition or other similar
arrangement affecting the Securities 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 Securities.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities 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 Securities in respect of which such judgment
has been recovered.
Section 506. Application of Money Collected.
Subject to Article Thirteen, any money, securities or
other property 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 Securities and the notation
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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 upon the Securities for principal (and premium, if
any) and interest, 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 Securities for principal (and
premium, if any) and interest; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal
amount of the Outstanding Securities 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;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the
Outstanding Securities;
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
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or to enforce any right under this Indenture except in the manner
provided in this Indenture 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 Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 307) interest on
such Security on the respective due dates expressed in such
Security (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 the Company, the Trustee
and the Holders shall, subject to any determination in such
proceeding, 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.
Section 510. Rights and Remedies Cumulative.
Except as provided in 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 Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
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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 Securities 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
(a) such direction shall not be in conflict with any
rule of law or with this Indenture or expose the Trustee to
personal liability, and
(b) subject to the provisions of Trust Indenture Act
Section 315, the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf of the Holders
of all the Securities waive any past Default or Event of Default
hereunder and its consequences, except a Default or Event of
Default
(a) in the payment of the principal of (or premium, if
any) or interest on any Security, or
(b) 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 Security affected.
Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs
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of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities, or to any
suit instituted by any Holder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any
Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
Section 516. Unconditional Right of Holders to
Institute Certain Suits.
Notwithstanding any other provision in this Indenture
and any other provision of any Security, the right of any Holder
of any Security to receive payment of the principal of, premium,
if any, and interest on such Security on or after the respective
due dates expressed in such Security, or to institute suit for
the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 60 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, notice of
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such Default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except
in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security or in the payment of
any sinking fund installment, 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 or breach
of the character specified in Section 501(d), no such notice to
Holders shall be given until at least 30 days after the
occurrence thereof.
Section 602. Certain Rights of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Trustee need perform only those duties as
are specifically set forth in this Indenture and no
covenants or obligations shall be implied in this
Indenture that are adverse to the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; provided that the Trustee shall examine the
certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this subsection (c) does not limit the effect
of subsection (b) of this Section 602;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
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unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 512; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights
or powers if it shall have reasonable grounds for believing,
and does believe, that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to this Section 602.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense,
including such reasonable advances as may be requested by the
Trustee.
(f) Subject to the foregoing subsections (a) through
(e) of this Section 602:
(i) The Trustee may rely and shall be protected in
acting or in refraining from acting upon any document
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a
Company Order and any resolution by the board of
directors of the Company may be sufficiently evidenced by
a Board Resolution.
(ii) Before the Trustee acts or refrains from
acting, it may require an Officers' Certificate or an
Opinion of Counsel. The Trustee shall not be liable for
any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of
Counsel. In addition, in determining the Company's
compliance with the financial covenants set forth herein,
the Trustee may rely on the certificate delivered to the
Trustee pursuant to Section 1018(a).
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(iii) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(iv) The Trustee shall not be liable for any action
it takes or omits to take in good faith that it believes
to be authorized or within its rights or powers.
(v) The Trustee may consult with counsel,
accountants or other experts and any advice of such
counsel, accountants or other experts shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such
advice.
Section 603. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-l supplied
to the Company are true and accurate, subject to the
qualifications set forth therein.
Section 604. Trustee and Agents May Hold Securities;
Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not the Trustee, Paying
Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310(b) and 31l, may otherwise deal
with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
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Section 605. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust hereunder for the
purposes for which they were received and need not be segregated
from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 606. Compensation and Reimbursement.
The Company covenants and agrees:
(a) 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);
(b) 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
(c) to indemnify the Trustee and each of its officers,
directors, employees, agents and counsel for, and to hold
them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder,
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 obligation of the Company under this Section 606 to
compensate the Trustee and to pay and reimburse the Trustee for
such expenses, disbursements and advances shall constitute
additional Indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and shall not be
subject to the provisions of Article Thirteen. If, and to the
extent that, the Trustee, its counsel, and other agents do not
receive compensation for services rendered, reimbursement of
their advances, expenses and disbursements, or indemnity, as
herein provided, as the result of allowances made in any
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reorganization, bankruptcy, receivership, liquidation or other
proceeding or by any plan or reorganization or readjustment of
obligations of the Company, the Trustee shall be entitled, in
priority to the Holders of the Securities, to receive any
distributions of any securities, dividends or other disbursements
which would otherwise be made to the Holders of the Securities in
any such proceeding or proceedings and the Trustee is hereby
constituted and appointed, irrevocably, the attorney-in-fact for
the Holders of the Securities and each of them to collect and
receive, in their name, place and stead, such distributions,
dividends or other disbursements, to deduct therefrom the amounts
due to the Trustee, its counsel and other agents on account of
services rendered, advances, expenses, and disbursements made or
incurred, or indemnity, and to pay and distribute the balance,
pro rata, to the Holders of the Securities. The Trustee shall
have a lien upon any securities or other consideration to which
the Holders of the Securities may become entitled pursuant to any
such plan or reorganization or readjustment of obligations, or in
any such proceeding or proceedings; and the court or judge in any
such proceeding or proceedings may determine the terms and
conditions under which any such lien shall exist and be enforced.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a claim
prior to the Securities upon all money, securities or other
property held or collected by the Trustee as such, except funds
held in trust for the benefit of Holders of particular
Securities, and the Securities are hereby subordinated to such
claim.
If the Trustee incurs expenses or renders services after
an Event of Default specified in Section 501(g) or 501(h) occurs,
the expenses and the compensation for the services are intended
to constitute expenses of administration under the Federal
Bankruptcy Code and any other applicable federal or state
bankruptcy Law.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of
Section 3l0(b) of the Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under Trust Indenture Act
Section 310(a)(1) and which shall have a combined capital and
surplus of at least $100,000,000 and have its Corporate Trust
Office located in The City of New York (or, if its Corporate
Trust Office shall not be located in The City of New York, the
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Company shall, pursuant to Section 1002, maintain an office or
agency in The City of New York where the Securities may be
presented or surrendered and notices and demands hereunder may be
made or served) to the extent there is such an institution
eligible and willing to serve. 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 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 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 610, at which time the retiring
Trustee shall be fully discharged from its obligations hereunder.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor Trustee by written instrument executed by authority of
the Board of Directors of the Company, a copy of which shall be
delivered to the resigning Trustee and a copy to the successor
Trustee. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may, or any Holder who has been a bona fide Holder of a Security
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. Such court may
thereupon, after such notice, if any, as it may deem proper,
appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after
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written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written
request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security 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 case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, the Holder of
any Security who has been a bona fide Holder of a Security 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
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with Section 610,
become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of the Securities
and so accepted appointment, the Holder of any Security who has
been a bona fide Holder 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 by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities
as their names and addresses appear in the Security Register.
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Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee;
provided, however, that the retiring Trustee shall continue to be
entitled to the benefit of Section 606(c); 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.
Upon acceptance of appointment by any successor Trustee
as provided in this Section 610, the Company shall give notice
thereof to the Holders of the Securities, by mailing such notice
to such Holders at their addresses as they shall appear on the
Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 609. If the Company fails to
give such notice within 10 days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 611. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
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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 Securities 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 Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
Section 612. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of
the Company (or any other obligor under the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of
Holders.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee or any agent of either of them shall be
held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with
Trust Indenture Act 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 Trust Indenture Act Section 312.
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 Securities, the
Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, as provided in Trust
Indenture Act Section 313(c), a brief report dated as of such May
l5 if required by Trust Indenture Act Section 313(a).
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Section 703. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the
Company 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 may be
required to file with the Commission pursuant to Section l3
or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Company is not required to file information, documents
or reports pursuant to either of such Sections, then it 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 Securities Exchange Act of 1934
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;
(b) 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
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, in the manner and
to the extent provided in Trust Indenture Act Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections
(a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate or merge with or into
any other Person, or sell, assign, transfer, lease, convey
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or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an
entirety in one transaction or series of related transactions) to
any Person 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 transfer of all
or substantially all of the assets of the Company and its
Subsidiaries on a consolidated basis to any Person unless, at the
time and after giving effect thereto:
(i) either (a) the Company shall be the 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,
transfer, lease, conveyance or disposition the properties and
assets of the Company, substantially as an entirety (the
"Surviving Entity") shall be a corporation duly organized and
validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and
the Surviving Entity shall, in either case, expressly assume
by supplemental indenture hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this
Indenture and this Indenture shall remain in full force and
effect;
(ii) immediately after giving effect to such transaction
on a pro forma basis, no Default or Event of Default shall
have occurred and be continuing;
(iii) immediately after giving effect to such transaction
on a pro forma basis, the Consolidated Fixed Charge Coverage
Ratio of the Company (or the Surviving Entity if the Company
is not the continuing obligor under this Indenture), for the
Company's four most recently completed full fiscal quarters
is at least 1.75 to 1.0; and
(iv) the Company has delivered or caused to be delivered
to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, lease
or transfer and such supplemental indenture, if one is
required by this Section 801, comply with this Section 801
and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale,
assignment, transfer, lease or conveyance or other disposition of
all or substantially all of the assets of the Company in
accordance with Section 801, the successor Person formed by
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such consolidation or into which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had
been named as the Company herein. In the event of any
transaction (other than a lease) described in and complying with
the conditions listed in Section 8.01 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 and the Company
would be discharged from all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, 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:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;
(b) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power
herein or in the Securities conferred upon the Company;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions
with respect to matters or questions arising under this
Indenture; provided that, in each case, such provisions
shall not adversely affect the interests of the
Holders;
(d) to secure the Securities pursuant to the
requirements of Section 801 or Section 1010 or otherwise;
(e) to provide for the guarantee of payment of the
Securities by any Subsidiary pursuant to the requirements of
Section 1014 or Section 1015;
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(f) to comply with the requirements of the Commission
in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act, as contemplated by
Section 905 or otherwise;
(g) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder; or
(h) to make any other change that does not adversely
affect the rights of any Holder.
