1
EXHIBIT 4.1
____________________________________________________________________________
FOOD 4 LESS SUPERMARKETS, INC.
TO BE MERGED WITH AND INTO RALPH'S GROCERY COMPANY
AND
SUBSIDIARY GUARANTORS
AND
UNITED STATES TRUST COMPANY OF NEW YORK
TRUSTEE
_________________
INDENTURE
Dated as of , 1995
________________
$575,000,000
____% Senior Notes
due 2004
______________________________________________________________________________
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310(a)(1).................................. 8.10
(a)(2).................................. 8.10
(a)(3).................................. N.A.
(a)(4).................................. N.A
(a)(5).................................. 8.10; 8.11
(b)..................................... 8.08; 8.10;
13.02
(c)..................................... N.A.
311(a)..................................... 8.11
(b)..................................... 8.11
(c)..................................... N.A.
312(a)..................................... 2.05
(b)..................................... 13.03
(c)..................................... 13.03
313(a)..................................... 8.06
(b)(1).................................. N.A
(b)(2).................................. 8.06
(c)..................................... 8.06; 13.02
(d)..................................... 8.06
314(a)..................................... 5.07; 5.09;
13.02
(b)..................................... N.A.
(c)(1).................................. 8.02; 13.04
(c)(2).................................. 8.02; 13.04
(c)(3).................................. N.A.
(d)..................................... N.A.
(e)..................................... 13.05
(f)..................................... N.A
315(a)..................................... 8.01(b)
(b)..................................... 8.05; 13.02
(c)..................................... 8.01(a)
(d)..................................... 8.01(c)
(e)..................................... 7.11
316(a)(last sentence)...................... 2.09
(a)(1)(A)............................... 7.05
(a)(1)(B)............................... 7.04
(a)(2).................................. N.A.
(b)..................................... 7.07
317(a)(1).................................. 7.08
(a)(2).................................. 7.09
(b)..................................... 2.04
318(a)..................................... 13.01
(c)..................................... 13.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Page
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Section 1.01 Definitions.................................
Section 1.02 Incorporation by Reference of TIA...........
Section 1.03 Rules of Construction.......................
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating.............................
Section 2.02 Execution and Authentication................
Section 2.03 Registrar and Paying Agent..................
Section 2.04 Paying Agent to Hold Assets in
Trust.....................................
Section 2.05 Securityholder Lists........................
Section 2.06 Transfer and Exchange.......................
Section 2.07 Replacement Securities......................
Section 2.08 Outstanding Securities......................
Section 2.09 Treasury Securities.........................
Section 2.10 Temporary Securities........................
Section 2.11 Cancellation................................
Section 2.12 Defaulted Interest..........................
Section 2.13 CUSIP Number................................
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee..........................
Section 3.02 Selection of Securities to Be
Redeemed..................................
Section 3.03 Notice of Redemption........................
Section 3.04 Effect of Notice of Redemption..............
Section 3.05 Deposit of Redemption Price.................
Section 3.06 Securities Redeemed in Part.................
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities.....................
Section 4.02 Maintenance of Office or Agency...........
Section 4.03 Limitation on Restricted Payments.........
Section 4.04 Corporate Existence.......................
Section 4.05 Payment of Taxes and Other Claims.........
Section 4.06 Maintenance of Properties and
Insurance...............................
Section 4.07 Compliance Certificate; Notice of
Default.................................
Section 4.08 Compliance with Laws......................
Section 4.09 SEC Reports...............................
Section 4.10 Waiver of Stay, Extension or Usury
Laws....................................
Section 4.11 Limitation on Transactions with
Affiliates..............................
Section 4.12 Limitation on Incurrences of Addi
tional Indebtedness.....................
Section 4.13 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries............................
Section 4.14 Limitation on Liens.......................
Section 4.15 Limitation on Change of Control...........
Section 4.16 Limitation on Asset Sales.................
Section 4.17 Guarantees of Certain Indebtedness........
Section 4.18 Limitation on Preferred Stock of
Subsidiaries............................
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Limitation on Mergers and Certain
Other Transactions......................
Section 5.02 Successor Corporation Substituted.........
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Page
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default.........................
Section 6.02 Acceleration..............................
Section 6.03 Other Remedies............................
Section 6.04 Waiver of Past Defaults...................
Section 6.05 Control by Majority.......................
Section 6.06 Limitation on Suits.......................
Section 6.07 Rights of Holders to Receive
Payment.................................
Section 6.08 Collection Suit by Trustee................
Section 6.09 Trustee May File Proofs of Claim..........
Section 6.10 Priorities................................
Section 6.11 Right and Remedies Cumulative.............
Section 6.12 Delay or Omission Not Waiver..............
Section 6.13 Undertaking for Costs.....................
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee.........................
Section 7.02 Rights of Trustee.........................
Section 7.03 Individual Rights of Trustee..............
Section 7.04 Trustee's Disclaimer......................
Section 7.05 Notice of Default.........................
Section 7.06 Reports by Trustee to Holders.............
Section 7.07 Compensation and Indemnity................
Section 7.08 Replacement of Trustee....................
Section 7.09 Successor Trustee by Merger, Etc..........
Section 7.10 Eligibility; Disqualification.............
Section 7.11 Preferential Collection of Claim
Against Company.........................
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's
Obligations.............................
Section 8.02 Legal Defeasance and Covenant
Defeasance..............................
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Page
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Section 8.03 Application of Trust Money.................
Section 8.04 Repayment to the Company or Sub-
sidiary Guarantors.......................
Section 8.05 Reinstatement..............................
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.................
Section 9.02 With Consent of Holders....................
Section 9.03 Compliance with TIA........................
Section 9.04 Revocation and Effect of Consents..........
Section 9.05 Notation on or Exchange of
Securities...............................
Section 9.06 Trustee to Sign Amendments, Etc............
ARTICLE TEN
GUARANTEE
Section 10.01 Unconditional Guarantee....................
Section 10.02 Severability...............................
Section 10.03 Release of a Subsidiary Guarantor..........
Section 10.04 Limitation of Subsidiary Guaran-
tor's Liability..........................
Section 10.05 Subsidiary Guarantors May Consoli-
date, etc., on Certain Terms.............
Section 10.06 Contribution...............................
Section 10.07 Waiver of Subrogation......................
Section 10.08 Execution of Guarantee.....................
Section 10.09 Waiver of Stay, Extension or Usury
Laws.....................................
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls...............................
Section 11.02 Notices....................................
Section 11.03 Communications by Holders with
Other Holders............................
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Page
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Section 11.04 Certificate and Opinion as to Con-
ditions Precedent.......................
Section 11.05 Statements Required in Certificate
or Opinion..............................
Section 11.06 Rules by Trustee, Paying Agent,
Registrar...............................
Section 11.07 Legal Holidays............................
Section 11.08 Governing Law.............................
Section 11.09 No Adverse Interpretation of Other
Agreements..............................
Section 11.10 No Recourse Against Others................
Section 11.11 Successors................................
Section 11.12 Duplicate Originals.......................
Section 11.13 Severability..............................
Section 11.14 No Violation..............................
Signatures...............................................
Exhibit A - Form of Note
Exhibit B - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be
deemed to be part of the Indenture.
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INDENTURE dated as of __, 1995, among FOOD 4
LESS SUPERMARKETS, INC., a Delaware corporation (the "Com-
pany"), the SUBSIDIARY GUARANTORS, and UNITED STATES TRUST COM-
PANY OF NEW YORK, a New York corporation, as Trustee.
Each party hereto agrees as follows for the benefit
of each other party and for the equal and ratable benefit of
the Holders of the Company's _____% Senior Notes due 2004:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means (i) with respect to any
person that becomes a Subsidiary of the Company (or is merged
into the Company or any of its Subsidiaries) after the Issue
Date, Indebtedness of such person or any of its Subsidiaries
existing at the time such person becomes a Subsidiary of the
Company (or is merged into the Company or any of its Subsidiar-
ies) and which was not incurred in connection with, or in con-
templation of, such person becoming a Subsidiary of the Company
(or being merged into the Company or any of its Subsidiaries)
and (ii) with respect to the Company or any of its Subsidiar-
ies, any Indebtedness assumed by the Company or any of its Sub-
sidiaries in connection with the acquisition of any assets from
another person (other than the Company or any of its Subsidiar-
ies), and which was not incurred by such other person in con-
nection with, or in contemplation of, such acquisition.
"Adjusted Net Assets" shall have the meaning provided
in Section 10.06.
"Affiliate" means, with respect to any person, any
other person directly or indirectly controlling or controlled
by or under direct or indirect common control with such speci-
fied person. For the purposes of this definition, "control"
when used with respect to any person means the power to direct
the management and policies of such person, directly or indi-
rectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "affiliated," "control-
ling" and "controlled" have meanings correlative to the fore-
going. For purposes of Section 4.11, the term "Affiliate"
shall include any person who, as a result of any transaction
described in Section 4.11, would become an Affiliate.
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Notwithstanding the foregoing, the term "Affiliate," with
respect to the Company and its Subsidiaries, shall not include
BT Securities Corporation or any of its Affiliates.
"Affiliate Transaction" shall have the meaning pro-
vided in Section 4.11.
"Agent" means any Registrar, Paying Agent or
co-Registrar.
"Asset Sale" means, with respect to any person, any
sale, transfer or other disposition or series of sales, trans-
fers or other dispositions (including, without limitation, by
merger or consolidation or by exchange of assets and whether by
operation of law or otherwise) made by such person or any of
its subsidiaries to any person other than such person or one of
its wholly owned subsidiaries (or, in the case of a sale,
transfer or other disposition by a Subsidiary, to any person
other than the Company or a directly or indirectly wholly owned
Subsidiary) of any assets of such person or any of its subsid-
iaries including, without limitation, assets consisting of any
Capital Stock or other securities held by such person or any of
its subsidiaries, and any Capital Stock issued by any subsid-
iary of such person, in each case, outside of the ordinary
course of business, excluding, however, any sale, transfer or
other disposition, or series of related sales, transfers or
other dispositions (i) involving any Excluded Assets, (ii)
resulting in Net Proceeds to the Company and the Subsidiaries
of $500,000 or less or (iii) pursuant to any foreclosure of
assets or other remedy provided by applicable law to a creditor
of the Company with a Lien on such assets, which Lien is per-
mitted under this Indenture, provided that such foreclosure or
other remedy is conducted in a commercially reasonable manner
or in accordance with any Bankruptcy Law.
"Average Life" means, as of the date of determina-
tion, with respect to any debt security, the quotient obtained
by dividing (i) the sum of the products of the number of years
from the date of determination to the dates of each successive
scheduled principal payments of such debt security multiplied
by the amount of such principal payment by (ii) the sum of all
such principal payments.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of
debtors.
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"Board of Directors" means, with respect to any per-
son, the Board of Directors of such person or any committee of
the Board of Directors of such person duly authorized, with
respect to any particular matter, to exercise the power of the
Board of Directors of such person.
"Board Resolution" means, with respect to any person,
a duly adopted resolution of the Board of Directors of such
person.
"Business Day" means a day that is not a Legal
Holiday.
"Capital Stock" means, with respect to any person,
any and all shares, interests, participations or other equiva-
lents (however designated) of corporate stock, including each
class of common stock and preferred stock of such person.
"Capitalized Lease Obligation" means obligations
under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligations shall be the capi-
talized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" means (i) obligations issued or
unconditionally guaranteed by the United States of America or
any agency thereof, or obligations issued by any agency or
instrumentality thereof and backed by the full faith and credit
of the United States of America, (ii) commercial paper rated
the highest grade by Moody's Investors Service, Inc. and Stan-
dard & Poor's Ratings Group and maturing not more than one year
from the date of creation thereof, (iii) time deposits with,
and certificates of deposit and banker's acceptances issued by,
any bank having capital surplus and undivided profits aggre-
gating at least $500 million and maturing not more than one
year from the date of creation thereof, (iv) repurchase agree-
ments that are secured by a perfected security interest in an
obligation described in clause (i) and are with any bank
described in clause (iii) and (v) readily marketable direct
obligations issued by any state of the United States of America
or any political subdivision thereof having one of the two
highest rating categories obtainable from either Moody's Inves-
tors Service, Inc. or Standard & Poor's Ratings Group.
"Change of Control" means the acquisition after the
Issue Date, in one or more transactions, of beneficial
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ownership (within the meaning of Rule 13d-3 under the Exchange
Act) by (i) any person or entity (other than any Permitted
Holder) or (ii) any group of persons or entities (excluding any
Permitted Holders) who constitute a group (within the meaning
of Section 13(d)(3) of the Exchange Act), in either case, of
any securities of New Holdings or the Company such that, as a
result of such acquisition, such person, entity or group
beneficially owns (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, 40% or more of the then
outstanding voting securities entitled to vote on a regular
basis for a majority of the Board of Directors of the Company
(but only to the extent that such beneficial ownership is not
shared with any Permitted Holder who has the power to direct
the vote thereof); provided, however, that no such Change of
Control shall be deemed to have occurred if (A) the Permitted
Holders beneficially own, in the aggregate, at such time, a
greater percentage of such voting securities than such other
person, entity or group or (B) at the time of such acquisition,
the Permitted Holders (or any of them) possess the ability (by
contract or otherwise) to elect, or cause the election, of a
majority of the members of the Company's Board of Directors.
"Change of Control Date" shall have the meaning pro-
vided in Section 4.15.
"Change of Control Offer" shall have the meaning pro-
vided in Section 4.15.
"Change of Control Payment Date" shall have the mean-
ing provided in Section 4.15.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" means, with respect to any person, any
and all shares, interests or other participations in, and other
equivalents (however designated and whether voting or nonvot-
ing) of, such person's common stock, whether outstanding at the
Issue Date or issued after the Issue Date, and includes, with-
out Limitation, all series and classes of such common stock.
"Company" means the party named as such in this
Indenture until a successor replaces it pursuant to this Inden-
ture and thereafter means such successor.