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 Securities, by
Act of such Holders delivered to the Company and the Trustee,
each when authorized by a Board Resolution, and the Trustee may
enter into one or more 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 waiving
or modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental
indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, any Security or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change
the coin or currency in which the principal of any Security
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 modify the
obligation of the Company to make and consummate a Change in
Control Offer or modify any of the provisions or definitions
with respect thereto; or
(b) reduce the percentage in principal amount of the
Outstanding Securities, 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
(c) modify any of the provisions of this Section or
Section 513 or Section 1019, except to increase any such
percentage or to provide that certain other provisions of
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this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby; or
(d) modify any of the provisions of Article Thirteen
hereof in a manner adverse to the Holders of the Securities;
or
(e) except as otherwise permitted under Article Eight,
consent to the assignment or transfer by the Company of any
of its rights and obligations under this Indenture.
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.
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 (subject to Trust
Indenture Act Section 315(a) through 315(d) and Section 602
hereof) shall be fully protected in relying upon, an Officers'
Certificate and 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.
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 Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to this
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Article may, and shall if required by the Company, bear a
notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in
the opinion of the Company, to any such supplemental indenture
may be prepared and executed by the Company and shall be
authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
Section 907. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the
rights of any holders of Senior Indebtedness under Article
Thirteen unless the requisite holders of each issue of Senior
Indebtedness affected thereby shall have consented to such
supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities in
accordance with the terms of the Securities 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 Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may
be served. If the Corporate Trust Office is located in New York
City, then it 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, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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The Company may from time to time designate one or more
other offices or agencies (in or outside of The City of New York)
where the Securities may be presented or surrendered for any or
all such purposes, and may from time to time rescind such
designation; provided, however, that no such designation or
recission 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 recission and
any change in the location of any such office or agency.
Section 1003. Money for Security 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) or interest on any of the Securities,
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 Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum in same day funds
(or New York Clearing House funds if such deposit is made prior
to the date on which such deposit is required to be made)
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:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
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;
(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
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making of any payment of principal (and premium, if any) or
interest;
(c) 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; and
(d) acknowledge, accept and agree to comply in all
respects with the provisions of this Indenture relating to
the duties, rights and obligations of such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any
Security 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 Security 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 the New York Times and The Wall Street Journal
(national edition), 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 notification or 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 shall do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence and that of each
Material Subsidiary of the Company and the corporate rights
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(charter and statutory), corporate licenses and corporate
franchises of the Company and its Material Subsidiaries, except
where a failure to do so, singly or in the aggregate, is not
likely to have a materially adverse effect upon the business,
assets, financial conditions or results of operations of the
Company and the Material Subsidiaries taken as a whole determined
on a consolidated basis in accordance with generally accepted
accounting principles; provided that the Company shall not be
required to preserve any such existence (except of the Company),
right, licenses or franchise if the Board of Directors of the
Company, or of the Material Subsidiary concerned, shall determine
that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Material
Subsidiary and that the loss thereof is not disadvantageous in
any material respect to the Holders.
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
material taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any of its Subsidiaries and (b) all
material lawful claims for labor, materials and supplies, which,
if unpaid, might by law become a lien upon the property of the
Company or any of its Subsidiaries that could produce a material
adverse effect on the consolidated financial condition of the
Company; 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 and in respect of which appropriate
reserves (in the good faith judgment of management of the
Company) are being maintained in accordance with GAAP.
Section 1006. Maintenance of Properties.
The Company shall cause all material properties owned by
or leased to it or any Material Subsidiary of the Company and
necessary in the conduct of its business or the business of such
Material Subsidiary to be maintained and kept in normal
condition, repair and working order, ordinary wear and tear
excepted; provided that nothing in this Section shall prevent the
Company or any Material Subsidiary of the Company from
discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance
or disposal is, in the judgment of the Board of Directors of the
Company or the Material Subsidiary concerned, or of any officer
(or other agent employed by the Company or any Material
Subsidiary of the Company) of the Company or such Material
Subsidiary having managerial responsibility for any such
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property, desirable in the conduct of the business of the Company
or any Material Subsidiary of the Company and if such
discontinuance or disposal is not adverse in any material respect
to the Securityholders.
The Company shall provide or cause to be provided, for
itself and any Material Subsidiaries of the Company, insurance
(including appropriate self-insurance) against loss or damage of
the kinds customarily insured against by corporations similarly
situated and owning like properties in the same general areas in
which the Company or such Material Subsidiaries operate.
Section 1007. Limitation on Indebtedness.
The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume, or directly or indirectly
guarantee or in any other manner become directly or indirectly
liable for the payment of, any Indebtedness (including any
Acquired Indebtedness, but excluding Permitted Indebtedness)
unless, at the time of such event and after giving effect thereto
on a pro forma basis, the Company's Consolidated Fixed Charge
Coverage Ratio 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 on the assumption that, in
connection with the incurrence of any such Indebtedness, any
related acquisition (whether by means of purchase, merger or
otherwise) and any related repayment of Indebtedness also had
occurred on such date with the appropriate adjustments with
respect to such acquisition and repayment being included in such
pro forma calculation, would have been at least equal to 1.75 to
1.0.
Section 1008. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's
Capital Stock (other than dividends or distributions
payable in shares of its Qualified Capital Stock or in
options, warrants or other rights to purchase such
Qualified Capital Stock),
(ii) purchase, redeem or otherwise acquire or retire
for value any Capital Stock of the Company or any
Affiliate thereof (other than Capital Stock of (x) any
Subsidiary held by the Company or any of its
Majority-owned Subsidiaries and (y) any Majority-owned
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Subsidiary of the Company) or any options, warrants or
other rights to acquire such Capital Stock,
(iii) make any principal payment on or redeem,
repurchase, defease or otherwise acquire or retire for
value, prior to any scheduled principal payment,
scheduled sinking fund payment or maturity, any
Indebtedness of the Company which is pari passu with or
expressly subordinate in right of payment to the
Securities,
(iv) declare or pay any dividend or distribution on
any Capital Stock of any Subsidiary to any Person (other
than the Company or any of its Majority-owned
Subsidiaries) or purchase, redeem or otherwise acquire
or retire for value any Capital Stock of any Subsidiary
held by any Person (other than the Company or any of its
Majority-owned Subsidiaries), or
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate of the Company (other than
a Majority-owned Subsidiary of the Company) or make any
Investment (other than any Permitted Investment) in any
Person, including any Unrestricted Subsidiary
(such payments or other actions described in the foregoing
clauses (i) through (v), other than any such action that is a
Permitted Payment, are collectively referred to as "Restricted
Payments"), unless at the time of and 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), (1) no Default or Event of
Default shall have occurred and be continuing and (2) the
aggregate amount of all Restricted Payments (plus Permitted
Payments set forth in Sections 1008(b)(vi), (xi) and (xiii)) declared or
made after the date hereof (including Investments in Unrestricted
Subsidiaries pursuant to the provisions of Section 1017) shall
not exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated
Adjusted Net Income of the Company accrued on a
cumulative basis during the period beginning on
October 31, 1993 and ending on the last day of the Company's
last fiscal quarter ending prior to the date of such
proposed Restricted Payment (or, if such aggregate
cumulative Consolidated Adjusted Net Income shall be a
loss, minus 100% of such loss), plus
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(B) the aggregate net proceeds, including the
Fair Market Value of property other than cash (as
determined by the Company's Board of Directors, whose
determination shall be conclusive), received after
the date hereof by the Company as capital
contributions to the Company, plus
(C) the aggregate net proceeds, including the
Fair Market Value of property other than cash (as
determined by the Company's Board of Directors, whose
determination shall be conclusive), received after
the date hereof by the Company from the issuance or
sale (other than to any of its Subsidiaries) of
shares of Qualified Capital Stock of the Company or
warrants, options or rights to purchase shares (other
than issuances permitted by clause (v) of the
definition of Permitted Payments contained in
Section l008(b)) of Qualified Capital Stock of the
Company, plus
(D) the aggregate net proceeds, including the
Fair Market Value of property other than cash (as
determined by the Company's Board of Directors, whose
determination shall be conclusive), received by the
Company (other than from any of its Subsidiaries)
upon the exercise of options, warrants or rights to
purchase shares of Qualified Capital Stock of the
Company, plus
(E) the aggregate net proceeds, including the
Fair Market Value of property other than cash (as
determined by the Company's Board of Directors, whose
determination shall be conclusive), received after
the date hereof by the Company from the issue or sale
of debt securities that have been converted into or
exchanged for Qualified Capital Stock of the Company,
together with the aggregate cash received by the Company
at the time of such conversion or exchange.
(b) Section 1008(a) to the contrary notwithstanding,
the Company and its Subsidiaries may take the following actions
(clauses (i) through (xiii) being referred to as "Permitted
Payments") so long as, in the case of clauses (vi), (ix),
(xi) and (xiii), no Default or Event of Default has occurred
and is continuing:
(i) 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 Section 1008(a) (in which event such
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dividend shall be deemed to have been paid on such date
of declaration thereof for purposes of Section 1008(a));
(ii) the repurchase, redemption or other
acquisition or retirement of any shares of any class of
Capital Stock of the Company or any Affiliate of the
Company, in exchange for (including any such exchange
pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu
of the issuance of fractional shares or scrip) or out of
the net cash proceeds of a substantially concurrent
issue and sale (other than to a Subsidiary) of shares of
Qualified Capital Stock of the Company;
(iii) payments by the Company to SMG-II pursuant to
the Tax Sharing Agreement;
(iv) dividends or distributions in an aggregate
amount not to exceed the amount of dividends or
distributions paid to the Company or its Subsidiaries by
Unrestricted Subsidiaries since the date of this
Indenture;
(v) the redemption, defeasance, repurchase or
acquisition or retirement for value (each, for purposes
of this clause, a "refinancing") of any Indebtedness of
the Company (other than Redeemable Capital Stock) which
is pari passu with or expressly subordinate in right of
payment to the Securities through the issuance of (A)
new Indebtedness of the Company or (B) shares of
Qualified Capital Stock of the Company or Newco,
provided that, with respect to clause (A), any such new
Indebtedness (1) has a principal amount that does not
exceed the principal amount so refinanced plus the
amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the
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; provided that for purposes of this clause,
the principal amount of any Indebtedness shall be deemed
to mean the principal amount thereof or, if such
Indebtedness 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, (2) has an Average Life
to Stated Maturity that is equal to or
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greater than the remaining Average Life to Stated
Maturity of the Securities, (3) has a final Stated
Maturity that exceeds the final Stated Maturity of
principal of the Securities, and (4) is pari passu with
or expressly subordinated in right of payment to the
Securities at least to the same extent as the
Indebtedness refinanced;
(vi) dividends, loans or advances by the Company to
Holdings to enable Holdings or Newco to pay cash
dividends on the Holdings Preferred Stock; provided that
on the date of payment of such dividend, the Company,
after giving pro forma effect to such dividend, loan or
advance, would be able to incur $1.00 of additional
Indebtedness under the provisions of Section 1007 (other
than Permitted Indebtedness), assuming a market rate of
interest on such Indebtedness;
(vii) the redemption, repurchase, defeasance or
acquisition or retirement for value of any Pari Passu
Indebtedness (other than the Subordinated Debentures);
provided that the Company shall redeem, pursuant to the
optional redemption provisions in Article Eleven and the
Securities, the principal amount of Securities bearing
the same proportion to the aggregate amount of such Pari
Passu Indebtedness being redeemed, repurchased, defeased
or acquired or retired for value that the aggregate
outstanding principal amount of the Securities bears to
the aggregate outstanding principal amount of such Pari
Passu Indebtedness (without giving effect to such
redemption, repurchase, defeasance, acquisition or
retirement);
(viii) the declaration or payment of any dividend or
distribution on any Capital Stock of any Subsidiary, or
the purchase, redemption, acquisition or retirement for
value of any Capital Stock of any Subsidiary; provided
that such declaration, payment, purchase, redemption,
acquisition or retirement is made pro rata among all
holders of such Capital Stock of such Subsidiary;
(ix) payments or other actions described in clauses
(i) through (v) of Section 1008(a) that would otherwise
be Restricted Payments in an aggregate amount not to
exceed $35,000,000;
(x) the dividend or distribution of the Capital
stock of Plainbridge to Newco;
(xi) the repurchase of any Indebtedness of the
Company which is pari passu with or expressly
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subordinate in right of payment to the Securities at a
purchase price not greater than 101% of the principal
amount of such Indebtedness in the event of a Change in
Control (as defined in this Indenture) pursuant to a
provision similar to Section 1012; provided that prior
to such repurchase the Company has made the Change in
Control Offer as provided in Section 1012 and has
repurchased all Securities validly tendered for payment
in connection with such Change in Control Offer;
(xii) the redemption, repurchase, defeasance or
acquisition or retirement for value of the Subordinated
Debentures, provided that, in the case of a redemption,
repurchase, defeasance or acquisition or retirement for
value with the proceeds of other Indebtedness, the
applicable provisions of clause (v) above are complied
with; and
(xiii) the redemption, repurchase, defeasance or
acquisition or retirement for value of the Holdings
Intercompany Notes remaining outstanding following the
Recapitalization (other than a scheduled principal
payment, scheduled sinking fund payment or at maturity).
Except as provided in this Section 1008(b) and
Section 1008(a)(2), nothing in this Section 1008 limits or
restricts the making of any Permitted Payment and a Permitted
Payment will not be treated as a Restricted Payment.
(c) In computing Consolidated Adjusted Net Income of
the Company under clause (A) of Section 1008(a), (l) the Company
shall use audited financial statements for the portions of the
relevant period for which audited financial statements are
available on the date of determination and unaudited financial
statements and other current financial data based on the books
and records of the Company for the remaining portion of such
period and (2) the Company shall be permitted to rely in good
faith on the financial statements and other financial data
derived from the books and records of the Company that are
available on the date of determination. If the Company makes a
Restricted Payment which, at the time of the making of such
Restricted Payment would in the good faith determination of the
Company be permitted under the applicable provisions of this
Section 1008, such Restricted Payment shall be deemed to have
been made in compliance with such provisions notwithstanding any
subsequent adjustments made in good faith to the Company's
financial statements affecting Consolidated Adjusted Net Income
of the Company for any period.
Section 1009. Limitation on Transactions with
Affiliates.
(a) The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly, enter into any
transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of
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assets, property or services) with any Affiliate of the Company
(other than a wholly owned Subsidiary thereof) unless (i) such
transaction or series of transactions is or are on terms that are
no less favorable to the Company or such Subsidiary, as the case
may be, than those that could have been obtained at the time of
such transaction or transactions in a comparable transaction in
arm's-length dealings with an unaffiliated third party and (ii)
(A) with respect to any transaction or series of transactions
involving aggregate payments in excess of $1,000,000, but less
than $10,000,000, the Company delivers an Officers' Certificate
to the Trustee certifying that such transaction or transactions
complies with clause (i) above and (B) with respect to a
transaction or series of transactions, involving aggregate
payments equal to or greater than $10,000,000, (1) such
transaction or transactions shall have received the approval of a
majority of the disinterested directors of the Board of Directors
of the Company if Plainbridge is a party to such transaction or
series of transactions or (2) if Plainbridge is not a party to
such transaction or series of transactions, such transactions or
series of transactions shall have received either the approval of
a majority of the disinterested directors of the Board of
Directors of the Company or the Company shall deliver to the
Trustee a written opinion of a nationally recognized investment
banking firm stating that such transaction is fair to the Company
from a financial point of view; provided, however, that the
foregoing restriction shall not apply to (1) the payment of fees
to Merrill Lynch Capital Partners, Inc. or Merrill Lynch, Pierce,
Fenner & Smith Incorporated or any of their Affiliates for
consulting, investment banking or financial advisory services
rendered by such Person to the Company or any Subsidiary of the
Company, (2) the payment of reasonable and customary regular fees
to directors of the Company, Newco, SMG-II, Holdings or any of
their respective subsidiaries or parents who are not employees of
any of such Persons, (3) the Logistical Services Agreement and
transactions pursuant thereto and (4) the Spin-Off Agreements and
transactions pursuant thereto. For purposes of this
Section 1009(a), any transaction or series of related
transactions between the Company or any Subsidiary and any
Affiliate of the Company that is approved as being on the terms
required by clause (i) above by a majority of the disinterested
directors of the Board of Directors of the Company shall be
deemed to be on terms as favorable as those that might be
obtained at the time of such transaction or series of
transactions in a comparable transaction in arm's-length dealings
with an unaffiliated third party, and thus shall be permitted
under this Section 1009(a).
(b) The Company will not, and will not permit any of
its Subsidiaries to, amend, modify, or in any way alter the terms
of the Intercompany Agreement, the Logistical Services Agreement
or the Spin-Off Agreements in a manner materially
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adverse to the Company, other than (i) by adding new Subsidiaries
and (ii) in the case of the Logistical Services Agreement and the
Spin-Off Agreements, any amendments or modifications that are
approved by a majority of the disinterested directors of the
Board of Directors of the Company.
Section 1010. Limitation on Liens.
The Company will not, and will not permit any Subsidiary
to, create, incur, affirm or suffer to exist any Lien of any kind
securing any Pari Passu Indebtedness or Subordinated Indebtedness
(including any assumption, guarantee or other liability with
respect thereto by any Subsidiary) upon any property or assets
(including any intercompany notes) of the Company or any
Subsidiary owned on the date hereof or acquired after the date
hereof, or any income or profits therefrom, unless the Securities
are directly secured equally and ratably with (or prior to in the
case of Subordinated Indebtedness) the obligation or liability
secured by such Lien, and except for any Lien securing Acquired
Indebtedness created prior to the incurrence of such Indebtedness
by the Company or any Subsidiary, provided that any such Lien
only extends to the assets that were subject to such Lien securing
such Acquired Indebtedness prior to the related acquisition by the
Company or its Subsidiaries.
Section 1011. Limitation on Other Senior Subordinated
Indebtedness.
The Company will not create, incur, assume, guarantee or
in any other manner become liable with respect to any
Indebtedness (other than Permitted Senior Subordinated
Indebtedness) that is subordinate in right of payment to any
Senior Indebtedness unless such Indebtedness is also pari passu
with, or subordinate in right of payment to, the Securities,
pursuant to subordination provisions substantially similar to
those contained in Article Thirteen.