"Consolidated Net Income," means, with respect to any
person, for any period, the aggregate of the net income (or
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loss) of such person and its subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; pro-
vided that (a) the net income of any other person in which such
person or any of its subsidiaries has an interest (which inter-
est does not cause the net income of such other person to be
consolidated with the net income of such person and its subsid-
iaries in accordance with GAAP) shall be included only to the
extent of the amount of dividends or distributions actually
paid to such person or such subsidiary by such other person in
such period; (b) the net income of any subsidiary of such per-
son that is subject to any Payment Restriction shall be
excluded to the extent such Payment Restriction actually pre-
vented the payment of an amount that otherwise could have been
paid to, or received by, such person or a subsidiary of such
person not subject to any Payment Restriction; and (c)(i) the
net income (or loss) of any other person acquired in a pooling
of interests transaction for any period prior to the date of
such acquisition, (ii) all gains and losses realized on any
Asset Sale, (iii) all gains realized upon or in connection with
or as a consequence of the issuance of the Capital Stock of
such person or any of its subsidiaries and any gains on pension
reversions received by such person or any of its subsidiaries,
(iv) all gains and losses realized on the purchase or other
acquisition by such person or any of its subsidiaries of any
securities of such person or any of its subsidiaries, (v) all
gains and losses resulting from the cumulative effect of any
accounting change pursuant to the application of Accounting
Principles Board Opinion No. 20, as amended, (vi) all other
extraordinary gains and losses, (vii) (A) all non-cash charges,
(B) up to $10 million of severance costs and (C) any other
restructuring reserves or charges (provided, however, that any
cash payments actually made with respect to the liabilities for
which such restructuring reserves or charges were created shall
be deducted from Consolidated Net Income in the period when
made), in each case, incurred by the Company or any of its Sub-
sidiaries in connection with the Merger, including, without
limitation, the divestiture of the Excluded Assets, (viii)
losses incurred by the Company and its Subsidiaries resulting
from earthquakes and (ix) with respect to the Company, all
deferred financing costs written off in connection with the
early extinguishment of any Indebtedness, shall each be
excluded.
"Consolidated Net Worth" means, with respect to any
person, the total stockholders' equity (exclusive of any Dis-
qualified Capital Stock) of such person and its subsidiaries
determined on a consolidated basis in accordance with GAAP.
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"Credit Agent" means, at any time, the then-acting
Administrative Agent as defined in and under the Credit Agree-
ment, which initially shall be Bankers Trust Company. The Com-
pany shall promptly notify the Trustee of any change in the
Credit Agent.
"Credit Agreement" means the Credit Agreement, dated
as of the Issue Date, by and among the Company, certain of its
subsidiaries, the Lenders referred to therein and Bankers Trust
Company, as administrative agent, as the same may be amended,
extended, renewed, restated, supplemented or otherwise modified
(in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to
time, and any agreement governing Indebtedness incurred to
refund or refinance the borrowings and commitments then out-
standing or permitted to be outstanding under such Credit
Agreement or such agreement. The Company shall promptly notify
the Trustee of any such refunding or refinancing of the Credit
Agreement.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bank-
ruptcy Law.
"Default" means any event which is, or after notice
or passage of time or both would be, an Event of Default.
"Disqualified Capital Stock" means, with respect to
any Capital Stock of such person or its subsidiaries that, by
its terms, by the terms of any agreement related thereto or by
the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of an event
or the passage of time would be, required to be redeemed or
repurchased by such person or its subsidiaries, including at
the option of the holder thereof, in whole or in part, or has,
or upon the happening of an event or passage of time would
have, a redemption or similar payment due, on or prior to the
Maturity Date of the Securities or any other Capital Stock of
such person or its subsidiaries designated as Disqualified Cap-
ital Stock by such person at the time of issuance; provided,
however, that if such Capital Stock is either (i) redeemable or
repurchasable solely at the option of such person or
(ii) issued to employees of the Company or its Subsidiaries or
to any plan for the benefit of such employees, such Capital
Stock shall not constitute Disqualified Capital Stock unless so
designated.
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"EBDIT" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such
period, plus, in each case to the extent deducted in computing
Consolidated Net Income of such person for such period (without
duplication) (i) provisions for income taxes or similar charges
recognized by such persons and its consolidated subsidiaries
accrued during such period, (ii) depreciation and amortization
expense of such person and its consolidated subsidiaries
accrued during such period (but only to the extent not included
in Fixed Charges), (iii) Fixed Charges of such person and its
consolidated subsidiaries for such period, (iv) LIFO charges
(credit) of such person and its consolidated subsidiaries for
such period, (v) the amount of any restructuring reserve or
charge recorded during such period in accordance with GAAP,
including any such reserve or charge related to the Merger, and
(vi) any other non-cash charges reducing Consolidated Net
Income for such period (excluding any such charge which
requires an accrual of or a cash reserve for cash charges for
any future period), less, without duplication, (i) non-cash
items increasing Consolidated Net Income of such person for
such period in each case determined in accordance with GAAP and
(ii) the amount of all cash payments made by such person or its
subsidiaries during such period to the extent that such cash
payment has been provided for in a restructuring reserve or
charge referred to in clause (v) above (and was not otherwise
deducted in the computation of Consolidated Net Income of such
person for such period).
"Event of Default" shall have the meaning provided in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated by
the Commission thereunder.
"Excluded Assets" means assets of the Company
required to be disposed of by applicable regulatory authorities
in connection with the Merger.
"Fixed Charges" means, with respect to any person,
for any period, the aggregate amount of (i) interest, whether
expensed or capitalized, paid, accrued or scheduled to be paid
or accrued during such period (except to the extent accrued in
a prior period) in respect of all Indebtedness of such person
and its consolidated subsidiaries (including (a) original issue
discount on any Indebtedness (including, (without duplication)
in the case of the Company, any original issue discount on the
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Securities but excluding amortization of debt issuance costs)
and (b) the interest portion of all deferred payment obliga-
tions, calculated in accordance with the effective interest
method, in each case to the extent attributable to such period
but excluding the amortization of debt issuance costs) and
(ii) dividend requirements on Capital Stock of such person and
its consolidated subsidiaries (whether in cash or otherwise
(except dividends payable in shares of Qualified Capital
Stock)) paid, accrued or scheduled to be paid or accrued during
such period (except to the extent accrued in a prior period)
and excluding items eliminated in consolidation. For purposes
of this definition, (a) interest on a Capitalized Lease Obliga-
tion shall be deemed to accrue at an interest rate reasonably
determined by the Board of Directors of such person (as evi-
denced by a Board Resolution) to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance
with GAAP, (b) interest on Indebtedness that is determined on a
fluctuating basis shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest of such Indebted-
ness in effect on the date Fixed Charges are being calculated,
(c) interest on Indebtedness that may optionally be determined
at an interest rate based upon a factor of a prime or similar
rate, a eurocurrency interbank offered rate, or other rate,
shall be deemed to have been based upon the rate actually cho-
sen, or, if none, then based upon such optional rate chosen as
the Company may designate, and (d) Fixed Charges shall be
increased or reduced by the net cost (including amortization of
discount) or benefit associated with Interest Swap Obligations
attributable to such period. For purposes of clause (ii)
above, dividend requirements shall be increased to an amount
representing the pretax earnings that would be required to
cover such dividend requirements; accordingly, the increased
amount shall be equal to a fraction, the numerator of which is
such dividend requirements and the denominator of which is one
(1) minus the applicable actual combined federal, state, local
and foreign income tax rate of such person and its subsidiaries
(expressed as a decimal), on a consolidated basis, for the fis-
cal year immediately preceding the date of the transaction giv-
ing rise to the need to calculate Fixed Charges.
"FFL" means Food 4 Less, Inc., a Delaware corpora-
tion, and its successors including, without limitation, Hold-
ings following the FFL Merger and New Holdings following the
Reincorporation Merger.
"FFL Merger" means the merger, prior to the Merger,
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"Food 4 Less" means Food 4 Less Supermarkets, Inc., a
Delaware corporation, and its successors, including, without
limitation, Ralphs Supermarkets, Inc. (to be renamed Ralph's
Grocery Company following the Merger).
"Foreign Exchange Agreement" means any foreign
exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect against fluctua-
tions in currency values.
"Forward Period" shall have the meaning provided in
the definition of "Operating Coverage Ratio" contained in this
Section 1.01.
"GAAP" means generally accepted accounting principles
as in effect in the United States of America as of the date of
this Indenture.
"Guarantee" means the guarantee of each Subsidiary
Guarantor set forth in Article Ten and any additional guarantee
of the Securities executed by any Subsidiary of the Company.
"Holder" or "Securityholder" means the person in
whose name a Security is registered on the Registrar's books.
"Holdings" means Food 4 Less Holdings, Inc., a Cali-
fornia corporation, and its successors including, without limi-
tation, New Holdings following the Reincorporation Merger.
"Holdings Discount Notes" means the 15.25% Senior
Discount Notes due 2004 of Holdings, as the same may be modi-
fied or amended from time to time and refinancings thereof.
"Indebtedness" means with respect to any person,
without duplication, (i) all liabilities, contingent or other-
wise, of such person (a) for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such
person or only to a portion thereof), (b) evidenced by bonds,
notes, debentures, drafts accepted or similar instruments or
letters of credit or representing the balance deferred and
unpaid of the purchase price of any property (other than any
such balance that represents an account payable or any other
monetary obligation to a trade creditor (whether or not an
Affiliate) created, incurred, assumed or guaranteed by such
person in the ordinary course of business of such person in
connection with obtaining goods, materials or services and due
within twelve months (or such longer period for payment as is
17
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customarily exended by such trade creditor) of the incurrence
thereof, which account is not overdue by more than 90 days,
according to the original terms of sale, unless such account
payable is being contested in good faith), or (c) for the pay-
ment of money relating to a Capitalized Lease Obligation;
(ii) the maximum fixed repurchase price of all Disqualified
Capital Stock of such person; (iii) reimbursement obligations
of such person with respect to letters of credit; (iv) obliga-
tions of such person with respect to Interest Swap Obligations
and Foreign Exchange Agreements; (v) all liabilities of others
of the kind described in the preceding clause (i), (ii), (iii)
or (iv) that such person has guaranteed or that is otherwise
its legal liability; and (vi) all obligations of others secured
by a Lien to which any of the properties or assets (including,
without limitation, leasehold interests and any other tangible
or intangible property rights) of such person are subject,
whether or not the obligations secured thereby shall have been
assumed by such person or shall otherwise be such person's
legal liability (provided that if the obligations so secured
have not been assumed by such person or are not otherwise such
person's legal liability, such obligations shall be deemed to
be in an amount equal to the fair market value of such proper-
ties or assets, as determined in good faith by the Board of
Directors of such person, which determination shall be evi-
denced by a Board Resolution). For purposes of the preceding
sentence, the "maximum fixed repurchase price" of any Disquali-
fied Capital Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Dis-
qualified Capital Stock as if such Disqualified 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 Disqualified Capital Stock (or any equity security for
which it may be exchanged or converted), such fair market value
shall be determined in good faith by the Board of Directors of
such person, which determination shall be evidenced by a Board
Resolution. For purposes of this Indenture, Indebtedness
incurred by any person that is a general partnership (other
than non-recourse Indebtedness) shall be deemed to have been
incurred by the general partners of such partnership pro rata
in accordance with their respective interests in the liabili-
ties of such partnership unless any such general partner shall,
in the reasonable determination of the Board of Directors of
the Company, be unable to satisfy its pro rata share of the
liabilities of the partnership, in which case the pro rata
share of any Indebtedness attributable to such partner shall be
deemed to be incurred at such time by the remaining general
18
-11-
partners on a pro rata basis in accordance with their
interests.
"Indenture" means this Indenture, as amended or sup-
plemented from time to time in accordance with the terms
hereof.
"Independent Financial Advisor" means a reputable
accounting, appraisal or nationally recognized investment bank-
ing firm that is, in the reasonable judgment of the Board of
Directors of the Company, qualified to perform the task for
which such firm has been engaged hereunder and disinterested
and independent with respect to the Company and its Affiliates.
"Interest Payment Date" means the stated maturity of
an installment of interest on the Securities.
"Interest Swap Obligation" means any obligation of
any person pursuant to any arrangement with any other person
whereby, directly or indirectly, such person is entitled to
receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a
stated notional amount in exchange for periodic payments made
by such person calculated by applying a fixed or floating rate
of interest on the same notional amount; provided that the term
"Interest Swap Obligation" shall also include interest rate
exchange, collar, cap, swap option or similar agreements pro-
viding interest rate protection.
"Investment" by any person in any other person means
any investment by such person in such other person, whether by
a purchase of assets, in any transaction or series of related
transactions, individually or in the aggregate, in an amount
greater than $5 million, share purchase, capital contribution,
loan, advance (other than reasonable loans and advances to
employees for moving and travel expenses, as salary advances,
or to permit the purchase of Qualified Capital Stock of the
Company and other similar customary expenses incurred, in each
case in the ordinary course of business consistent with past
practice) or similar credit extension constituting Indebtedness
of such other person, and any guarantee of Indebtedness of any
other person.
"Issue Date" means the date of original issuance of
the Securities under this Indenture.
19
-12-
"Legal Holiday" shall have the meaning provided in
Section 11.07.
"Letter of Credit Obligations" means Indebtedness of
the Company or any of its Subsidiaries with respect to letters
of credit issued pursuant to the Credit Agreement, and for pur-
poses of the definition of the term "Permitted Indebtedness,"
the aggregate principal amount of Indebtedness outstanding at
any time with respect thereto shall be deemed to consist of (a)
the aggregate maximum amount then available to be drawn under
all such letters of credit (the determination of such maximum
amount to assume compliance with all conditions for drawing),
and (b) the aggregate amount that has been paid by, and not
reimbursed to, the issuers under such letters of credit.
"Lien" means any mortgage, pledge, lien, encumbrance,
charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property, or a security
interest of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, any
option or other agreement to sell which is intended to consti-
tute or create a security interest, mortgage, pledge or lien,
and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction); provided that in no event shall an operating
lease be deemed to constitute a Lien under this Indenture.
"Maturity Date" means February 1, 2004.