Section l0l2. Purchase of Securities Upon Change in
Control.
(a) If there shall have occurred a Change in Control,
Securities shall be purchased by the Company, at the option of
the Holder thereof, in whole or in part in integral multiples of
$1,000, on a date which shall be a Business Day that is not
earlier than 45 days nor later than 60 days from the date the
Change in Control Notice referred to below is given to Holders or
such later date as may be necessary for the Company to comply
with requirements under the Exchange Act (such date, or such
later date, being the "Change in Control Purchase Date"), at a
purchase price in cash (the "Change in Control Purchase
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Price") in an amount equal to 101% of the principal amount of
such Securities, plus accrued and unpaid interest (including any
Defaulted Interest), if any, to the Change in Control Purchase
Date, subject to satisfaction by or on behalf of the Holder of
the requirements set forth in Section 1012(c).
(b) Within 30 days following a Change in Control and
prior to the mailing of the Change in Control Notice to Holders
provided for in paragraph (c) below, the Company covenants to
either (1) repay in full all Indebtedness under the Bank Credit
Agreement and permanently reduce the commitments of the lenders
thereunder or offer to repay in full all such Indebtedness and
permanently reduce such commitments and repay the Indebtedness
and permanently reduce the commitment of each lender who has
accepted such offer or (2) obtain the requisite consent under the
Bank Credit Agreement to permit the repurchase of the Securities
as provided for in this Section 1012. The Company shall first
comply with this subsection (b) before it shall be required to
repurchase the Securities pursuant to this Section 1012, and any
failure to comply with this subsection (b) shall constitute a
default of a covenant for purposes of Section 501(d).
(c) Within 30 days after the occurrence of a Change in
Control, the Company shall give written notice of such Change in
Control (a "Change in Control Notice") and of its offer (the
"Change in Control Offer") to purchase Securities as specified
herein to the Trustee, and to each Holder of the Securities at
his address appearing on the Security Register, by first-class
mail, postage prepaid. The Trustee shall be under no obligation
to ascertain the occurrence of a Change in Control. The Change
in Control Notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities, shall
include a form of Change in Control Purchase Notice to be
completed by the Holder and shall state:
(i) (A) the events causing the Change in Control
and the date such Change in Control is deemed to have
occurred for purposes of this Section 1012, and (B) a
description of any material developments in the
Company's business since the latest annual or quarterly
report filed with the Trustee pursuant to
Section 1018(c) or 1018(d) and, if material, any
appropriate pro forma financial information;
(ii) the date by which a Holder must give a Change
in Control Purchase Notice;
(iii) the Change in Control Purchase Price;
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(iv) the Change in Control Purchase Date;
(v) that any Security not purchased will continue
to accrue interest;
(vi) that Securities to be purchased shall, on the
Change in Control Purchase Date, become due and payable
at the Change in Control Purchase Price and from and
after such date (unless the Company shall default in the
payment of the Change in Control Purchase Price) such
Securities shall cease to bear interest; and
(vii) the procedures a holder must follow to
exercise rights under this Section 1012 and a brief
description of those rights and the procedures for
withdrawing a Change in Control Purchase Notice.
(d) A Holder may exercise its rights specified in
Section 1012(a) upon (i) delivery to any Paying Agent a written
notice (a "Change in Control Purchase Notice") at any time on or
prior to one Business Day before the Change in Control Purchase
Date, stating (A) the certificate number of the Security that the
Holder will deliver to be purchased and (B) the portion of the
principal amount of the Security that the holder will deliver to
be purchased, which portion must be $1,000 or an integral
multiple thereof and (ii) delivery of such Security to such
Paying Agent at such office prior to, on or after the Change in
Control Purchase Date (together with all necessary endorsements),
such delivery being a condition to receipt by the Holder of the
Change in Control Purchase Price therefor. If a Holder has
elected to deliver to the Company for purchase a portion of a
Security, and if the principal amount of such portion is $1,000
or an integral multiple of $1,000, the Company shall purchase
such portion from the Holder thereof pursuant to this Section
1012. Provisions of this Indenture that apply to the purchase of
all of a Security also apply to the purchase of a portion of such
Security. Each Paying Agent shall promptly notify the Company of
the receipt by the former of any and all Change in Control
Purchase Notices and any and all written notices of withdrawal
thereof.
(e) Upon receipt by any Paying Agent of a Change in
Control Purchase Notice, the Holder of the Security in respect of
which such Change in Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice is withdrawn
pursuant to Section 1012(j)) thereafter be entitled to receive
solely the Change in Control Purchase Price with respect to such
Security. Such Change in Control Purchase Price shall be paid to
such Holder promptly following the later of the Business Day
following the Change in Control Purchase Date
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(provided the conditions in Section 1012(d) have been satisfied)
and the time of delivery of such Security to the relevant Paying
Agent at the office of such Paying Agent by the Holder thereof in
the manner required by Section 1012(d).
(f) On or prior to the Change in Control Purchase Date,
the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money
in same day funds (or New York Clearing House funds if such
deposit is made prior to the Change in Control Purchase Date)
sufficient to pay the Change in Control Purchase Price of, and
(except if the Change in Control Purchase Date shall be an
Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be purchased on that date.
(g) Upon a Change in Control Purchase Notice having
been given as aforesaid, Securities to be purchased shall, on the
Change in Control Purchase Date, become due and payable at the
Change in Control Purchase Price and from and after such date
(unless the Company shall default in the payment of the Change in
Control Purchase Price) such Securities shall cease to bear
interest. Upon surrender of any such Security for purchase in
accordance with the foregoing provisions, such Security shall be
paid by the Company at the Change in Control Purchase Price;
provided, however, that installments of interest whose Stated
Maturity is on or prior to the Change in Control Purchase Date
shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant
Regular Record Dates according to the terms and the provisions of
Section 307. If any Security tendered for purchase shall not be
so paid upon surrender thereof, the principal thereof (and
premium, if any, thereon) shall, until paid, bear interest from
the Change in Control Purchase Date at the rate borne by such
Security.
(h) Any Security that is to be purchased only in part
shall be surrendered to a Paying Agent at the office of such
Paying Agent (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 Security, without
service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate
principal amount equal to, and in exchange for, the portion of
the principal amount of the Security so surrendered that is not
purchased.
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(i) The Company shall comply with the applicable tender
offer rules, including Rule l4e-l under the Exchange Act, in
connection with a Change in Control Offer.
(j) A Change in Control Purchase Notice may be
withdrawn before or after delivery by the Holder to the relevant
Paying Agent at the office of such Paying Agent of the Security
to which such Change in Control Purchase Notice relates, by means
of a written notice of withdrawal (by facsimile transmission or
letter) received by such Paying Agent at such office not later
than one Business Day prior to the Change in Control Purchase
Date, specifying, as applicable:
(i) the certificate number of the Security in
respect of which such notice of withdrawal is being
submitted;
(ii) the principal amount of the Security with
respect to which such notice of withdrawal is being
submitted; and
(iii) the principal amount, if any, of the Security
that remains subject to the original Change in Control
Purchase Notice and that has been or will be delivered
for purchase by the Company.
A written notice of withdrawal may be in the form set
forth in the preceding paragraph. Each Paying Agent will
promptly return to the prospective Holders thereof any Securities
with respect to which a Change in Control Purchase Notice has
been withdrawn in compliance with this Indenture.
Section 1013. Restrictions on Preferred Stock of
Subsidiaries.
The Company will not permit any of its Subsidiaries to
issue any Preferred Stock (other than to the Company or a
Majority-owned Subsidiary of the Company), or permit any Person
(other than the Company or a Majority-owned Subsidiary of the
Company) to own or hold an interest in any Preferred Stock of any
such Subsidiary, previously held by the Company or a
Majority-owned Subsidiary of the Company unless such Subsidiary
would be entitled to incur Indebtedness in accordance with the
provisions of Section 1007 in the aggregate principal amount
equal to the aggregate liquidation value of such Preferred Stock
assuming a market rate of interest (as determined by the Company)
for such Preferred Stock as of the date of issuance or transfer.
Section 1014. Limitations on Issuances of Guarantees of
Indebtedness.
The Company will not permit any Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become
liable with respect to any Pari Passu Indebtedness or
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Subordinated Indebtedness, unless such Subsidiary simultaneously
executes and delivers a supplemental indenture hereto providing
for a guarantee of the Securities; provided that, in the case of a
Subsidiary's guarantee, assumption or other liability with
respect to Subordinated Indebtedness, such guarantee, assumption
or other liability shall be subordinated to such Subsidiary's
guarantee of the Securities to the same extent as such
Subordinated Indebtedness is subordinated to the Securities; and
provided further that this Section 1014 shall not be applicable
to any guarantee, assumption or other liability of any Subsidiary
of the Company that (i) existed at the time such Person became a
Subsidiary of the Company and (ii) was not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary
of the Company. Any such guarantee of the Securities by a
Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon
either (A) the release or discharge of such guarantee of such
Pari Passu Indebtedness or Subordinated Indebtedness, as the case
may be, except a discharge by or as a result of payment under
such guarantee or (B) any sale, exchange or transfer, to any
Person not an Affiliate of the Company, of all the Company's
stock in, or all or substantially all the assets of, such
Subsidiary, which sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture.
Section 1015. Restriction on Transfer of Assets.