"Merger" means (i) the merger of the Company into
Ralphs Supermarkets, Inc. (with Ralphs Supermarkets, Inc. sur-
viving such merger) pursuant to the Merger Agreement and (ii)
immediately following the merger described in clause (i) of
this definition, the merger of Ralphs Grocery Company into
Ralphs Supermarkets, Inc. (with Ralphs Supermarkets, Inc. sur-
viving such merger and changing its name to "Ralphs Grocery
Company" in connection with such merger).
"Merger Agreement" means the Agreement and Plan of
Merger, dated September 14, 1994, by and among Holdings, FFL,
Food 4 Less, Ralphs Supermarkets, Inc. and the stockholders of
Ralphs Supermarkets, Inc., as such agreement is amended and is
in effect on the Issue Date.
"Net Cash Proceeds" means the Net Proceeds of any
Asset Sale received in the form of cash or Cash Equivalents.
20
-13-
"Net Proceeds" means (a) in the case of any Asset
Sale or any issuance and sale by any person of Qualified Capi-
tal Stock, the aggregate net proceeds received by such person
after payment of expenses, taxes, commissions and the like
incurred in connection therewith (and, in the case of any Asset
Sale, net of the amount of cash applied to repay Indebtedness
secured by the asset involved in such Asset Sale), whether such
proceeds are in cash or in property (valued at the fair market
value thereof at the time of receipt, as determined with
respect to any Asset Sale resulting in Net Proceeds in excess
of $5 million in good faith by the Board of Directors of such
person, which determination shall be evidenced by a Board Reso-
lution) and (b) in the case of any conversion or exchange of
any outstanding Indebtedness or Disqualified Capital Stock of
such person for or into shares of Qualified Capital Stock of
the Company, the sum of (i) the fair market value of the pro-
ceeds received by the Company in connection with the issuance
of such Indebtedness or Disqualified Capital Stock on the date
of such issuance and (ii) any additional amount paid by the
holder to the Company upon such conversion or exchange.
"New Holdings" means Food 4 Less Holdings, Inc., a
Delaware corporation, and its successors.
"Obligations" means any principal, interest, penal-
ties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
"Officer" means, with respect to any person, the
Chairman of the Board, the President, any Vice President, the
Chief Financial Officer, the Controller, or the Secretary of
such person.
"Officers' Certificate" means, with respect to any
person, a certificate signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of
such person and otherwise complying with the requirements of
Sections 11.04 and 11.05.
"Operating Coverage Ratio" means, with respect to any
person, the ratio of (1) EBDIT of such person for the period
(the "Pro Forma Period") consisting of the most recent four
full fiscal quarters for which financial information in respect
thereof is available immediately prior to the date of the
transaction giving rise to the need to calculate the Operating
Coverage Ratio (the "Transaction Date") to (2) the aggregate
21
-14-
Fixed Charges of such person for the fiscal quarter in which
the Transaction Date occurs and the three fiscal quarters imme-
diately subsequent to such fiscal quarter (the "Forward
Period") reasonably anticipated by the Board of Directors of
such person to become due from time to time during such period.
For purposes of this definition, if the Transaction Date occurs
prior to the first anniversary of the Merger, "EBDIT" for the
Pro Forma Period shall be calculated, in the case of the Com-
pany, after giving effect on a pro forma basis to the Merger as
if it had occurred on the first day of the Pro Forma Period.
In addition to, but without duplication of, the foregoing, for
purposes of this definition, "EBDIT" shall be calculated after
giving effect (without duplication), on a pro forma basis for
the Pro Forma Period (but no longer), to (a) any Investment,
during the period commencing on the first day of the Pro Forma
Period to and including the Transaction Date (the "Reference
Period"), in any other person that, as a result of such Invest-
ment, becomes a subsidiary of such person, (b) the acquisition,
during the Reference Period (by merger, consolidation or pur-
chase of stock or assets) of any business or assets, which
acquisition is not prohibited by this Indenture, and (c) any
sales or other dispositions of assets (other than sales of
inventory in the ordinary course of business) occurring during
the Reference Period, in each case as if such incurrence,
Investment, repayment, acquisition or asset sale had occurred
on the first day of the Reference Period. In addition, for
purposes of this definition, "Fixed Charges" shall be calcu-
lated after giving effect (without duplication), on a pro forma
basis for the Forward Period, to any Indebtedness incurred or
repaid on or after the first day of the Forward Period and
prior to the Transaction Date. If such person or any of its
subsidiaries directly or indirectly guarantees any Indebtedness
of a third person, the Operating Coverage Ratio shall give
effect to the incurrence of such Indebtedness as if such person
or subsidiary had directly incurred such guaranteed
Indebtedness.
"operating lease" means any lease the obligations
under which do not constitute Capitalized Lease Obligations.
"Opinion of Counsel" means a written opinion from
legal counsel who is reasonably acceptable to the Trustee com-
plying with the requirements of Sections 11.04 and 11.05.
Unless otherwise required by the Trustee, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
22
-15-
"Pari Passu Indebtedness" means, with respect to the
Company or any Subsidiary Guarantor, Indebtedness of such per-
son which ranks pari passu in right of payment to the Securi-
ties or the Guarantee of such Subsidiary Guarantor, as the case
may be.
"Paying Agent" shall have the meaning provided in
Section 2.03, except that, for the purposes of Articles Two and
Eight and Sections 4.15 and 4.16, the Paying Agent shall not be
the Company or an Affiliate of the Company.
"Payment Restriction" means, with respect to a sub-
sidiary of any person, any encumbrance, restriction or limita-
tion, whether by operation of the terms of its charter or by
reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of
(i) such subsidiary to (a) pay dividends or make other distri-
butions on its Capital Stock or make payments on any obliga-
tion, liability or Indebtedness owed to such person or any
other subsidiary of such person, (b) make loans or advances to
such person or any other subsidiary of such person, or
(c) transfer any of its properties or assets to such person or
any other subsidiary of such person, or (ii) such person or any
other subsidiary of such person to receive or retain any such
(a) dividends, distributions or payments, (b) loans or
advances, or (c) transfer of properties or assets.
"Permitted Holder" means (i) Food 4 Less Equity Part-
ners, L.P., The Yucaipa Companies or any entity controlled
thereby or any of the partners thereof, (ii) Apollo Advisors,
L.P., Lion Advisors, L.P. or any entity controlled thereby or
any of the partners thereof, (iii) an employee benefit plan of
the Company, or any participant therein or any of its subsid-
iaries, (iv) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its
subsidiaries or (v) any Permitted Transferee of any of the
foregoing persons.
"Permitted Indebtedness" means (a) Indebtedness of
the Company and its Subsidiaries pursuant to (i) the Term Loans
in an aggregate principal amount at any time outstanding not to
exceed $750 million, less the aggregate amount of all principal
repayments thereunder pursuant to and in accordance with the
requirements of Section 4.16 subsequent to the Issue Date, and
(ii) the revolving credit facility under the Credit Agreement
(and the Company and each Subsidiary (to the extent it is not
23
-16-
an obligor) may guarantee such Indebtedness) in an aggregate
principal amount at any time outstanding not to exceed $325
million, less all permanent reductions thereunder pursuant to
and in accordance with the requirements of Section 4.16,
(b) Indebtedness of the Company or a Subsidiary Guarantor owed
to and held by the Company or a Subsidiary Guarantor,
(c) Indebtedness incurred by the Company or any Subsidiary in
connection with the purchase or improvement of property (real
or personal) or equipment or other capital expenditures in the
ordinary course of business (including for the purchase of
assets or stock of any retail grocery store or business) or
consisting of Capitalized Lease Obligations, provided that
(i) at the time of the incurrence thereof, such Indebtedness,
together with any other Indebtedness incurred during the most
recently completed four fiscal quarter period in reliance upon
this clause (c) does not exceed, in the aggregate, 3% of net
sales of the Company and its Subsidiaries during the most
recently completed four fiscal quarter period on a consolidated
basis (calculated on a pro forma basis if the date of incur-
rence is prior to the first anniversary of the Merger) and
(ii) such Indebtedness, together with all then outstanding
Indebtedness incurred in reliance upon this clause (c) does not
exceed, in the aggregate, 3% of the aggregate net sales of the
Company and its Subsidiaries during the most recently completed
twelve fiscal quarter period on a consolidated basis (calcu-
lated on a pro forma basis if the date of incurrence is prior
to the third anniversary of the Merger); (d) Indebtedness
incurred by the Company or any Subsidiary in connection with
capital expenditures in an aggregate principal amount not
exceeding $150 million, provided that such capital expenditures
relate solely to the integration of the operations of RSI, the
Company and their respective subsidiaries as described in the
Prospectus; (e) Indebtedness of the Company incurred under For-
eign Exchange Agreements and Interest Swap Obligations entered
into with respect to Indebtedness in a notional amount not
exceeding the aggregate principal amount of Indebtedness out-
standing or committed under the Credit Agreement at the date of
such incurrence and otherwise permitted to be outstanding pur-
suant to Section 4.12; (f) guarantees incurred in the ordinary
course of business, by the Company or a Subsidiary, of Indebt-
edness of any other person in the aggregate not to exceed $25
million at any time outstanding; (g) guarantees by the Company
or a Subsidiary Guarantor of Indebtedness incurred by a wholly-
owned Subsidiary Guarantor so long as the incurrence of such
Indebtedness incurred by such wholly-owned Subsidiary Guarantor
is permitted under the terms of this Indenture; (h) Refinancing
Indebtedness; (i) Indebtedness for letters of credit relating
24
-17-
to workers' compensation claims and self-insurance or similar
requirements in the ordinary course of business; (j) other
Indebtedness outstanding on the Issue Date (after giving effect
to the Merger); (k) Indebtedness arising from guarantees of
Indebtedness of the Company or any Subsidiary or other agree-
ments of the Company or a Subsidiary providing for indemnifica-
tion, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposi-
tion of any business, assets or Subsidiary, other than guaran-
tees of Indebtedness incurred by any person acquiring all or
any portion of such business, assets or Subsidiary for the pur-
pose of financing such acquisition; provided that the maximum
assumable liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds actually received by the
Company and its Subsidiaries in connection with such disposi-
tion; (l) obligations in respect of performance bonds and com-
pletion guarantees provided by the Company or any Subsidiary in
the ordinary course of business; and (m) additional Indebted-
ness of the Company and the Subsidiary Guarantors in an amount
not to exceed $200 million at any time outstanding.
"Permitted Investment" by any person means (i) any
Related Business Investment, (ii) Investments in securities not
constituting cash or Cash Equivalents and received in connec-
tion with an Asset Sale made pursuant to Section 4.16 or any
other disposition of assets not constituting an Asset Sale by
reason of the $500,000 threshold contained in the definition
thereof, (iii) cash and Cash Equivalents, (iv) Investments
existing on the Issue Date, (v) Investments specifically per-
mitted by and made in accordance with Section 4.11,
(vi) Investments by Subsidiary Guarantors in other Subsidiary
Guarantors and Investments by Subsidiaries which are not Sub-
sidiary Guarantors in other Subsidiaries which are not Subsid-
iary Guarantors and (vii) additional Investments in an aggre-
gate amount not exceeding $5 million.
"Permitted Liens" shall mean (i) Liens for taxes,
assessments, and governmental charges or claims not yet due or
which are being contested in good faith by appropriate proceed-
ings promptly instituted and diligently conducted and if a
reserve or other appropriate provision, if any, as shall be
required in conformity wity GAAP shall have been made thereof;
(ii) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen, or other like
Liens arising in the ordinary course of business, deposits made
to obtain the release of such Liens, and with respect to
amounts not yet delinquent for a period of more than 60 days or
25
-18-
being contested in good faith by appropriate process of law,
and for which a reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made; (iii) Liens
incurred or pledges or deposits made in the ordinary course of
business to secure obligations under workers' compensation,
unemployment insurance and other types of social security or
similar legislation; (iv) Liens incurred or deposits made to
secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government contracts,
performance and return of money bonds and other obligations of
a like nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(v) easements, rights-of-way, zoning or other restrictions,
minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect
with the business of the Company or any of its Subsidiaries
incurred in the ordinary course of business; (vi) Liens upon
specific items of inventory or other goods and proceeds of any
person securing such person's obligations in respect of bank-
ers' acceptances issued or created for the account of such per-
son to facilitate the purchase, shipment or storage of such
inventory or other goods in the ordinary course of business;
(vii) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents and other property
relating to such letters of credit and the products and pro-
ceeds thereof; (viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
nondelinquent customs duties in connection with the importation
of goods; (ix) judgment and attachment Liens not giving rise to
a Default or Event of Default; (x) leases or subleases granted
to others not interfering in any material respect with the
business of the Company or any Subsidiary; (xi) Liens encumber-
ing customary initial deposits and margin deposits, and other
Liens incurred in the ordinary course of business that are
within the general parameters customary in the industry, in
each case securing Indebtedness under Interest Swap Obligations
and Foreign Exchange Agreements and forward contracts, option
futures contracts, futures options or similar agreements or
arrangements designed to protect the Company or any Subsidiary
from fluctuations in the price of commodities; (xii) Liens
encumbering deposits made in the ordinary course of business to
secure nondelinquent obligations arising from statutory, regu-
latory, contractual or warranty requirements of the Company or
its Subsidiaries for which a reserve or other appropriate pro-
vision, if any, as shall be required by GAAP shall have been
made; (xiii) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by the Company
26
-19-
or any Subsidiary in the ordinary course of business in accor-
dance with past practices; (xiv) any interest or title of a
lessor in the property subject to any lease, whether character-
ized as capitalized or operating other than any such interest
or title resulting from or arising out of a default by the Com-
pany or any Subsidiary of its obligations under such lease;
(xv) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases of per-
sonal property that are otherwise permitted under this Inden-
ture and under which the Company or any Subsidiary is lessee;
and (xvi) additional Liens securing Indebtedness in an aggre-
gate principal amount at any one time outstanding not exceeding
the sum of (i) $25 million and (ii) 10% of the aggregate Con-
solidated Net Income of the Company earned subsequent to the
Issue Date and on or prior to such time.