The Company will not sell, convey, transfer or otherwise
dispose of its assets or property to any of its Subsidiaries,
except for (i) sales, conveyances, transfers or other
dispositions of assets or property acquired by the Company after
the date hereof; (ii) sales, conveyances, transfers or other
dispositions of Existing Assets (a) made in the ordinary course
of business; (b) made outside the ordinary course of business
with a net book value that, when aggregated with all other such
transfers by the Company since the date of this Indenture, less
the net book value of Existing Assets transferred to the Company
from its Subsidiaries, would not exceed 25% of the Consolidated
Assets of the Company; or (c) to any Subsidiary if such
Subsidiary simultaneously with such transfer executes and
delivers a supplemental indenture hereto providing for the
guarantee of payment of the Securities by such Subsidiary, which
guarantee shall be subordinated to any guarantee of such
Subsidiary of Senior Indebtedness of the Company and shall be
subordinated to any other Indebtedness of such Subsidiary (which
is not subordinated to any other Indebtedness of such Subsidiary
or which is designated by such Subsidiary as being senior in
right of payment to such guarantee), in each case to the same
extent as the Securities are subordinated to the Senior
Indebtedness of the Company
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under this Indenture and (iii) sales, conveyances, transfers or
other dispositions of Existing Assets made pursuant to the
Spin-Off. Notwithstanding the foregoing, any such guarantee of a
Subsidiary of the Securities shall provide by its terms that it
shall be automatically and unconditionally released and
discharged (i) on the date that the net book value of the
Existing Assets held by the Company is greater than 75% of
Consolidated Assets or (ii) upon any sale, exchange or transfer
to any Person not an Affiliate of the Company of all of the
Company's stock in, or all or substantially all the assets of,
such Subsidiary, which sale, exchange or transfer is made in
compliance with the terms of this Indenture.
Section 1016. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any Subsidiary
to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind,
on the ability of any Subsidiary to (a) pay dividends or make any
other distribution on its Capital Stock, (b) pay any Indebtedness
owed to the Company or any Subsidiary, (c) make loans or advances
to the Company or any Subsidiary, or (d) transfer any of its
property or assets to the Company or any Subsidiary, except (i)
any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the date hereof; (ii) any encumbrance or
restriction, with respect to a Subsidiary that is not a
Subsidiary of the Company on the date hereof, in existence at the
time such Person becomes a Subsidiary of the Company or created
on the date it becomes a Subsidiary; (iii) any encumbrance or
restriction on the ability of any Subsidiary whose assets consist
substantially only of fee or leasehold interests in real property
and improvements thereon to transfer any such interests which are
acquired after the date hereof or any unimproved real property
acquired on or prior to the date hereof to the Company or any
Subsidiary, which encumbrance or restriction is required by a
lender to, or purchaser of any indebtedness of, such Subsidiary
in connection with a financing or refinancing permitted
hereunder; and (iv) any encumbrance or restriction pursuant to
any agreement that extends, refinances, renews or replaces any
agreement containing any of the restrictions described in the
foregoing clauses (i)-(iii), provided that the terms and
conditions of any such restrictions are not materially less
favorable to the Holders of the Securities than those under or
pursuant to the agreement extended, refinanced, renewed or
replaced.
Section 1017. Limitation on Unrestricted Subsidiaries.
The Company will not make, and will not permit any of
its Subsidiaries to make, any Investments in Unrestricted
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Subsidiaries if, at the time thereof, the aggregate amount of
such Investments would exceed the amount of Restricted Payments
then permitted to be made pursuant to Section 1008. Any
Investments in Unrestricted Subsidiaries permitted to be made
pursuant to this Section 1017 (i) will be treated as the payment
of a Restricted Payment in calculating the amount of Restricted
Payments made by the Company and (ii) may be made in cash or
property.
Section 1018. Statement as to Compliance; Notice of
Default; Provision of Financial Statements.
(a) The Company will deliver to the Trustee, within 120
days after the end of each fiscal year ending after the date
hereof, a brief certificate of its principal executive officer,
principal financial officer or principal accounting officer
stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with
by it under this Indenture. For purposes of this Section 1018,
such compliance shall be determined without regard to any period
of grace or requirement of notice under this Indenture.
(b) If a Default has occurred and is continuing, or if
the Trustee, any Holder or the trustee for or the holder of any
other evidence of Indebtedness of the Company (other than
Indebtedness in the aggregate principal amount of less than
$50,000,000) gives any notice or takes any other action with
respect to a claimed Default, the Company shall deliver to the
Trustee an Officers' Certificate specifying such Default, notice
or other action within 5 Business Days of its occurrence.
(c) The Company shall supply without cost to each
Holder of the Securities, and file with the Trustee within l5
days after the Company is required to file the same with the
Commission, copies of the annual reports and quarterly reports
and of the information, documents and other reports which the
Company may be required to file with the Commission pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act.
(d) If the Company is not required to file with the
Commission such reports and other information referred to in
Section 1018(c), the Company shall furnish without cost to each
Holder of the Securities and file with the Trustee (i) within 105
days after the end of each fiscal year, annual reports containing
the information required to be contained in Items 1, 2, 3, 5, 6,
7, 8, 9, 10, 11, 12 and 13 of Form 10-K promulgated under the
Exchange Act, or substantially the same information required to
be contained in comparable items of any successor form, (ii)
within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, quarterly reports
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containing the information required to be contained in Form 10-Q
promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form and
(iii) promptly from the time after the occurrence of an event
required to be therein reported, such other reports containing
information required to be contained in Form 8-K promulgated
under the Exchange Act, or substantially the same information
required to be contained in any successor form. The Company
shall also make such reports available to prospective purchasers
of the Securities, securities analysts and broker-dealers upon
their request.
Section 1019. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1007
through 1018 (other than Section 1012) if, before or after the
time for such compliance, the Holders of not less than a majority
in aggregate principal amount of the Securities at the time
Outstanding shall, by Act of such Holders, waive such compliance
in such instance with such covenant or condition, but no such
waiver shall extend to or affect such covenant 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 covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.
The Securities may be redeemed, otherwise than through
the operation of the sinking fund provided for in Article Twelve,
at the election of the Company at any time, as a whole or in part
subject to the conditions and at the Redemption Prices specified
in the form of Security, together with accrued interest to the
Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities 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 Securities
pursuant to Section 1101 shall be evidenced by a Board
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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 it (unless a shorter notice period shall
be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be
redeemed.
Section 1104. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be
selected not more than 60 days and not less than 30 days prior to
the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, either pro rata,
by lot or, by any other method the Trustee shall deem fair and
reasonable, and the amounts to be redeemed may be equal to $1,000
or any integral multiple thereof.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities 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
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 21 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a
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Security to be redeemed in part, the principal amount) of the
particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security or
portion thereof, and that (unless the Company shall default
in payment of the Redemption Price) interest thereon shall
cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) if applicable, that such redemption is for the
sinking fund provided in Article Twelve;
(g) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(h) the CUSIP number, if any, relating to such
Securities; and
(i) in the case of a Security to be redeemed in part,
the principal amount of such Security to be redeemed and that
after the Redemption Date upon surrender of such Security,
new Security or Securities in the aggregate principal amount
equal to the unredeemed portion thereof will be issued.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at its
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 in same day
funds (or New York Clearing House funds if such deposit is made
prior to the applicable Redemption Date) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be
an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
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become due and payable at the Redemption Price therein specified
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price
together with accrued interest to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record
Dates according to the terms and the provisions of Section 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal thereof
(and premium, if any, thereon) shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall
be surrendered at the office or agency of the Company maintained
for such purpose pursuant to Section 1002 (with, if the Company,
the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar or the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUND
Section 1201. Mandatory Sinking Fund Payments.
As a mandatory sinking fund for the retirement of the
Securities, the Company will, until all of the Securities shall
have been paid, or payment thereof duly provided for, pay to the
Trustee, on or prior to June 15, 2000 and on or prior to June 15,
2001, an amount in same day funds (or New York Clearing House
funds if such payment is made prior to the applicable June 15)
sufficient to redeem 25% of original aggregate principal
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amount of Securities at the Redemption Price specified in the
form of Security hereinbefore set forth. The cash amount of any
sinking fund payment is subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities on such June 15 as herein provided.
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver Outstanding Securities
(other than any previously called for redemption pursuant to this
Article Twelve) theretofore purchased or otherwise acquired by
the Company and (b) may apply as a credit Securities 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 Section
1201; provided that such Securities have not been previously so
credited. Each such Security shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in
the form of Security set forth in Article Two for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking
Fund.
On or before April l5, 2000 and April 15, 2001, the
Company will deliver to the Trustee an Officers' Certificate
specifying the portion of the mandatory sinking fund payment in
Section 1201, 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 Securities pursuant to Section l202 and
will also deliver, if not previously delivered, to the Trustee
any Securities to be so delivered. 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 for the Securities shall be paid
entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Securities as
provided in Section 1202. Before May 1 in each such year the
Trustee shall select the Securities to be redeemed upon the next
ensuing June 15 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
Securities shall be made
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upon the terms and in the manner stated in Sections 1107 and
1108.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set
forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of and premium, if
any, and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the
prior payment in full, in cash or cash equivalents, of all Senior
Indebtedness (including any interest accruing after the
occurrence of an Event of Default under Section 501(g) or (h)).
This Article Thirteen shall constitute a continuing
offer to all persons who become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit
of the holders of Senior Indebtedness, and such holders are made
obligees hereunder and any one or more of them may enforce such
provisions. Holders of Senior Indebtedness need not prove
reliance on the subordination provisions hereof.
Section 1302. Payment Over of Proceeds Upon
Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or
other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets and
liabilities of the Company, then and in any such event:
(1) the holders of all Senior Indebtedness shall be
entitled to receive payment in full, in cash or cash
equivalents, of all amounts due or to become due on or
in respect of all Senior Indebtedness, or provision
shall be made for such payment in cash or cash equivalents,
before the Holders of the Securities are entitled to receive
any payment on account of
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principal of (or premium, if any) or interest on the
Securities; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash,
property or securities, by set-off or otherwise, to
which the Holders or the Trustee would be entitled but
for the provisions of this Article Thirteen, including
any such payment or distribution which may be payable or
deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the
payment of the Securities (except, so long as the effect
of this parenthetical clause is not to cause the
Securities to be treated in any case or proceeding or
similar event described in Subsection (a), (b) or (c) of
this Section 1302 as part of the same class of claims as
the Senior Indebtedness or any class of claims on a
parity with or senior to the Senior Indebtedness, for
any such payment or distribution (x) authorized by an
order or decree giving effect, and stating in such order
or decree that effect is given, to the subordination of
the Securities to the Senior Indebtedness, and made by a
court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law, or (y) of
securities that (A) are unsecured (except to the extent the
Securities are secured), (B) have an Average Life to Stated
Maturity and final maturity which are no shorter than
the Average Life to Stated Maturity of the Securities or
any securities issued to the holders of the Senior
Indebtedness under the Bank Credit Agreement pursuant to
a plan of reorganization or readjustment, (C) are
subordinated, to at least the same extent as the
Securities, to the payment of all Senior Indebtedness
then outstanding and (D) are not guaranteed by any
Subsidiary of the Company (except to the extent the
Securities are so guaranteed)), shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior
Indebtedness or their Representative or Representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and premium, if
any, and interest on, and other amounts due or in
connection with, the Senior Indebtedness held or
represented by each, to the extent necessary to make
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payment in full, in cash or cash equivalents, of all
Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of
any Security shall have received any such payment or
distribution of assets of the Company of any kind or
character, whether in cash, property or securities,
including any such payment or distribution which may be
payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to
the payment of the Securities, before all Senior
Indebtedness is paid in full, in cash or cash
equivalents, then and in such event such payment or
distribution shall be paid over or delivered forthwith
to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company
for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary
to pay all Senior Indebtedness in full, in cash or cash
equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of
the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance, transfer or
lease of its properties and assets substantially as an entirety
to another corporation upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the corporation formed by
such consolidation or into which the Company is merged or the
corporation which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set
forth in Article Eight.
Section 1303. No Payment When Specified Senior
Indebtedness in Default.
(a) (i) In the event of and during the continuation of
any default in the payment of principal of (or premium, if any)
or interest on any Specified Senior Indebtedness beyond any
applicable grace period with respect thereto, or (ii) in the
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event that any other event of default with respect to any
Specified Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Specified Senior
Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable,
or (b) in the event that any event of default (other than a
default described in clause (a)) with respect to any Specified
Senior Indebtedness shall have occurred and be continuing
permitting the holders of such Specified Senior Indebtedness (or a
trustee on behalf of such holders) to declare such Specified
Senior Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable, then no payment
shall be made by the Company on account of the principal of (or
premium, if any) or interest on the Securities or on account of
the purchase or redemption or other acquisition of Securities
(x) in case of any event of default described in subclause (i) of
clause (a), or an event of default described in subclause (ii) of
clause (a) resulting in an acceleration as specified in clause
(a), unless and until such payment event of default shall have
been cured or waived or shall have ceased to exist or such
acceleration shall have been rescinded or annulled or the holders
of such Specified Senior Indebtedness or their agents have waived
the benefits of this Section, or (y) in case of any event of
default specified in clause (b), from the earlier of the date the
Company or the Trustee receives written notice of such event of
default (which notice requests that no such payment be made) from
the agent with respect to any such event of default under the
Bank Credit Agreement or any other Representative of a holder of
Specified Senior Indebtedness with respect to any such event of
default under such Specified Senior Indebtedness until the
earlier of (1) 179 days after such date and (2) the date, if any,
on which the Specified Senior Indebtedness to which such event of
default relates is discharged or such event of default is waived
by the holders of such Specified Senior Indebtedness (including,
if any Indebtedness under the Bank Credit Agreement is
outstanding, lenders under the Bank Credit Agreement) or
otherwise cured (provided that further written notice relating to
the same or any other event of default specified in clause (b)
above with respect to any Specified Senior Indebtedness received
by the Company or the Trustee within 12 months after such receipt
shall not be effective for purposes of this clause (y)).
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this
Section, then and in such event such payment shall be paid over
and delivered forthwith to the Company.
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The provisions of this Section shall not apply to any
payment with respect to which Section 1302 would be applicable.
Section 1304. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent the Company,
at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303, from making payments at
any time of principal of (and premium, if any) or interest on the
Securities.
Section 1305. Subrogation to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full, in cash or cash
equivalents, of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Indebtedness of the Company to
the same extent as the Securities are subordinated and which is
entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and
no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 1306. Provisions Solely to Define Relative
Rights.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the
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Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
express limitations set forth in Article Five and to the rights,
if any, under this Article of the holders of Senior Indebtedness
(1) in any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to
in Section 1302, to receive, pursuant to and in accordance with
such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1303, to prevent any payment
prohibited by such Section.
Section 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or notice
to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and
without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or
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more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding;
(b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1309. Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice,
the Trustee shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to
such date.
Subject to the provisions of Section 601, the Trustee
shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor). In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such
Person, the
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extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is
not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
Section 1310. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the
provisions of Section 602, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
Section 1311. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
Section 1312. Article Applicable to Paying Agents.
In case at any time Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or
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in place of the Trustee; provided, however, that Section 1311
shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
Section 1313. Rescission.
The provisions of this Article Thirteen shall continue
to be effective or be reinstated, as the case may be, if at any
time any payment in respect of any Senior Indebtedness is
rescinded or must otherwise be returned by the holder thereof
upon the insolvency, bankruptcy or reorganization of the Company
or otherwise, all as though such payment had not been made.
Section 1314. Application by Trustee of Assets
Deposited With It.
Any cash or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with
Section 1401 shall be for the sole benefit of the Holders and
shall not be subject to the subordination provisions of this
Article Thirteen.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at
any time, with respect to the Securities, elect to have either
Section 1402 or Section 1403 be applied to all Outstanding
Securities upon compliance with the conditions set forth below in
this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise under Section l401 of the
option applicable to this Section 1402, the Company shall be
deemed to have been discharged from its obligations with respect
to all Outstanding Securities on the date the conditions set
forth below 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 Securities, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in (A) and (B)
below, and to have
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satisfied all its other obligations under such Securities and
this Indenture, including its obligations under the covenants
contained in Article Thirteen (and the Trustee, on demand of and
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 Securities to receive
solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (D) this Article
Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section
1403 with respect to the Securities.
Section 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 of the
option applicable to this Section 1403, the Company shall be
released from its obligations under the covenants contained in
Articles Eight and Thirteen and in Sections 1007 through 1018
with respect to the Outstanding Securities on and after the date
the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Securities shall thereafter be
deemed to be not "Outstanding" for the 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 (it being understood that such Securities shall not be
deemed Outstanding for financial accounting purposes). For this
purpose, such covenant defeasance means that, with respect to the
Outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any terms, 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(d)
or Section 501(i), but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected
thereby. In addition, upon the Company's exercise under Section
1401 of the option applicable to Section 1403, Sections 501(d)
through 501(i) (other than Sections 501(g) and (h)) shall not
constitute Events of Default.
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Section 1404. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 1402 or Section 1403 to the Outstanding
Securities:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 608 who
shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such
Securities, (A) cash in U.S. Dollars in an amount, or
(B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment,
cash in U.S. Dollars in an amount, or (C) a combination
thereof, 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 and which shall be
applied by the Trustee (or other qualifying trustee) to
pay and discharge, (i) the principal of (and premium, if
any) and interest on the Outstanding Securities on the Stated
Maturity of such principal or installment of principal (and premium,
if any) or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the
Outstanding Securities on the day on which such payments
are due and payable in accordance with the terms of this
Indenture and of such Securities; provided that the
Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the
Securities. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct
obligations of the United States of America for the
timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America,
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
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defined in Section 3(a)(2) of the Securities Act of
1933, as amended), 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;
(2) In the case of an election under Section 1402,
the Company shall have delivered to the Trustee an
Opinion of 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 hereof, there has been a change in
the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities
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 1403,
the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States to the effect
that the Holders of the Outstanding Securities 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 Securities shall have occurred and be continuing on
the date of such deposit or, insofar as Subsection
501(g) or 501(h) is 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);
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(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 is a party
or by which it is bound;
(6) In the case of an election under either
Section 1402 or 1403, the Company shall have delivered
to the Trustee an Officers' Certificate stating that the
deposit made by the Company pursuant to its election
under Section 1402 or 1403 was not made by the Company
with the intent of preferring the Holders over other
creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(7) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel in the United States, each stating that all
conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been
complied with as contemplated by this Section 1404.
On and after the date the conditions set forth above are
satisfied, the United States dollars or U.S. Government
Obligations so deposited shall not be subject to the rights of
the holders of Senior Indebtedness pursuant to the provisions of
Article Thirteen.
Section 1405. 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 1405, the "Trustee") pursuant to Section 1404 in respect
of the Outstanding Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities 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. Money and U.S. Government Obligations so
held in trust are not subject to Article Thirteen.