"Permitted Payments" means (i) any payment by the
Company or any Subsidiary to The Yucaipa Companies or the prin-
cipals or any Affiliates thereof for consulting, management,
investment banking or similar advisory services pursuant to
that certain Consulting Agreement, dated as of the Issue Date,
between the Company, New Holdings and The Yucaipa Companies,
(as such Consulting Agreement may be amended or replaced, so
long as any amounts paid under any amended or replacement
agreement do not exceed the amounts payable under such Consult-
ing Agreement as in effect on the Issue Date), (ii) any payment
by the Company or any Subsidiary pursuant to the Amended and
Restated Tax Sharing Agreement, dated as of June 17, 1991,
between the Company and certain Subsidiaries, as such Tax Shar-
ing Agreement may be amended from time to time, so long as the
payment thereunder by the Company and its Subsidiaries shall
not exceed the amount of taxes the Company would be required to
pay if it were the filing person for all applicable taxes,
(iii) any payment by the Company or any Subsidiary pursuant to
the Transfer and Assumption Agreement, dated as of June 23,
1989, between the Company and Holdings, as in effect on the
Issue Date, (iv) any payment by the Company or any Subsidiary
(a) in connection with repurchases of outstanding shares of the
Company's or New Holding's Common Stock following the death,
disability or termination of employment of management stock-
holders, and (b) of amounts required to be paid by New Hold-
ings, the Company or any of its Subsidiaries to participants in
employee benefit plans upon termination of employment by such
participants, as provided in the documents related thereto, in
an aggregate amount (for both clauses (a) and (b)) not to
exceed $10 million in any Yearly Period (provided that any
unused amounts may be carried over to any subsequent Yearly
27
-20-
Period subject to a maximum amount of $20 million in any Yearly
Period), (v) from and after June 30, 1998, payments of cash
dividends to New Holdings in an amount sufficient to enable New
Holdings to make payments of interest required to be made in
respect of the Holdings Discount Notes in accordance with the
terms thereof in effect on the Issue Date, (vi) from and after
February , 2000, payments of cash dividends to New Holdings
in an amount sufficient to enable New Holdings to make payments
of interest required to be made in respect of the Seller Deben-
tures in accordance with the terms thereof in effect on the
Issue Date and (vii) dividends or other payments to New Hold-
ings sufficient to enable New Holdings to perform accounting,
legal, corporate reporting and administrative functions in the
ordinary course of business or to pay required fees and
expenses in connection with the Merger, the FFL Merger, the
Reincorporation Merger and the registration under applicable
laws and regulations of its debt or equity securities.
"Permitted Transferees" means, with respect to any
person, (i) any Affiliate of such person, (ii) the heirs, exec-
utors, administrators, testamentary trustees, legatees or bene-
ficiaries of any such person, (iii) a trust, the beneficiaries
of which, or a corporation or partnership, the stockholders or
general or limited partners of which, include only such person
or his or her spouse or lineal descendants, in each case to
whom such person has transferred the beneficial ownership of
any securities of the Company, (iv) any investment account
whose investment managers and investment advisors consist
solely of such person and/or Permitted Transferees of such per-
son and (v) any investment fund and investment entity that is a
subsidiary of such person or a Permitted Transferee of such
person.
"person" means any individual, corporation, partner-
ship, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
"Plan of Liquidation" means, with respect to any per-
son, a plan that provides for, contemplates or the effectuation
of which is preceded or accompanied by (whether or not substan-
tially contemporaneously, in phases or otherwise) (i) the sale,
lease, conveyance or other disposition of all or substantially
all of the assets of such person otherwise than as an entirety
or substantially as an entirety and (ii) the distribution of
all or substantially all of the proceeds of such sale, lease,
conveyance or other disposition and all or substantially all of
28
-21-
the remaining assets of such person to holders of Capital Stock
of such person.
"Preferred Stock" means, with respect to any person,
Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends or distribu-
tions, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such person, over
shares of Capital Stock of any other class of such person.
"principal" of any Indebtedness (including the Secu-
rities) means the principal of such Indebtedness plus the pre-
mium, if any, on such Indebtedness.
"pro forma" means, with respect to any calculation
made or required to be made pursuant to the terms of this
Indenture, a calculation in accordance with Article 11 of Regu-
lation S-X under the Securities Act of 1933, as amended, as
interpreted by the Company's chief financial officer or Board
of Directors in consultation with its independent certified
public accountants.
"Public Equity Offering" means an undewritten public
offering of Common Stock of the Company or New Holdings pursu-
ant to a registration statement filed with the Commission in
accordance with the Securities Act which public equity offering
results in gross proceeds to the Company or New Holdings, as
the case may be, of not less than $20,000,000; provided, how-
ever, that in the case of a Public Equity Offering by New Hold-
ings, New Holdings contributes to the capital of the Company
net cash proceeds in an amount sufficient to redeem the Securi-
ties called for redemption in accordance with the terms
thereof.
"Qualified Capital Stock" means, with respect to any
person, any Capital Stock of such person that is not Disquali-
fied Capital Stock.
"Record Date" means the Record Dates specified in the
Securities; provided that if any such date is a Legal Holiday,
the Record Date shall be the first day immediately preceding
such specified day that is not a Legal Holiday.
"Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemp-
tion pursuant to this Indenture and Paragraph 5 of the Securi-
ties annexed hereto as Exhibit A.
29
-22-
"Redemption Price," when used with respect to any
Security to be redeemed, means the price fixed for such redemp-
tion pursuant to this Indenture and Paragraph 5 of the Securi-
ties annexed hereto as Exhibit A.
"Reference Date" shall have the meaning provided in
Section 4.03.
"Reference Period" shall have the meaning provided in
the definition of "Operating Coverage Ratio" contained in this
Section 1.01.
"Refinancing Indebtedness" means, with respect to any
person, Indebtedness of such person issued in exchange for, or
the proceeds from the issuance and sale or disbursement of
which are used to substantially concurrently repay, redeem,
refund, refinance, discharge or otherwise retire for value, in
whole or in part (collectively, "repay"), or constituting an
amendment, modification or supplement to, or a deferral or
renewal of (collectively, an "amendment"), any Indebtedness of
such person existing on the Issue Date or Indebtedness (other
than Permitted Indebtedness, except Permitted Indebtedness
incurred pursuant to clauses (a), (c), (d), (h) and (j) of the
definition thereof) incurred in accordance with this Indenture
(a) in a principal amount (or, if such Refinancing Indebtedness
provides for an amount less than the principal amount thereof
to be due and payable upon the acceleration thereof, with an
original issue price) not in excess of (without duplication)
(i) the principal amount or the original issue price, as the
case may be, of the Indebtedness so refinanced (or, if such
Refinancing Indebtedness refinances Indebtedness under a
revolving credit facility or other agreement providing a com-
mitment for subsequent borrowings, with a maximum commitment
not to exceed the maximum commitment under such revolving
credit facility or other agreement) plus (ii) unpaid accrued
interest on such Indebtedness plus (iii) premiums, penalties,
fees and expenses actually incurred by such person in connec-
tion with the repayment or amendment thereof and (b) with
respect to Refinancing Indebtedness that repays or constitutes
an amendment to Subordinated Indebtedness, such Refinancing
Indebtedness (x) shall not have any fixed mandatory redemption
or sinking fund requirement in an amount greater than or at a
time prior to the amounts and times specified in such repaid or
amended Subordinated Indebtedness, except to the extent that
any such requirement applies on a date after the Maturity Date
and (y) shall contain subordination and default provisions no
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less favorable in any material respect to Holders than those
contained in such repaid or amended Subordinated Indebtedness.
"Registrar" shall have the meaning provided in
Section 2.03.
"Reincorporation Merger" means the merger, prior to
the Merger of Holdings with and into New Holdings.
"Related Business Investment" means (i) any Invest-
ment by a person in any other person a majority of whose reve-
nues are derived from the operation of one or more retail gro-
cery stores or supermarkets or any other line of business
engaged in by the Company or any of its Subsidiaries as of the
Issue Date; (ii) any Investment by such person in any coopera-
tive or other supplier, including, without limitation, any
joint venture which is intended to supply any product or ser-
vice useful to the business of the Company and its Subsidiaries
as it is conducted as of the Issue Date and as such business
may thereafter evolve or change; and (iii) any capital expendi-
ture or Investment (without regard to the $5 million threshold
in the definition thereof), in each case reasonably related to
the business of the Company and its Subsidiaries as it is con-
ducted as of the Issue Date and as such business may thereafter
evolve or change.
"Representative" means the indenture trustee or other
trustee, agent or representative for any Senior Indebtedness;
provided that in no event shall United States Trust Company of
New York, in its capacities as Trustee, Registrar, co-Registrar
or Paying Agent, serve as Representative.
"Restricted Debt Prepayment" means any purchase,
redemption, defeasance (including, but not limited to, in-sub-
stance or legal defeasance) or other acquisition or retirement
for value, directly or indirectly, by the Company or a Subsid-
iary, prior to the scheduled maturity or prior to any scheduled
repayment of principal or sinking fund payment, as the case may
be, in respect of Subordinated Indebtedness.
"Restricted Payment" means any (i) Stock Payment,
(ii) Investment (other than a Permitted Investment) or
(iii) Restricted Debt Prepayment.
"RSI" means Ralphs Supermarkets Inc., a Delaware
corporation.
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"Securities" means the Company's _____% Senior Notes
due 2004, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to
this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission pro-
mulgated thereunder.
"Seller Debentures" means the 13% Senior Subordinated
Pay-in-Kind Debentures of New Holdings, as the same may be mod-
ified or amended from time to time and future refinancings
thereof.
"Senior Subordinated Note Indentures" means,
together, (i) the indenture dated as of __________ 1995 between
the Company, the Subsidiary Guarantors and the United States
Trust Company of New York, as trustee, pursuant to which the
Company issued $450,000,000 of ____% Senior Subordinated notes
due 2005, and (ii) the indenture dated as of __________ 1995
between the Company, the Subsidiary Guarantors and the United
States Trust Company of New York, as trustee, pursuant to which
the Company issued $145,000,000 of ____% Senior Subordinated
notes due 2005.
"Significant Stockholder" means, with respect to any
person, any other person who is the beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act) of more than
10% of any class of equity securities of such person that are
entitled to vote on a regular basis for the election of direc-
tors of such person.
"Significant Subsidiary" means each subsidiary of the
Company that is either (a) a "significant subsidiary" as
defined in Rule 1-02(v) of Regulation S-X under the Securities
Act and the Exchange Act (as such regulation is in effect on
the date hereof) or (b) material to the financial condition or
results of operations of the Company and its Subsidiaries taken
as a whole.
"Stock Payment" means, with respect to any person,
(a) the declaration or payment by such person, either in cash
or in property, of any dividend on (except, in the case of the
Company, dividends payable solely in Qualified Capital Stock of
the Company), or the making by such person or any of its sub-
sidiaries of any other distribution in respect of, such per-
son's Qualified Capital Stock or any warrants, rights or
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options to purchase or acquire shares of any class of such Cap-
ital Stock (other than exchangeable or convertible Indebtedness
of such person), or (b) the redemption, repurchase, retirement
or other acquisition for value by such person or any of its
subsidiaries, directly or indirectly, of such person's Quali-
fied Capital Stock (and, in the case of a Subsidiary, Qualified
Capital Stock of the Company) or any warrants, rights or
options to purchase or acquire shares of any class of such Cap-
ital Stock (other than exchangeable or convertible Indebtedness
of such person), other than, in the case of the Company,
through the issuance in exchange therefor solely of Qualified
Capital Stock of the Company; provided, however, that in the
case of a Subsidiary, the term "Stock Payment" shall not
include any such payment with respect to its Capital Stock or
warrants, rights or options to purchase or acquire shares of
any class of its Capital Stock that are owned solely by the
Company or a wholly owned Subsidiary.
"Subordinated Indebtedness" means, with respect to
the Company or any Subsidiary Guarantor, Indebtedness of such
person which is subordinated in right of payment to the Securi-
ties or the Guarantee of such Subsidiary Guarantor, as the case
may be.
"subsidiary" of any person means (i) a corporation a
majority of whose Capital Stock with voting power, under ordi-
nary circumstances, to elect directors is, at the date of
determination, directly or indirectly, owned by such person, by
one or more subsidiaries of such person or by such person and
one or more subsidiaries of such person or (ii) a partnership
in which such person or a subsidiary of such person is, at the
date of determination, a general partner of such partnership,
but only if such person or its subsidiary is entitled to
receive more than fifty percent of the assets of such partner-
ship upon its dissolution, or (iii) any other person (other
than a corporation or a partnership) in which such person, a
subsidiary of such person or such person and one or more sub-
sidiaries of such person, directly or indirectly, at the date
of determination, has (x) at least a majority ownership inter-
est or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such
person.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantor" means (i) each of Alpha Beta
Company, Bay Area Warehouse Stores, Inc., Bell Markets, Inc.,
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Cala Co., Cala Foods, Inc., Falley's Inc., Food 4 Less of Cali-
fornia, Inc., Food 4 Less Merchandising, Inc., Food 4 Less GM,
Inc. and Food 4 Less of Southern California, Inc., (ii) upon
consummation of the Merger, Crawford Stores, Inc., (iii) each
of the Company's Subsidiaries which becomes a guarantor of the
Securities in compliance with the provisions set forth in Section
4.17, and (iv) each of the Company's Subsidiaries execut
ing a supplemental indenture in which such Subsidiary agrees to
be bound by the terms of this Indenture.
"Term Loans" means the term loan facility under the
Credit Agreement.
"The Yucaipa Companies" means The Yucaipa Companies,
a California general partnership.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code Secs. 77aaa-77bbbb), as amended, as in effect on the date of
the execution of this Indenture until such time as this Inden-
ture is qualified under the TIA, and thereafter as in effect on
the date on which this Indenture is qualified under the TIA,
except as otherwise provided in Section 9.03.
"Transaction Date" shall have the meaning provided in
the definition of "Operating Coverage Ratio" contained in this
Section 1.01.
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such
successor.
"Trust Officer" means any officer of the Trustee
assigned by the Trustee to administer its corporate trust
matters.
"U.S. Government Obligations" shall have the meaning
provided in Section 8.02.
"U.S. Legal Tender" means such coin or currency of
the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
"Yearly Period" means each fiscal year of the Com-
pany; provided that the first Yearly Period shall begin on the
Issue Date and shall end on January 28, 1996.