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The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
cash or U.S. Government Obligations deposited pursuant to Section
1404 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 Securities.
Anything in this Article Fourteen 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 1404
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 1404(l)), are in excess of the
amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or U.S. Government Obligations in
accordance with Section 1402 or 1403, as the case may be, 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 Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, 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 1402
or 1403, as the case may be; provided, however, that, if the
Company makes any payment of principal of (or premium, if any) or
interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
* * * * *
- 105 -
This Indenture may be signed in any number of
counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
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.
PATHMARK STORES, INC.
By: /s/ Anthony Cuti
Title: President and Chief
Financial Officer
Attest: /s/
Title:
WILMINGTON TRUST COMPANY
By: /s/ Donald G. MacKelcan
Title: Financial Services
Officer
Attest:
Title:
- 106 -
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of October, 1993, before me
personally came Anthony Cuti, to me known, who, being by me
duly sworn, did depose and say that s/he resides at Saddle River,
New Jersey; that s/he is President of PATHMARK STORES, INC., one
of the corporations described in and which executed the above
instrument; that s/he knows the corporate seal of such corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of
Directors of such corporation; and that s/he signed her/his name
thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/ Linda Corrigan
--------------------------
Notary Public
- 107 -
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of October, 1993, before me
personally came Donald B. MacKelcan, to me known, who, being duly
sworn, did depose and say that s/he resides at Wilmington,
Delaware; that s/he is Financial Services Officer of WILMINGTON
TRUST COMPANY, one of the corporations described in and which
executed the above instrument; that s/he knows the corporate seal
of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority
of the Board of Directors of such corporation; and that s/he
signed her/his name thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/ Linda Corrigan
--------------------------
- 108 -
Schedule I
PATHMARK STORES, INC.
CERTAIN EXISTING INDEBTEDNESS
-----------------------------
(000's OMITTED)
INDUSTRIAL REVENUE BONDS
(See details on page 2) $ 6,375
OTHER DEBT (PRIMARILY MORTGAGES)
(See details on page 2) 41,804
-------
$48,179
=======
Holdings Intercompany Note related to the Holdings Subordinated Notes in an aggregate principal amount
equal to or less than $3,361,000.
Holdings Intercompany Note related to the 13-1/8 Junior Subordinated Discount Debentures due 2003 of
Holdings in an aggregate principal amount equal to or less than $1,800,000.
S-I-1
Schedule I (cont'd)
PATHMARK STORES, INC.
CERTAIN EXISTING INDEBTEDNESS
-----------------------------
INTEREST MATURITY BALANCE
INDEBTEDNESS RATE DATE (IN THOUSANDS)
------------------------ -------- -------- --------------
Massachusetts Mutual Life 9.0% 1999 $ 243
Insurance Company
1295 State Street
Springfield, MA 01101
Re: Madison Stuart Properties
John Hancock Mutual Life 7.0 1994 1,207
Insurnace Company
200 Berkley Street
Boston, MA 02117
Re: Bridge Stuart Properties
Massachusetts Mutual Life 7.0-9.0 1993-99 480
Insurance Company
1295 State Street
Springfield, MA 01101
Re: Pennsylvania Stuart Properties
Connecticut General Life 10.2-10.4 1997-99 855
Insurance Company
Hartford, CT 06115
Re: Jersey Stuart Properties
Prudential Insurance Company 10.5 1998 37,278
of America
10 Rockefeller Center, 15th Fl.
New York, NY
Re: SGC Mortgaged Properties
Delaware Economic Development 10.875 2003 3,000
Authority
c/o Philadelphia National Bank
P.O. Box 7010
Philadelphia, PA
Re: Lancaster Pike IRB
Industrial Revenue Bonds 10.6 2003 3,375
c/o Philadelphia National Bank
P.O. Box 7918
Philadelphia, PA
Re: Schillington IRB
Jacqueline Nallitt 11.0 1999 276
1688 Victory Blvd.
Staten Island, NY
Re: Forrest Ave. Mall Store
Mt. Vernon Urban Renewal Agency 8.0 1995 670
9 South First Ave., 9th Fl.
Mt. Vernon, NY 10550
Re: Mt. Vernon Development
AFCO 5.5 1994 795
900 Lanidex Plaza
Parsippany, NJ 07054
Re: Insurance Policy Premium ______
LONG TERM DEBT $48,179
=======
S-I-2
Schedule I
PATHMARK STORES, INC.
CERTAIN EXISTING LIENS
----------------------
The Indebtedness listed hereon is secured only by mortgages on the properties listed opposite such
Indebtedness.
INTEREST MATURITY BALANCE
INDEBTEDNESS PROPERTY RATE DATE (IN THOUSANDS)
-------------------------- ------------------------- -------- -------- --------------
Massachusetts Mutual Life Pathmark of Hamilton 9.0% 1999 $ 243
Insurance Company 2735 S. Broad Street
1295 State Street Hamilton Township, NJ 08610
Springfield, MA 01101
Re: Madison Stuart Properties
John Hancock Mutual Life Pathmark of Inwood 7.0% 1994 362
Insurance Company 410 W. 207th Street
200 Berkley Street New York, NY 10034
Boston, MA 02117
Re: Bridge Stuart Properties Pathmark & Rickel of 511
Edgewater Park
2110 Rt. 130 & Wood Lane Rd.
Beverly, NJ 08010
Pathmark of Ivy Hill .344
1331 Ivy Hill Road
Springfield Township
Philadelphia, PA 19150
Massachusetts Mutual Life Former Pathmark of Whitaker 7.0-9.0 1993-99 394
Insurance Company 5520 Whitaker Avenue
1295 State Street Philadelphia, PA 19124
Springfield, MA 01101
Re: Pennsylvania Stuart Franklin Township Gas
Properties 673 Somerset Street
Somerset, NJ 08873
Paramus Gas 34
639 Route 17 South
Paramus, NJ 07652
Fairless Hills Gas 28
Route 1 and Atlantic Ave.
Fairless Hills, PA 19030
Connecticut General Life Pathmark of Belmont 10.2-10.4 1997-99 855
Insurance Company 115 Belmont Avenue
Hartford, CT 06115 Belleville, NJ 07109
Re: Jersey Stuart
Properties
Prudential Insurance Company Pathmark of Upper Darby 10.5 1998 1,710
of America 421 S. 69th Street
10 Rockefeller Center, Upper Darby, PA 19082
15th Fl.
New York, NY
Re: SGC Mortgaged Properties Pathmark & Rickel of 4,355
Glenolden
140 N. McDade Blvd.
Glenolden, PA 19036
Pathmark & Rickel of 3,078
Shillington
243A W. Lancaster Avenue
Shillington, PA 19607
S-I-3
INTEREST MATURITY BALANCE
INDEBTEDNESS PROPERTY RATE DATE (IN THOUSANDS)
-------------------------- ------------------------- -------- -------- --------------
Prudential Insurance Company Pathmark of Willow Grove 4,450
of America (continued) 2545 Moreland Road
Willow Grove, PA 19090
Pathmark of Lancaster Pike 2,018
3901 Lancaster Pike
Wilmington, DE 19805
Pathmark & Rickel of East 9,633
Brunswick
50 Race Track Road
East Brunswick, NJ 08615
Rickel of Forrest Avenue 3,135
1520 Forrest Avenue
Staten Island, NY 10302
Rickel of Johnson City 2,337
540 Harry L. Drive
Johnson City, NY 13790
Pathmark Drug of Danbury 10.5 1996 2,200
100 Danbury - Newtown Road
Danbury, CT 06810
Purity Supreme Store 3,762
3375 Berlin Turnpike
Newington, CT 06111
Jacqueline Nallitt Pathmark of Forrest 11.0 1999 276
1688 Victory Blvd. Avenue
Staten Island, NY 1351 Forrest Avenue
Re: Forrest Ave. Mall Store Staten Island, NY 10302
Mt. Vernon Urban Renewal Agency Pathmark Development 8.0 1995 670
9 South First Ave., 9th Fl. One Pathmark Plaza
Mt. Vernon, NY 10550 Mt. Vernon, NY 10550
Re: Mt. Vernon Development
_______
$41,009
=======
S-I-4
APPENDIX A
[Form of Intercompany Agreement]
[Indebtedness of the Company or any Majority-owned
Subsidiary to any one or the other of them will qualify
as Permitted Indebtedness if, and only if, such
Indebtedness is made pursuant to and is evidenced
by an agreement in the form of a promissory
note in substantially the form as follows:]
$ , 19
Evidences of all loans or advances ("Loans") hereunder
shall be reflected on the grid attached hereto. FOR VALUE
RECEIVED, , a corporation (the
"Maker"), HEREBY PROMISES TO PAY ON DEMAND to the order of
(the "Holder") the principal sum of the aggregate
unpaid principal amount of all Loans (plus accrued interest
thereon) at any time and from time to time made hereunder.
All capitalized terms used herein that are defined in,
or by reference in, the Indenture between Pathmark Stores, Inc.
and Wilmington Trust Company, trustee, dated as of , 1993
with respect to the 11-5/8% Subordinated Notes, due 2002 (the
"Indenture"), have the meanings assigned to such terms therein,
or by reference therein, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01. Not Forgivable. Unless the Maker of the
Loan hereunder is the Company, the Holder may not forgive any
amounts owing under this Intercompany Note.
A-1
Section 1.02. Interest; Prepayment. (a) The interest
rate ("Interest Rate") on any Loan shall be a rate per annum
reflected on the grid attached hereto.