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SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a
part of, this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Com-
pany, any Subsidiary Guarantor, or any other obligor on the
Securities or the Guarantees.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule and not otherwise defined herein have
the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular;
(5) provisions apply to successive events and trans-
actions; and
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(6) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities, the notation thereon relating to the
Guarantee and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A. The Securities may
have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company and the Trustee shall
approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of
its authentication.
The terms and provisions contained in the Securities
and the Guarantee shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions
and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secre-
tary, shall sign, or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall
attest to, the Securities for the Company by manual or fac-
simile signature. Each Subsidiary Guarantor shall execute the
Guarantee in the manner set forth in Section 10.08.
If an Officer whose signature is on a Security was an
Officer at the time of such execution but no longer holds that
office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Security. The signature shall be
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conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for origi-
nal issue in the aggregate principal amount of up to
$575,000,000 upon a written order of the Company in the form of
an Officers' Certificate. The Officers' Certificate shall
specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated. The
aggregate principal amount of Securities outstanding at any
time may not exceed $575,000,000, except as provided in Section
2.07. Upon the written order of the Company in the form of an
Officers' Certificate, the Trustee shall authenticate Securi-
ties in substitution of Securities originally issued to reflect
any name change of the Company.
The Trustee may appoint an authenticating agent rea-
sonably acceptable to the Company to authenticate Securities.
Unless otherwise provided in the appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticat-
ing agent has the same rights as an Agent to deal with the Com-
pany and Affiliates of the Company.
The Securities shall be issuable only in registered
form without coupons in denominations of $1,000 and integral
multiples thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where (a) Secu-
rities may be presented or surrendered for registration of
transfer or for exchange ("Registrar"), (b) Securities may be
presented or surrendered for payment ("Paying Agent") and
(c) notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company
may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surren-
dered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such des-
ignation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Bor-
ough of Manhattan, The City of New York, for such purposes.
The Company may act as its own Registrar or Paying Agent except
that for the purposes of Articles Three and Eight and Sections
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4.15 and 4.16, neither the Company nor any Affiliate of the
Company shall act as Paying Agent. The Registrar shall keep a
register of the Securities and of their transfer and exchange.
The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reason-
ably acceptable to the Trustee. The term "Paying Agent"
includes any additional paying agent. The Company initially
appoints the Trustee as Registrar and Paying Agent until such
time as the Trustee has resigned or a successor has been
appointed.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee, in
advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of Holders or the Trustee
all assets held by the Paying Agent for the payment of princi-
pal of, or interest on, the Securities (whether such assets
have been distributed to it by the Company or any other obligor
on the Securities), and shall notify the Trustee of any Default
by the Company (or any other obligor on the Securities) in mak
ing any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate such assets and hold them as a
separate trust fund. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any
time during the continuance of any payment Default, upon writ-
ten request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee
of all assets that shall have been delivered by the Company to
the Paying Agent, the Paying Agent shall have no further lia-
bility for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders. If the Trustee is not the
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Registrar, the Company shall furnish to the Trustee on or
before each Interest Payment Date and at such other times as
the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names
and addresses of Holders, which list may be conclusively relied
upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
When Securities are presented to the Registrar or a
co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal princi-
pal amount of Securities of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transac-
tion are met; provided, however, that the Securities surren-
dered for transfer or exchange shall be duly endorsed or accom-
panied by a written instrument of transfer in form satisfactory
to the Company and the Registrar or co-Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writ-
ing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Secu-
rities at the Registrar's or co-Registrar's request. No ser-
vice charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum suffi-
cient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer
taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.02, 2.07, 2.10, 3.06, 4.15,
4.16 or 9.05). The Registrar or co-Registrar shall not be
required to register the transfer of or exchange of any Secu-
rity (i) during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of Securi-
ties and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee
or if the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security
if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the
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Company and the Trustee, to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Secu-
rity is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obliga-
tion of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Secu-
rities that have been authenticated by the Trustee except those
cancelled by it, those delivered to it for cancellation and
those described in this Section as not outstanding. A Security
does not cease to be outstanding because the Company, the Sub-
sidiary Guarantors or any of their respective Affiliates holds
the Security.
If a Security is replaced pursuant to Section 2.07
(other than a mutilated Security surrendered for replacement),
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursu-
ant to Section 2.07.
If on a Redemption Date or the Maturity Date the Pay-
ing Agent (other than the Company or a Subsidiary) holds U.S.
Legal Tender or U.S. Government Obligations sufficient to pay
all of the principal and interest due on the Securities payable
on that date, then on and after that date such Securities cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company, the Subsid-
iary Guarantors or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the Trustee
knows or has reason to know are so owned shall be disregarded.
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SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate tem-
porary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securi-
ties. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else,
shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.07,
the Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
If the Company or any Subsidiary Guarantor shall acquire any of
the Securities, such acquisition shall not operate as a redemp-
tion or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on
the Securities, it shall, unless the Trustee fixes another
record date pursuant to Section 6.10, pay the defaulted inter-
est, plus (to the extent lawful) any interest payable on the
defaulted interest, to the persons who are Holders on a subse-
quent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the pay-
ment of defaulted interest or the next succeeding Business Day
if such date is not a Business Day. At least 15 days before
the subsequent special record date, the Company shall mail to
each Holder, with a copy to the Trustee, a notice that states
the subsequent special record date, the payment date and the
amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a
"CUSIP" number, and if so, the Trustee shall use the CUSIP num-
ber in notices of redemption or exchange as a convenience to
Holders; provided that any such notice may state that no repre-
sentation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification
numbers printed on the Securities.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant
to Paragraph 5 of the Securities, it shall notify the Trustee,
with a copy to the Credit Agent, of the Redemption Date and the
principal amount of Securities to be redeemed and whether it
wants the Trustee to give notice of redemption to the Holders
at least 30 days (unless a shorter notice shall be satisfactory
to the Trustee) but not more than 60 days before the Redemption
Date. In order to effect a redemption pursuant to Paragraph 5
of the Securities with the proceeds of a Public Equity Offer-
ing, the Company shall send the redemption notice not later
than 60 days after the consummation of such Public Equity
Offering. Any such notice may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities to Be Redeemed.
If fewer than all of the Securities are to be
redeemed, the Trustee shall select the Securities to be
redeemed pro rata by lot or by any other method that the Trus-
tee considers fair and appropriate and, if such Securities are
listed on any securities exchange, by a method that complies
with the requirements of such exchange; provided, however, that
any redemption pursuant to Paragraph 5 of the Securities with
the proceeds of a Public Equity Offering shall be made on a pro
rata basis.
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The Trustee shall make the selection from the Securi-
ties outstanding and not previously called for redemption and
shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security
selected for partial redemption, the principal amount thereof
to be redeemed. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or integral multiples thereof) of the
principal amount of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Secu-
rities called for redemption also apply to portions of Securi-
ties called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption
by first class mail to each Holder whose Securities are to be
redeemed at such Holder's registered address, with a copy to
the Credit Agent. In order to effect a redemption pursuant to
Paragraph 5 of the Securities with the proceeds of a Public
Equity Offering, the Company shall send the redemption notice
not later than 60 days after the consummation of such Public
Equity Offering. At the Company's request, the Trustee shall
give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify
the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(5) that, unless the Company defaults in making the
redemption payment interest on Securities called for
redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Securities
redeemed;
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(6) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the Redemption Date, and upon
surrender of such Security, a new Security or Securities
in aggregate principal amount equal to the unredeemed por-
tion thereof will be issued; and
(7) if fewer than all the Securities are to be
redeemed, the identification of the particular Securities
(or portion thereof) to be redeemed, as well as the aggre-
gate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding
after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance
with Section 3.03, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price.
Upon surrender to the Trustee or Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price.
Securities that are redeemed by the Company or that are pur-
chased by the Company pursuant to a Net Proceeds Offer as
described in Section 4.16 or pursuant to a Change of Control
Offer as described in Section 4.15 or that are otherwise
acquired by the Company will be surrendered to the Trustee for
cancellation.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall
deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price of all Securities to be redeemed on
that date (other than Securities or portions thereof called for
redemption on that date which have been delivered by the Com-
pany to the Trustee for cancellation). The Paying Agent shall
promptly return to the Company any U.S. Legal Tender so depos-
ited which is not required for that purpose upon the written
request of the Company, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven hereof.
If the Company complies with the preceding paragraph
then, unless the Company defaults in the payment of such
Redemption Price, interest on the Securities to be redeemed
will cease to accrue on and after the applicable Redemption
Date, whether or not such Securities are presented for payment.
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SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed
in part, the Trustee shall authenticate for the Holder a new
Security or Securities equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest
on the Securities on the dates and in the manner provided in
the Securities. An installment of principal of or interest on
the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal
at the rate borne by the Securities and it shall pay interest
on overdue installments of interest at the same rate, to the
extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhat-
tan, The City of New York, the office or agency required under
Section 2.03 hereof. The Company shall give prior notice to
the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presenta-
tions, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 11.02.
SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall cause each of its
Subsidiaries not to, directly or indirectly, make any
Restricted Payment if, at the time of such proposed Restricted
Payment, or after giving effect thereto, (a) a Default or an
Event of Default shall have occurred and be continuing, (b) the
45
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Company could not incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.12 or
(c) the aggregate amount expended for all Restricted Payments,
including such proposed Restricted Payment (the amount of any
Restricted Payment, if other than cash, to be the fair market
value thereof at the date of payment, as determined in good
faith by the Board of Directors of the Company), subsequent to
the Issue Date, shall exceed the sum of (i) 50% of the aggre-
gate Consolidated Net Income (or if such Consolidated Net
Income is a loss, minus 100% of such loss) of the Company
earned subsequent to the Issue Date and on or prior to the date
of the proposed Restricted Payment (the "Reference Date"), plus
(ii) 100% of the aggregate Net Proceeds received by the Company
from any person (other than a Subsidiary of the Company) from
the issuance and sale (including upon exchange or conversion
for other securities of the Company) subsequent to the Issue
Date and on or prior to the Reference Date of Qualified Capital
Stock (excluding (A) Qualified Capital Stock paid as a dividend
on any Capital Stock or as interest on any Indebtedness and
(B) any Net Proceeds from issuances and sales financed directly
or indirectly using funds borrowed from the Company or any Sub-
sidiary, until and to the extent such borrowing is repaid),
plus (iii) 100% of the aggregate net cash proceeds received by
the Company as capital contributions to the Company after the
Issue Date, plus (iv) $25 million.
Notwithstanding the foregoing, if no Default or Event
of Default shall have occurred and be continuing as a conse-
quence thereof, the provisions set forth in the immediately
preceding paragraph will not prevent (1) the payment of any
dividend within 60 days after the date of its declaration if
the dividend would have been permitted on the date of declara-
tion, (2) the acquisition of any shares of Capital Stock of the
Company or the repurchase, redemption or other repayment of any
Subordinated Indebtedness in exchange for or solely out of the
proceeds of the substantially concurrent sale (other than to a
Subsidiary) of shares of Qualified Capital Stock of the Com-
pany, (3) the repurchase, redemption or other repayment of any
Subordinated Indebtedness in exchange for or solely out of the
proceeds of the substantially concurrent sale (other than to a
Subsidiary) of Subordinated Indebtedness of the Company with an
Average Life equal to or greater than the then remaining Aver-
age Life of the Subordinated Indebtedness repurchased, redeemed
or repaid, and (4) Permitted Payments; provided, however, that
the declaration of each dividend paid in accordance with clause
(1) above, each acquisition, repurchase, redemption or other
repayment made in accordance with, or of the type set forth in,
46
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clause (2) above, and each payment described in clause (iii),
(iv), (v), (vi) or (vii) of the definition of the term "Permit-
ted Payments" shall each be counted for purposes of computing
amounts expended pursuant to subclause (c) in the immediately
preceding paragraph, and no amounts expended pursuant to clause
(3) above or pursuant to clauses (i) or (ii) of the definition
of the term "Permitted Payments" shall be so counted; provided
further that to the extent any payments made pursuant to clause
(vii) of the definition of the term "Permitted Payments" are
deducted for purposes of computing the Consolidated Net Income
of the Company, such payments shall not be counted for purposes
of computing amounts expended as Restricted Payments pursuant
to subclause (c) in the immediately preceding paragraph.
Prior to making any Restricted Payment under the
first paragraph of this Section 4.03, the Company shall deliver
to the Trustee an Officers' Certificate setting forth the com-
putation by which the amount available for Restricted Payments
pursuant to such paragraph was determined. The Trustee shall
have no duty or responsibility to determine the accuracy or
correctness of this computation and shall be fully protected in
relying on such Officers' Certificate.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate exis-
tence and the corporate or other existence of each of its Sig-
nificant Subsidiaries in accordance with the respective organi-
zational documents of each such Significant Subsidiary and the
rights (charter and statutory) and franchises of the Company
and each such Significant Subsidiary; provided, however, that
the Company shall not be required to preserve, with respect to
itself, any right or franchise, and with respect to any of its
Significant Subsidiaries, any such existence, right or fran-
chise, if the Board of Directors of the Company or such Sig-
nificant Subsidiary, as the case may be, shall determine that
the preservation thereof is no longer desirable in the conduct
of the business of the Company or any such Significant
Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges (including
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withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of it or any of its Sub-
sidiaries; 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 if either (a) the
amount, applicability or validity thereof is being contested in
good faith by appropriate proceedings and an adequate reserve
has been established therefor to the extent required by GAAP or
(b) the failure to make such payment or effect such discharge
(together with all other such failures) would not have a mate-
rial adverse effect on the financial condition or results or
operations of the Company and its Subsidiaries taken as a
whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or
useful to the conduct of its business or the business of any of
its Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary equip-
ment and shall cause to be made all necessary repairs, renew-
als, replacements, betterments and improvements thereof, all as
in its judgment may be necessary, so that the business carried
on in connection therewith may be properly and advantageously
conducted at all times unless the failure to so maintain such
properties (together with all other such failures) would not
have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries taken
as a whole; provided, however, that nothing in this
Section 4.06 shall prevent the Company or any Subsidiary from
discontinuing the operation or maintenance of any of such prop-
erties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business,
(ii) in the good faith judgment of the Board of Directors of
the Company or the Subsidiary concerned, or of the senior
officers of the Company or such Subsidiary, as the case may be,
desirable in the conduct of the business of the Company or such
Subsidiary, as the case may be, or (iii) is otherwise permitted
by this Indenture.
(b) The Company shall provide or cause to be pro-
vided, for itself and each of its Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage
of the kinds that, in the reasonable, good faith opinion of the
48
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Company are adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent man-
ner, with reputable insurers or with the government of the
United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices
of the Company or the applicable Subsidiary or (ii) customary,
in the reasonable, good faith opinion of the Company, for cor-
porations similarly situated in the industry, unless the fail-
ure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and
its Subsidiaries, taken as a whole.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within
120 days after the end of the Company's fiscal year an Offic-
ers' Certificate stating that a review of its activities and
the activities of its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Offic-
ers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such cer-
tificate, that to the best of his knowledge the Company during
such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no event of default
in respect of any payment obligation under the Credit Agree-
ment, Default or Event of Default occurred during such year or,
if such signers do know of such an event of default, Default or
Event of Default, the certificate shall describe the event of
default, Default or Event of Default and its status with par-
ticularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which
it fixes its fiscal year end.
(b) So long as not contrary to the then current rec-
ommendations of the American Institute of Certified Public
Accountants, the Company shall deliver to the Trustee within
120 days after the end of each fiscal year a written statement
by the Company's independent certified public accountants stat-
ing (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate
to accounting matters, and (B) whether, in connection with
their audit examination, any Default has come to their atten-
tion and if such a Default has come to their attention, speci-
fying the nature and period of existence thereof.
49
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(c) The Company shall deliver to the Trustee, forth-
with upon becoming aware, and in any event within 5 days after
the occurrence, of (i) any Default or Event of Default in the
performance of any covenant, agreement or condition contained
in this Indenture; (ii) any event of default in respect of any
payment obligation under the Credit Agreement or any event of
default under any other bond, debenture, note, or other evi-
dence of Indebtedness of the Company or any of its Subsidiar-
ies, or under any mortgage, indenture or other instrument if
such event of default related to Indebtedness at any time in an
aggregate principal amount exceeding $20 million, an Officers'
Certificate specifying with particularity such event.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any gov-
ernmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect
of the conduct of their respective businesses and the ownership
of their respective properties, except such as are being con-
tested in good faith and by appropriate proceedings and except
for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a
whole.
SECTION 4.09. SEC Reports.
The Company will deliver to the Trustee within 15
days after the filing of the same with the Commission, copies
of the quarterly and annual report and of the information docu-
ments and other reports, if any, which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of
the Securities Exchange Act. Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company will file with the
Commission, to the extent permitted, and provide the Trustee
and Holders of Securities with such annual reports and such
information, documents and other reports specified in Section
13 and 15(d) of the Exchange Act. The Company will also comply
with the other provisions of TIA Section 314(a).
50
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SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may law-
fully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advan-
tage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all
or any portion of the principal of or interest on the Securi-
ties as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or
the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company 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 4.11. Limitation on Transactions with Affiliates.
(a) Neither the Company nor any of its Subsidiaries
shall (i) sell, lease, transfer or otherwise dispose of any of
its properties or assets, or issue securities (other than
equity securities which do not constitute Disqualified Capital
Stock) to, (ii) purchase any property, assets or securities
from, (iii) make any Investment in, or (iv) enter into or suf-
fer to exist any contract or agreement with or for the benefit
of, an Affiliate or Significant Stockholder (or any Affiliate
of such Significant Stockholder) of the Company or any Subsid-
iary (an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under Section 4.11(b) and (y) Affiliate
Transactions in the ordinary course of business that are fair
to the Company or such Subsidiary, as the case may be, and on
terms at least as favorable as might reasonably have been
obtainable at such time from an unaffiliated party; provided
that (A) with respect to Affiliate Transactions involving
aggregate payments in excess of $1 million and less than $5
million, the Company or such Subsidiary, as the case may be,
shall have delivered an Officers' Certificate to the Trustee
certifying that such transaction or series of transactions com-
plies with clause (y) above, (B) with respect to Affiliate
Transactions involving aggregate payments in excess of $5 mil-
lion and less than $15 million, the Company or such Subsidiary,
as the case may be, shall have delivered an Officers' Certifi-
cate to the Trustee certifying that such Affiliate Transaction
complies with clause (y) above and that such Affiliate Transac-
tion has received the approval of a majority of the
51
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disinterested members of the Board of Directors of the Company
or the Subsidiary, as the case may be, or in the absence of any
such approval by the disinterested members of the Board of
Directors of the Company or the Subsidiary, as the case may be,
that an Independent Financial Advisor has reasonably and in
good faith determined that the financial terms of such Affili-
ate Transaction are fair to the Company or such Subsidiary, as
the case may be, or that the terms of such Affiliate Transac-
tion are at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party and that such
Independent Financial Advisor has provided written confirmation
of such determination to the Board of Directors and (C) with
respect to Affiliate Transactions involving aggregate payments
in excess of $15 million, the Company or such Subsidiary, as
the case may be, shall have delivered to the Trustee a written
opinion from an Independent Financial Advisor to the effect
that the financial terms of such Affiliate Transaction are fair
to the Company or such Subsidiary, as the case may be, or that
the terms of such Affiliate Transaction are at least as favor-
able as those that might reasonably have been obtained at the
time from an unaffiliated party.
(b) The provisions of Section 4.11(a) shall not
apply to (i) any Permitted Payment, (ii) any Restricted Payment
that is made in compliance with the provisions of Section 4.03,
(iii) reasonable and customary fees and compensation paid to,
and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary, as
determined by the Board of Directors of the Company or any Sub-
sidiary or the senior management thereof in good faith,
(iv) transactions exclusively between or among the Company and
any of its wholly-owned Subsidiaries or exclusively between or
among such wholly-owned Subsidiaries, provided such transac-
tions are not otherwise prohibited by this Indenture, (v) any
agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pur-
suant to any amendment thereto) so long as any such amendment
is not disadvantageous to the Securityholders in any material
respect, (vi) the existence of, or the performance by the Com-
pany or any of its Subsidiaries of its obligations under the
terms of, any stockholder agreement (including any registration
rights agreement or purchase agreement related thereto) to
which it (or New Holdings) is a party as of the Issue Date and
any similar agreements which it (or New Holdings) may enter
into thereafter; provided, however, that the existence of, or
the performance by the Company or any Subsidiaries of obliga-
tions under any future amendment to, any such existing
52
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agreement or under any similar agreement entered into after the
Issue Date shall only be permitted by this clause (vi) to the
extent that the terms of any such amendment or new agreement
are not otherwise disadvantageous to the Securityholders in any
material respect, (vii) transactions permitted by, and comply-
ing with, the provisions of Section 5.01 and (viii) purchases
or sales of goods or services or other transactions with sup-
pliers, in each case, in the ordinary course of business
(including, without limitation, pursuant to joint venture
agreements) and otherwise in compliance with the terms of this
Indenture which are fair to the Company, in the reasonable
determination of the Board of Directors, or are on terms at
least as favorable as might reasonably have been obtained at
such time from an unaffiliated party.
SECTION 4.12. Limitation on Incurrences of
Additional Indebtedness.
The Company shall not, and shall not permit any of
its Subsidiaries, directly or indirectly, to incur, assume,
guarantee, become liable, contingently or otherwise, with
respect to, or otherwise become responsible for the payment of
(collectively "incur") any Indebtedness other than Permitted
Indebtedness; provided, however, that if no Default with
respect to payment of principal of, or interest on, the Securi-
ties or Event of Default shall have occurred and be continuing
at the time of or as a consequence of the incurrence of any
such Indebtedness, the Company or any Subsidiary Guarantor may
incur Indebtedness if immediately before and immediately after
giving effect to the incurrence of such Indebtedness the Oper-
ating Coverage Ratio of the Company would be greater than 2.0
to 1.0; provided further a Subsidiary may incur Acquired
Indebtedness to the extent such Indebtedness could have been
incurred by the Company pursuant to the immediately preceding
proviso.
In addition, neither the Company nor any Subsidiary
Guarantor will, directly or indirectly, in any event incur any
Indebtedness that by its terms (or by the terms of any agree-
ment governing such Indebtedness) is subordinated to any other
Indebtedness of the Company or such Subsidiary Guarantor, as
the case may be, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness)
made expressly subordinate to the Securities or the Guarantee
of such Subsidiary Guarantor, as the case may be, to the same
extent and in the same manner as such Indebtedness is subordi-
nated pursuant to subordination provisions that are most
53
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favorable to the holders of any other Indebtedness of the Com-
pany or such Subsidiary Guarantor, as the case may be.
SECTION 4.13. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Sub-
sidiary to, directly or indirectly, create or suffer to exist,
or allow to become effective any consensual Payment Restriction
with respect to any of its Subsidiaries, except for (a) any
such restrictions contained in (i) the Credit Agreement in
effect on the Issue Date, as any such payment restriction may
apply to any present or future Subsidiary, (ii) this Indenture
and any agreement in effect at or entered into on the Issue
Date, (iii) Indebtedness of a person existing at the time such
person becomes a Subsidiary (provided that (x) such Indebted-
ness is not incurred in connection with, or in contemplation
of, such person becoming a Subsidiary, (y) such restriction is
not applicable to any person, or the properties or assets or
any person, other than the person so acquired and (z) such
Indebtedness is otherwise permitted to be incurred pursuant to
Section 4.12), (iv) secured Indebtedness otherwise permitted to
be incurred pursuant to Sections 4.12 and 4.14 that limit the
right of the debtor to dispose of the assets securing such
Indebtedness; (b) customary non-assignment provisions restrict-
ing subletting or assignment of any lease or other agreement
entered into by a Subsidiary; (c) customary net worth provi-
sions contained in leases and other agreements entered into by
a Subsidiary in the ordinary course of business; (d) customary
restrictions with respect to a Subsidiary pursuant to an agree-
ment that has been entered into for the sale or disposition of
all or substantially all of the Capital Stock or assets of such
Subsidiary; (e) customary provisions in joint venture agree-
ments and other similar agreements; (f) restrictions contained
in Indebtedness incurred to refinance, refund, extend or renew
Indebtedness referred to in clause (a) above; provided that the
restrictions contained therein are not materially more restric-
tive taken as a whole than those provided for in such Indebted-
ness being refinanced, refunded, extended or renewed and
(g) Payment Restrictions contained in any other Indebtedness
permitted to be incurred subsequent to the Issue Date pursuant
to the provisions of Section 4.12; provided that any such Pay-
ment Restrictions are ordinary and customary with respect to
the type of Indebtedness being incurred (under the relevant
circumstances) and, in any event, no more restrictive than the
most restrictive Payment Restrictions in effect on the Issue
Date.
54
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SECTION 4.14. Limitation on Liens.
The Company shall not and shall not permit any Sub-
sidiary to create, incur, assume or suffer to exist any Liens
upon any of their respective assets unless the Securities are
equally and ratably secured by the Liens covering such assets,
except for (i) existing and future Liens securing Indebtedness
and other obligations of the Company and its Subsidiaries under
the Credit Agreement or any refinancing or replacement thereof
in whole or in part permitted under this Indenture, (ii) Per-
mitted Liens, (iii) Liens securing Acquired Indebtedness, pro-
vided that such Liens (x) are not incurred in connection with,
or in contemplation of, the acquisition of the property or
assets acquired and (y) do not extend to or cover any property
or assets of the Company or any Subsidiary other than the prop-
erty or assets so acquired, (iv) Liens to secure Capitalized
Lease Obligations and certain other Indebtedness that is other-
wise permitted under this Indenture, provided that (A) any such
Lien is created solely for the purpose of securing such other
Indebtedness representing, or incurred to finance, refinance or
refund, the cost (including sales and excise taxes, installa-
tion and delivery charges and other direct costs of, and other
direct expenses paid or charged in connection with, the pur-
chase (whether through stock or asset purchase, merger or
otherwise) or construction) or improvement of the property sub-
ject thereto (whether real or personal, including fixtures and
other equipment), (B) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such costs and
(C) such Lien does not extend to or cover any other property
other than such item of property and any improvements on such
item, (v) Liens existing on the Issue Date (after giving effect
to the Merger), (vi) Liens in favor of the Trustee under this
Indenture and any substantially equivalent Lien granted to any
trustee or similar institution under any indenture for Indebt-
edness permitted by the terms of this Indenture, and (vii) any
replacement, extension or renewal, in whole or in part, of any
Lien described in the foregoing clauses including in connection
with any refinancing of the Indebtedness, in whole or in part,
secured by any such Lien provided that to the extent any such
clause limits the amount secured or the assets subject to such
Liens, no extension or renewal shall increase the amount or the
assets subject to such Liens, except to the extent that the
Liens associated with such additional assets are otherwise per-
mitted hereunder.
55
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SECTION 4.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require the repurchase of such
Holder's Securities pursuant to the offer described in para-
graph (b), below (the "Change of Control Offer"), at a purchase
price equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of repurchase.
(b) Within 30 days following the date upon which the
Change of Control occurred (the "Change of Control Date"), the
Company must send, by first class mail, a notice to each Holder
of Securities, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control Offer. The notice to
the Holders shall contain all instructions and materials neces-
sary to enable such Holders to tender Securities pursuant to
the Change of Control Offer. The Company shall give notice of
an event giving rise to a Change of Control on the same date
and in the same manner to all Holders of Securities. Such
notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Securities ten-
dered will be accepted for payment;
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be no
earlier than 30 days nor later than 40 days from the date
such notice is mailed, other than as may be required by
law) (the "Change of Control Payment Date"); provided,
however, that the Change of Control Payment Date for the
Securities shall be one Business Day prior to the Change
of Control Payment Date with respect to the Change of Con-
trol Payment Date under the Senior Subordinated Note
Indentures with respect to such Change of Control;
(3) that any Security not tendered will continue to
accrue interest if interest is then accruing;
(4) that, unless the Company defaults in making pay-
ment therefor, any Security accepted for payment pursuant
to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security pur-
chased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled
56
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"Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on
the Business Day prior to the Change of Control Payment
Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two
Business Days prior to the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter set-
ting forth the name of the Holder, the principal amount of
the Securities the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to
have such Security purchased;
(7) that Holders whose Securities are purchased only
in part will be issued new Securities equal in principal
amount to the unpurchased portions of the Securities sur-
rendered; provided that each Security purchased and each
Security issued shall be in an original principal amount
of $1,000 or integral multiples thereof;
(8) that each Change of Contol Offer is required to
remain open for at least 20 Business Days and until 12:00
Midnight New York City time on the applicable Change of
Control Payment Date; and
(9) the circumstances and relevant facts regarding
such Change of Control.