(b) The interest, if any, payable on each of the Loans
shall accrue from the date such Loan is made and shall be payable
upon demand of the Holder.
(c) If the principal or accrued interest, if any, on
the Loans is not paid on the date demand is made, interest on the
unpaid principal and interest will accrue at a rate equal to the
Interest Rate, if any, plus 1% per annum from maturity until the
principal and interest on such Loans are fully paid.
(d) Any amounts owed hereunder may be prepaid at any
time by the Maker.
Section 1.03. Subordination. All Loans made to the
Company shall be subordinated in right of payment to the payment
and performance of the obligations of the Company and any
Subsidiary under the Indenture, the Securities, and any other
Indebtedness ranking senior to or pari passu with the Securities,
including, without limitation, any Senior Indebtedness; provided
that, with respect to a Subsidiary in any specific instance, such
Subsidiary is also an obligor under the Indenture, the Securities
or such other senior or pari passu Indebtedness, as the case may
be, whether as a borrower, guarantor or pledgor of collateral.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01. Events of Default. If, after the date of
issuance of this Loan an Event of Default has occurred under the
Indenture, then (x) in the event the Maker is not the Company and
not a Subsidiary that is also an obligor under the Indenture or
the Securities (in the case where the Holder is not the Company),
all amounts owing under the Loans hereunder shall be immediately
due and payable (whether or not demand has been made) to the
Holder, (y) in the event the Maker is the Company, the amounts
owing under the Loans hereunder shall not be payable and (z) in
the event the Maker is a Subsidiary that is also an obligor under
the Indenture or the Securities and the Holder is not the Company
or another Subsidiary that is also an obligor under the Indenture
or the Securities, the amounts owing under the Loans hereunder
shall not be due and payable; provided, however, that, if such
Event of Default or acceleration has been waived, cured or
rescinded, such amounts
A-2
shall no longer be due and payable in the case of clause (x), and
such amounts may be paid in the case of clauses (y) and (z). If
the Holder is a Subsidiary, then the Holder hereby agrees that if
it receives any payments or distributions on any Loan from the
Company, or from a Subsidiary that is also an obligor under the
Indenture or the Securities, which payments or distributions,
pursuant to clause (y) or (z) of the prior sentence, are not
payable after any Event of Default has occurred, is continuing
and has not been waived, cured or rescinded, such Holder will pay
over and deliver forthwith to the Company or such Subsidiary, as,
the case may be, all such payments and distributions.
ARTICLE III
MISCELLANEOUS
Section 3.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, or consent to depart
therefrom is permitted at any time for any reason, except with
the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities.
Section 3.02. Assignment. No party to this Agreement
may assign, in whole or in part, any of its rights and
obligations under this Agreement, except to its legal
successor-in-interest.
Section 3.03. Third Party Beneficiaries. The Holders
of the Securities or any other Indebtedness ranking pari passu
with, or senior to, the Securities including, without limitation,
any Senior Indebtedness, shall be third party beneficiaries to
this Agreement and shall have the right to enforce this Agreement
against the Company and the Subsidiaries.
Section 3.04. Headings. Article and Section headings
in this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose.
Section 3.05. Entire Agreement. This Agreement sets
forth the entire agreement of the parties with respect to its
subject matter and supersedes all previous understandings,
written or oral, in respect thereof.
Section 3.06. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
A-3
Section 3.07. Waivers. The Maker hereby waives
presentment, demand for payment, notice of protest and all other
demands and notices in connection with the delivery, acceptance,
performance or enforcement hereof.
By:
A-4
GRID
Amount Interest Rate
Date of of on the Notation
Advance Advance Advance Made By
Appendix B-1
[Form of Holdings Intercompany Note]
PROMISSORY NOTE
U.S. $ Dated as of: , 1993
FOR VALUE RECEIVED, the undersigned, Supermarkets
General Corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of Supermarkets General Holdings Corporation (the
"Lender") the principal sum of United States
Dollars (U.S. $ ) at the times and in the amounts
provided for the payment of principal thereof or thereunder (and
any premiums) in the Indenture dated as of May 1, 1992 by and
between the Lender and Wilmington Trust Company, Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture
dated as of , 1993 between the Lender and the
Trustee and the 11-5/8% Subordinated Notes due 2002 issued
thereunder (such Indenture and Notes, as supplemented, amended,
modified or waived from time to time in accordance with the terms
thereof being the "Lender Indenture" and "Lender Subordinated
Notes", respectively), together with interest on such principal
sum from the date hereof at the times and in the amounts provided
in the Lender Indenture and the Lender Subordinated Notes for the
payment of interest thereunder.
Indebtedness evidenced by this Note is subordinated in
right of payment to the prior payment in full of (i) all Senior
Indebtedness (as defined in the Indenture dated as of ,
1993 by and between the Borrower and Wilmington Trust Company,
Trustee with respect to the 11-5/8% Subordinated Notes due 2002
(the "Borrower Indenture"), (ii) the Borrower's 11-5/8%
Subordinated Notes due 2002 (the "Borrower Subordinated Notes")),
(iii) the Subordinated Debentures and the Deferred Coupon Notes
(as defined in the Borrower Indenture) and (iv) all other
Indebtedness (as defined in the Borrower Indenture) of the
Borrower, whether outstanding on the date of the Borrower
Indenture or thereafter created, incurred, assumed or guaranteed
to the same extent as the Borrower Subordinated Notes are
subordinated to Senior Indebtedness (as defined in the Borrower
Indenture) of the Borrower under the Borrower Indenture. For
purposes of this provision, Article Thirteen and other relevant
provisions of the Borrower Indenture are hereby incorporated by
reference in this Note with appropriate modifications to the
extent required by the terms hereof to effectuate such
subordination.
The Borrower shall make each payment under this Note not
later than 12:00 noon (Eastern Standard time) on the day when due
in lawful money of the United States of America (in freely
transferable United States dollars) to the Lender at its address
c/o Merrill Lynch Capital Partners, Inc., 767 Fifth Avenue, 48th
Floor, New York, New York 10153, Attention: Stephen M. McLean, or
at such other address of which the Lender may give the Borrower
written notice from time to time, in same day funds.
Computations of interest shall be made by the Lender in
accordance with the terms and conditions contained in the Lender
Indenture and the Lender Subordinated Notes.
This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to
be executed by its duly authorized representative as of the day
and year first above written.
SUPERMARKETS GENERAL CORPORATION
By
Name:
Title:
Address: 301 Blair Road
Woodbridge, NJ 07095
8283e B-1-2
Appendix B-2
[Form of Holdings Intercompany Note]
PROMISSORY NOTE
U.S. $ Dated as of: , 1993
FOR VALUE RECEIVED, the undersigned, Supermarkets
General Corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of Supermarkets General Holdings Corporation (the
"Lender") the principal sum of United States
Dollars (U.S. $ ) at the times and in the amounts
provided for the payment of principal thereof or thereunder (and
any premiums) in the Indenture dated as of May 25, 1987 by and
between the Lender and Wilmington Trust Company, Trustee (the
"Trustee"), as amended and restated as of May 15, 1992 and as
supplemented as of June 15, 1992 and the 12-5/8% Subordinated
Debentures due 2002 issued thereunder (such Indenture and Notes,
as supplemented, amended, modified or waived from time to time in
accordance with the terms thereof being the "Lender Indenture"
and "Lender Subordinated Debentures", respectively), together
with interest on such principal sum from the date hereof at the
times and in the amounts provided in the Lender Indenture and the
Lender Subordinated Debentures for the payment of interest
thereunder.
Indebtedness evidenced by this Note is subordinated in
right of payment to the prior payment in full of (i) all Senior
Indebtedness (as defined in the Indenture dated as of ,
1993 by and between the Borrower and Wilmington Trust Company,
Trustee with respect to the 12-5/8% Subordinated Debentures due
2002 (the "Borrower Indenture"), (ii) the Borrower's 12-5/8%
Subordinated Debentures due 2002 (the "Borrower Subordinated
Notes")), (iii) the Subordinated Notes and the Deferred Coupon
Notes (as defined in the Borrower Indenture) and (iv) all other
Indebtedness (as defined in the Borrower Indenture) of the
Borrower, whether outstanding on the date of the Borrower
Indenture or thereafter created, incurred, assumed or guaranteed
to the same extent as the Borrower Subordinated Notes are
subordinated to Senior Indebtedness (as defined in the Borrower
Indenture) of the Borrower under the Borrower Indenture. For
purposes of this provision, Article Thirteen and other relevant
provisions of the Borrower Indenture are hereby incorporated by
reference in this Note with appropriate modifications to the
extent required by the terms hereof to effectuate such
subordination.
The Borrower shall make each payment under this Note not
later than 12:00 noon (Eastern Standard time) on the day when due
in lawful money of the United States of America (in freely
transferable United States dollars) to the Lender at its address
c/o Merrill Lynch Capital Partners, Inc., 767 Fifth Avenue, 48th
Floor, New York, New York 10153, Attention: Stephen M. McLean, or
at such other address of which the Lender may give the Borrower
written notice from time to time, in same day funds.
Computations of interest shall be made by the Lender in
accordance with the terms and conditions contained in the Lender
Indenture and the Lender Subordinated Notes.
This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Borrower has caused this Note to
be executed by its duly authorized representative as of the day
and year first above written.
SUPERMARKETS GENERAL CORPORATION
By
Name:
Title:
Address: 301 Blair Road
Woodbridge, NJ 07095
8283e B-2-2