On or before the Change of Control Payment Date, the
Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient
to pay the purchase price of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together
with an Officers' Certificate stating the Securities or por-
tions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price (and the Trus-
tee shall promptly authenticate and mail to such Holders new
Securities equal in principal amount to any unpurchased portion
of the Securities surrendered) unless such payment is prohib-
ited pursuant to Article Four or otherwise. The Company will
publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment
57
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Date. For purposes of this Section 4.15, the Trustee shall act
as the Paying Agent.
The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regula-
tions are applicable in connection with the repurchase of Secu-
rities pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict
with the provisions under this Section 4.15, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
The Company will not, and will not permit any of its
Subsidiaries to, make any Asset Sale, unless (a) the Company or
the applicable Subsidiary receives consideration at the time of
such Asset Sale at least equal to the fair market value of the
assets sold and (b) upon consummation of an Asset Sale, the
Company will within 365 days of the receipt of the proceeds
therefrom, either: (i) apply or cause its subsidiary to apply
the Net Cash Proceeds of any Asset Sale to (1) a Related Busi-
ness Investment, (2) an investment in properties and assets
that replace the properties and assets that are the subject of
such Asset Sale or (3) an investment in properties and assets
that will be used in the business of the Company and its Sub-
sidiaries existing on the Issue Date or in a business reason-
ably related thereto; (ii) apply or cause to be applied such
Net Cash Proceeds to the permanent repayment of Pari Passu
Indebtedness; provided, however, that the repayment of any
revolving loan (under the Credit Agreement or otherwise) shall
result in a permanent reduction in the commitment thereunder;
(iii) use such Net Cash Proceeds to secure Letter of Credit
Obligations to the extent related letters of credit have not
been drawn upon or returned undrawn; or (iv) after such time as
the accumulated Net Cash Proceeds equals or exceeds $20 mil-
lion, apply or cause to be applied such Net Cash Proceeds to
the purchase of Securities tendered to the Company for purchase
at a price equal to 100% of the principal amount thereof plus
accrued interest thereon to the date of purchase pursuant to an
offer to purchase made by the Company as set forth below (a
"Net Proceeds Offer"); provided, however, that the Company
shall have the right to exclude from the foregoing provisions
Asset Sales subsequent to the Issue Date, (x) the proceeds of
which are derived from the sale and substantially concurrent
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lease-back of a supermarket and/or related assets which are
acquired or constructed by the Company or a Subsidiary subse-
quent to the Issue Date, provided that such sale and substan-
tially concurrent lease-back occurs within 180 days following
such acquisition or the completion of such construction, as the
case may be, and (y) the proceeds of which in the aggregate do
not exceed $20 million; provided further that pending the uti-
lization of any Net Cash Proceeds in the manner (and within the
time period) described above, the Company may use any such Net
Cash Proceeds to repay revolving loans under the Credit Agree-
ment without a permanent reduction of the commitment
thereunder.
Notice of a Net Proceeds Offer pursuant to this
Section 4.16 will be mailed to record Holders of Securities as
shown on the register of Holders not less than 325 days nor
more than 365 days after the relevant Asset Sale, with a copy
to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities
pursuant to the Net Proceeds Offer and shall state the follow-
ing terms:
(1) that the Net Proceeds Offer is being made pursu-
ant to Section 4.16 and that all Securities tendered will
be accepted for payment, provided, however, that if the
aggregate principal amount of Securities tendered in a Net
Proceeds Offer plus accrued interest at the expiration of
such offer exceeds the aggregate amount of the Net Pro-
ceeds Offer, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or multiples thereof
shall be purchased);
(2) the purchase price (including the amount of
accrued interest) and the purchase date (which shall be no
earlier than 30 days nor later than 40 days from the date
such notice is mailed, other than as may be required by
law) (the "Proceeds Purchase Date");
(3) that any Security not tendered will continue to
accrue interest if interest is then accruing;
(4) that, unless the Company defaults in making pay-
ment therefor, any Security accepted for payment pursuant
to the Net Proceeds Offer shall cease to accrue interest
after the Proceeds Purchase Date;
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(5) that Holders electing to have a Security pur-
chased pursuant to a Net Proceeds Offer will be required
to surrender the Security, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Secu-
rity completed, to the Paying Agent at the address speci-
fied in the notice prior to the close of business on the
Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two
Business Days prior to the Proceeds Purchase Date, a tele-
gram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a state-
ment that such Holder is withdrawing his election to have
such Security purchased; and
(7) that Holders whose Securities were purchased
only in part will be issued new Securities equal in prin-
cipal amount to the unpurchased portion of the Securities
surrendered; provided that each Security purchased and
each new Security issued shall be in an original principal
amount of $1,000 or integral multiples thereof.
On or before the Proceeds Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Net Proceeds Offer which are to be
purchased in accordance with item (b)(1) above, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities to be purchased and (iii)
deliver to the Trustee Securities so accepted together with an
Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Securities so accepted payment
in an amount equal to the purchase price (and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion
of the Security surrendered). The Company will publicly
announce the results of the Net Proceeds Offer on or as soon as
practicable after the Proceeds Purchase Date. For purposes of
this Section 4.16, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Securi-
ties pursuant to a Net Proceeds Offer shall be returned by the
Trustee to the Company.
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The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regula-
tions are applicable in connection with the purchase of Securi-
ties pursuant to a Net Proceeds Offer. To the extent the pro-
visions of any securities laws or regulations conflict with the
provisions under this Section 4.16, the Company shall comply
with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under this Sec-
tion 4.16 by virtue thereof.
SECTION 4.17. Guarantees of Certain Indebtedness.
The Company will not permit any of its Subsidiaries
to (a) incur, guarantee or secure through the granting of Liens
the payment of any Indebtedness under the term portion of the
Credit Agreement or refinancings thereof or (b) pledge any
intercompany notes representing obligations of any of its Sub-
sidiaries, to secure the payment of any Indebtedness under the
term portion of the Credit Agreement or refinancings thereof,
in each case unless such Subsidiary, the Company and the Trus-
tee execute and deliver a supplemental indenture evidencing
such Subsidiary's Guarantee.
SECTION 4.18. Limitation 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 to a
wholly-owned Subsidiary) or permit any person (other than the
Company or a wholly-owned Subsidiary) to own any Preferred
Stock of any Subsidiary.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitations on Mergers and Certain Other
Transactions.
(a) The Company shall not in a single transaction or
through a series of related transactions, (i) consolidate with
or merge with or into any other person, or transfer (by lease,
assignment, sale or otherwise) all or substantially all of its
properties and assets as an entirety or substantially as an
entirety to another person or group of affiliated persons or
(ii) adopt a Plan of Liquidation, unless, in either case:
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(1) either the Company shall be the continuing per-
son, or the person (if other than the Company) formed by
such consolidation or into which the Company is merged or
to which all or substantially all of the properties and
assets of the Company as an entirety or substantially as
an entirety are transferred (or, in the case of a Plan of
Liquidation, any person to which assets are transferred)
(the Company or such other person being hereinafter
referred to as the "Surviving Person") shall be a corpora-
tion organized and validly existing under the laws of the
United States, any State thereof or the District of Colum-
bia, and shall expressly assume, by an indenture supple-
ment, all the obligations of the Company under the Securi-
ties and this Indenture;
(2) immediately after and giving effect to such
transaction and the assumption contemplated by clause
(1) above and the incurrence or anticipated incurrence of
any Indebtedness to be incurred in connection therewith,
(A) the Surviving Person shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth
of the Company immediately preceding the transaction and
(B) the Surviving Person could incur at least $1 of addi-
tional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.12;
(3) immediately before and immediately after and
giving effect to such transaction and the assumption of
the obligations as set forth in clause (1) above and the
incurrence or anticipated incurrence of any Indebtedness
to be incurred in connection therewith, no Default or
Event of Default shall have occurred and be continuing;
and
(4) each Subsidiary Guarantor, unless it is the
other party to the transaction, shall have by supplemental
indenture confirmed that its Guarantee of the obligations
of the Company under the Securities and this Indenture
shall apply, without alteration or amendment as such Guar-
antee applies on the date it was granted under this Inden-
ture to the obligations of the Company under this Inden-
ture and the Securities to the obligations of the Company
or such Person as the case may be, under this Indenture
and the Securities, after consummation of such
transaction.
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(b) Notwithstanding the foregoing, the consummation
of the Merger on the Issue Date need only comply with clauses
(1) and (3) of the foregoing paragraph.
(c) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the
properties and assets of one or more direct or indirect Subsid-
iaries, the Capital Stock of which constitutes all or substan-
tially all of the properties and assets of the Company shall be
deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of
assets in accordance with Section 5.01, the successor person
formed by such consolidation or into which the Company is
merged or to which such transfer 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;
provided, however, that solely for purposes of computing
amounts described in subclause (c) of the first paragraph of
Section 4.03, any such successor person shall only be deemed to
have succeeded to and be substituted for the Company with
respect to periods subsequent to the effective time of such
merger, consolidation or transfer of assets. When a successor
corporation assumes all of the obligations of the Company here-
under and under the Securities and agrees to be bound hereby
and thereby, the predecessor shall be released from such
obligations.
ARTICLE SEVEN
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default.
An "Event of Default" occurs if:
(i) the Company defaults in the payment of
interest on any Securities when the same becomes due and
payable and the Default continues for a period of 30 days;
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(ii) the Company defaults in the payment of the
principal of, or premium, if any, on the Securities when
due whether at maturity, upon acceleration, redemption,
required repurchase or otherwise;
(iii) the Company fails to comply with any of its
agreements contained in the Securities or this Indenture
(other than a default specified in clause (i) or (ii)
above), if such failure continues for the period and after
the notice specified below;
(iv) there shall be a default under any
Indebtedness of the Company or any of its Subsidiaries,
whether such Indebtedness now exists or shall hereafter be
created, if both (A) such default either (1) results from
the failure to pay any such Indebtedness at its stated
final maturity or (2) relates to an obligation other than
the obligation to pay such Indebtedness at its stated
final maturity and results in the holder or holders of
such Indebtedness causing such Indebtedness to become due
prior to its stated final maturity and (B) the principal
amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for
failure to pay principal at stated final maturity or the
maturity of which has been so accelerated, aggregates $20
million or more at any one time outstanding;
(v) one or more judgments, orders or decrees of
any court or regulatory or administrative agency of
competent jurisdiction for the payment of money in excess
of $20 million, either individually or in the aggregate,
shall be entered against the Company or any Subsidiary of
the Company or any of their respective properties and
shall not be discharged and there shall have been a period
of 60 days after the date on which any period for appeal
has expired and during which a stay of enforcement of such
judgment, order or decree shall not be in effect;
(vi) either the Company or any Significant
Subsidiary pursuant to or within the meaning of any
Bankruptcy Law: (a) commences a voluntary case or
proceeding; (b) consents to the entry of a Bankruptcy
Order for relief against it in an involuntary case or
proceeding or the commencement of any case or proceeding
against it; (c) consents to the appointment of a custodian
of it or for substantially all of its property; or
(d) makes a general assignment for the benefit of its
creditors;
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(vii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that: (a) is for
relief against the Company or any Significant Subsidiary,
in an involuntary case or proceeding; (b) appoints a cus-
todian of the Company or any Significant Subsidiary, or
for all or any substantial part of their respective prop-
erties; or (c) orders the liquidation of the Company or
any Significant Subsidiary and in each case the order or
decree remains unstayed and in effect for 60 days;
(viii) the lenders under the Credit Agreement
shall commence judicial proceedings to foreclose upon any
material portion of the assets of the Company and its
Subsidiaries or shall have exercised any right under
applicable law or applicable security documents to take
ownership of any such assets in lieu of foreclosure; or
(ix) any of the Guarantees shall be declared or
adjudged invalid in a final judgment or order issued by
any court or governmental authority.
A Default under clause (iii) above (other than in the
case of any Default under Section 4.03, 4.15, 4.16 or 5.01,
which Defaults shall be Events of Default with the notice spec-
ified in this paragraph but without the passage of time speci-
fied in this paragraph) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in
principal amount of the outstanding Securities notify the Com-
pany and the Trustee of the Default, and the Company does not
cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default." Such
notice shall be given by the Trustee if so requested by the
Holders of at least 25% in principal amount of the Securities
then outstanding. When a Default is cured, it ceases.
SECTION 7.02. Acceleration.
(a) If an Event of Default (other than an Event of
Default specified in Section 6.01(vi) or (vii) with respect to
the Company or a Subsidiary Guarantor) occurs and is continu-
ing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Securities may, and the Trustee
upon the request of the Holders of not less than 25% in aggre-
gate principal amount of the then outstanding Securities shall,
declare due and payable all unpaid principal and interest
accrued and unpaid on the then outstanding Securities by
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written notice to the Company and the Trustee specifying the
respective Event of Default and that it is a "notice of accel-
eration" (the "Acceleration Notice"), and the same (i) shall
become immediately due and payable or (ii) if there are any
amounts outstanding under the Credit Agreement, shall become
due and payable upon the first to occur of an acceleration
under the Credit Agreement, or five business days after receipt
by the Company and the Credit Agent of such Acceleration
Notice. If an Event of Default specified in Section 6.01(vi)
or (vii) occurs with respect to the Company or a Subsidiary
Guarantor, all unpaid principal of and accrued interest on all
then outstanding Securities shall be immediately due and pay-
able without any declaration or other act on the part of the
Trustee or any of the Holders. Upon payment of such principal
amount, interest, and premium, if any, all of the Company's
obligations under the Securities and this Indenture, other than
obligations under Section 7.07, shall terminate. After a dec-
laration of acceleration, the Holders of a majority in princi-
pal amount of the Securities then outstanding, by notice to the
Trustee, may rescind an acceleration and its consequences if
(i) all existing Events of Default, other than the non-payment
of the principal of the Securities which has become due solely
by such declaration of acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue prin-
cipal, which has become due otherwise than by such declaration
of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent
jurisdiction and (iv) the Company has paid or deposited with
the Trustee a sum sufficient to pay all sums paid or advanced
by the Trustee under this Indenture and the compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
(b) In the event of a declaration of acceleration
under this Indenture because an Event of Default set forth in
Section 6.01(iv) has occurred and is continuing, such declara-
tion of acceleration shall be automatically rescinded and
annulled if either (i) the holders of the Indebtedness which is
the subject of such Event of Default have waived such failure
to pay at maturity or have rescinded the acceleration in
respect of such Indebtedness within 90 days of such maturity or
declaration of acceleration, as the case may be, and no other
Event of Default has occurred during such 90-day period which
has not been cured or waived, or (ii) such Indebtedness shall
have been discharged or the maturity thereof shall have been
extended such that it is not then due and payable, or the
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underlying default has been cured, within 90 days of such
maturity or declaration of acceleration, as the case may be.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on
the Securities or to enforce the performance of any provision
of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by
law.
SECTION 7.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a
majority in principal amount of the outstanding Securities by
notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment
of principal of or interest on any Security as specified in
clauses (i) and (ii) of Section 6.01. When a Default or Event
of Default is waived, it is cured and ceases.
SECTION 7.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities may 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 it, including, without limitation, any reme-
dies provided for in Section 6.03. Subject to Section 7.01,
however, the Trustee may refuse to follow any direction that
conflicts with any law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with
such direction.
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SECTION 7.06. Limitation on Suits.
A Securityholder may not pursue any remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holder or Holders of at least 25% in princi-
pal amount of the outstanding Securities make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense to be incurred in compliance with
such request;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
of indemnity; and
(5) during such 60-day period the Holder or Holders
of a majority in principal amount of the outstanding Secu-
rities do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to preju-
dice the rights of another Securityholder or to obtain a pref-
erence or priority over such other Securityholder.
SECTION 7.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Inden-
ture, the right of any Holder to receive payment of principal
of and interest on a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or
interest specified in clause (i) or (ii) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or
any other obligor on the Securities for the whole amount of
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principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment
of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Secu-
rities and 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 Trus-
tee, its agents and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and 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 the Securityholders
allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective
creditors or any of their respective property and shall be
entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Security
holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
SECTION 7.10. Priorities.
If the Trustee collects any money pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under
Section 7.07;
Second: to Holders for interest accrued on the Secu-
rities, ratably, without preference or priority of any
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kind, according to the amounts due and payable on the
Securities for interest;
Third: to Holders for principal amounts due and
unpaid on the Securities, ratably, without preference or
priority of any kind, according to the amounts due and
payable on the Securities for principal; and
Fourth: to the Company or the Subsidiary Guarantors,
as their respective interests may appear.
The Trustee, upon prior notice to the Company, may
fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
SECTION 7.11. Rights and Remedies Cumulative.
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 here
after 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 7.12. 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 acquies-
cence therein. Every right and remedy given by this Article
Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
SECTION 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or rem-
edy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
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suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This
Section 6.13 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the outstanding
Securities.
ARTICLE EIGHT
TRUSTEE
The Trustee hereby accepts the trust imposed upon it
by this Indenture and covenants and agrees to perform the same,
as herein expressed.
SECTION 8.01. Duties of Trustee.
(a) If a Default or 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 its exercise thereof as a pru-
dent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(1) The Trustee need perform only those duties as
are specifically set forth in this Indenture and no cove-
nants or obligations shall be implied in this Indenture
that are adverse to the Trustee.
(2) 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 Inden-
ture. However, 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:
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(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(3) 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 6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if
it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or lia-
bility is not reasonably assured to it.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b),
(c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on
any assets received by it except as the Trustee may agree with
the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by
law.
SECTION 8.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on 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.
(b) Before the Trustee acts or refrains from acting,
it may consult with counsel and may require an Officers'
Certificate or an Opinion of Counsel, which shall conform
to Sections 11.04 and 11.05. The Trustee shall not be
liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
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(c) 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.
(d) The Trustee shall not be liable for any action
that it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any res-
olution, certificate, statement, instrument, opinion,
notice, request, direction, consent, order, bond, deben-
ture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee rea-
sonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries, or their respective
Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee makes no representation as to the valid-
ity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company's use of the proceeds from
the Securities, and it shall not be responsible for any state-
ment in the Securities other than the Trustee's certificate of
authentication.
SECTION 8.05. Notice of Default.
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Holder of Securities notice of the Default or
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Event of Default within 90 days after such Default or Event of
Default occurs; provided, however, that, except in the case of
a Default or Event of Default in the payment of the principal
of or interest on any Security, including the failure to make
payment on a Change of Control Payment Date pursuant to a
Change of Control Offer or payment when due pursuant to a Net
Proceeds Offer the Trustee may withhold such notice if it in
good faith determines that withholding such notice is in the
interest of the Holders.
SECTION 8.06. Reports by Trustee to Holders.
Within 60 days after each beginning with the
following the date of this Indenture, the Trustee shall,
to the extent that any of the events described in TIA Sec. 313(a)
occurred within the previous twelve months, but not otherwise,
mail to each Securityholder a brief report dated as of such
that complies with TIA Sec. 313(a). The Trustee also shall
comply with TIA Secs. 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with
the Commission and each stock exchange, if any, on which the
Securities are listed.
The Company shall notify the Trustee if the Securi-
ties become listed on any stock exchange.
SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold
it harmless against, any loss or liability incurred by it
except for such actions to the extent caused by any negligence
or bad faith on its part, arising out of or in connection with
the administration of this trust and its rights or duties here-
under. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indem-
nity. The Company shall defend the claim and the Trustee shall
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cooperate in the defense. The Trustee may have separate coun-
sel and the Company shall pay the reasonable fees and expenses
of such counsel; provided that the Company will not be required
to pay such fees and expenses if it assumes the Trustee's
defense and there is no conflict of interest between the Com-
pany and the Trustee in connection with such defense as reason-
ably determined by the Trustee. The Company need not pay for
any settlement made without its written consent. The Company
need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Secu-
rities on all assets held or collected by the Trustee, in its
capacity as Trustee, except assets held in trust to pay princi-
pal of or interest on particular Securities.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(vi) or
(vii) occurs, the expenses and the compensation for the ser-
vices are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company.
The Holders of a majority in principal amount of the outstand-
ing Securities may remove the Trustee and appoint a successor
trustee with the Company's consent, by so notifying the Company
and the Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall notify each Holder of such event and shall promptly
appoint a successor Trustee. Within one year after the succes-
sor Trustee takes office, the Holders of a majority in
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principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the
Company.
A successor Trustee shall deliver a written accep-
tance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided in Section 7.07, the res-
ignation or removal of the retiring Trustee shall become effec-
tive, and the successor Trustee shall have all the rights, pow-
ers and duties of the Trustee under this Indenture. A succes-
sor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a suc-
cessor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a succes-
sor Trustee.
Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under
Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to, another corporation, the resulting, surviv-
ing or transferee corporation without any further act shall, if
such resulting, surviving or transferee corporation is other-
wise eligible hereunder, be the successor Trustee.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satis-
fies the requirement of TIA Secs. 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual
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report of condition. The Trustee shall comply with TIA
Sec. 310(b); provided, however, that there shall be excluded from
the operation of TIA Sec. 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstand-
ing, if the requirements for such exclusion set forth in TIA
Sec. 310(b)(1) are met.
SECTION 8.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Sec. 311(a), excluding
any creditor relationship listed in TIA Sec. 311(b). A Trustee
who has resigned or been removed shall be subject to TIA
Sec. 311(a) to the extent indicated.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Termination of the Company's
Obligations.
The Company may terminate its obligations under the
Securities and this Indenture, and the obligations of any Sub-
sidiary Guarantor shall terminate, except those obligations
referred to in the penultimate paragraph of this Section 8.01,
if all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money has
theretofore been deposited with the Trustee or the Paying Agent
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 8.04)
have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder, or if:
(1) either (i) pursuant to Article Three, the Com-
pany shall have given notice to the Trustee and mailed a
notice of redemption to each Holder of the redemption of
all of the Securities under arrangements satisfactory to
the Trustee for the giving of such notice or (ii) all
Securities have otherwise become due and payable
hereunder;
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(2) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee sat-
isfactory to the Trustee, under the terms of an irrevo-
cable trust agreement in form and substance satisfactory
to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, money in such
amount as is sufficient without consideration of reinvest-
ment of such interest, to pay principal of, premium, if
any, and interest on the outstanding Securities to matur-
ity or redemption; provided that the Trustee shall have
been irrevocably instructed to apply such money to the
payment of said principal, premium, if any, and interest
with respect to the Securities;
(3) no Default or Event of Default with respect to
this Indenture or the Securities shall have occurred and
be continuing on the date of such deposit or shall occur
as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a
default under, any other instrument to which the Company
is a party or by which it is bound;
(4) the Company shall have paid all other sums pay-
able by it hereunder; and
(5) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent providing for the
termination of the Company's and any Subsidiary Guaran-
tor's obligation under the Securities and this Indenture
have been complied with. Such Opinion of Counsel shall
also state that such satisfaction and discharge does not
result in a default under the Credit Agreement (if then in
effect) or any other agreement or instrument then known to
such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Compa-
ny's obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02
and 7.07 and any Subsidiary Guarantor's obligations in respect
thereof shall survive until the Securities are no longer out-
standing pursuant to the last paragraph of Section 2.08. After
the Securities are no longer outstanding, the Company's obliga-
tions in Sections 7.07, 8.04 and 8.05 and any Subsidiary Guar-
antor's obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trus-
tee upon request shall acknowledge in writing the discharge of
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the Company's and any Subsidiary Guarantor's obligations under
the Securities and this Indenture except for those surviving
obligations specified above.
SECTION 9.02. Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option by Board Resolu-
tion of the Board of Directors of the Company, at any time,
with respect to the Securities, elect to have either
paragraph (b) or paragraph (c) below be applied to the out
standing Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (b), the Company and
any Subsidiary Guarantor shall be deemed to have been released
and discharged from its obligations with respect to the out-
standing Securities on the date the conditions set forth below
are satisfied (hereinafter, "legal defeasance"). For this pur-
pose, such legal defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness rep-
resented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of para-
graph (e) below and the other Sections of and matters under
this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same) except for the fol-
lowing which shall survive until otherwise terminated or dis-
charged hereunder: (i) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such para-
graph, payments in respect of the principal of, premium, if
any, and interest on such Securities when such payments are
due, (ii) the Company's obligations with respect to such Secu-
rities under Sections 2.06, 2.07 and 4.02, and, with respect to
the Trustee, under Section 7.07 and any Subsidiary Guarantor's
obligations in respect thereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 8.02 and Section 8.05. Subject to compliance with
this Section 8.02, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) below with respect to the
Securities.
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(c) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (c), the Company
shall be released and discharged from its obligations under any
covenant contained in Article five and in Sections 4.03, 4.05
through 4.09 and 4.11 through 4.18 with respect to the out-
standing 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 "out-
standing" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue
to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities, the Company and any Sub-
sidiary Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default
under Section 6.01(iii), but, except as specified above, the
remainder of this Indenture and such Securities shall be unaf-
fected thereby.
(d) The following shall be the conditions to appli-
cation of either paragraph (b) or paragraph (c) above to the
outstanding Securities:
(i) the Company shall irrevocably have
deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions
of this Section 8.02 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,
(x) money in an amount or (y) direct non-callable
obligations of, or non-callable obligations guaranteed by,
the United States of America for the payment of which
guarantee or obligation the full faith and credit of the
United States is pledged ("U.S. Government Obligations")
maturing as to principal, premium, if any, and interest
in such amounts of money and at such times as are
sufficient without consideration of any reinvestment of
such interest, to pay principal of and interest on the
outstanding Securities not later than one day before the
due date of any payment, or (z) a
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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 principal of, premium, if any, and interest on the
outstanding Securities on the Maturity Date or otherwise
in accordance with the terms of this Indenture and of such
Securities; provided, however, that the Trustee (or other
qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or
other qualifying trustee) to apply such money or the
proceeds of such U.S. Government Obligations to said
payments with respect to the Securities;
(ii) no Default or Event of Default or event
which with notice or lapse of time or both would become a
Default or an Event of Default with respect to the Securi-
ties shall have occurred and be continuing on the date of
such deposit or, insofar as Section 6.01(vi) or (vii) is
concerned, at any time during the period ending on the
91st day after the date of such deposit (it being under-
stood that this condition shall not be deemed satisfied
until the expiration of such period);
(iii) such legal defeasance or covenant
defeasance shall not cause the Trustee to have a
conflicting interest with respect to any Securities of the
Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant
defeasance shall not result in a breach or violation of,
or constitute a Default or Event of Default under, this
Indenture or any other material agreement or instrument to
which the Company or any Subsidiary Guarantor is a party
or by which it is bound (and in that connection, the
Trustee shall have received a certificate from the Credit
Agent to that effect with respect to such Credit Agreement
if then in effect);
(v) in the case of an election under
paragraph (b) above, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (y) since the
Issue Date, there has been a change in the applicable
Federal income
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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 legal 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
legal defeasance had not occurred;
(vi) in the case of an election under
paragraph (c) above, the Company shall have delivered to
the Trustee an Opinion of Counsel 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;
(vii) in the case of an election under either
paragraph (b) or (c) above, an Opinion of Counsel to the
effect that, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any
applicable Bankruptcy Law;
(viii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for relating to either the legal defeasance
under paragraph (b) above or the covenant defeasance under
paragraph (c) above, as the case may be, have been
complied with; and
(ix) the Company shall have delivered to the
Trustee an Officer's Certificate stating that the deposit
was not made by the Company with the intent of preferring
the Holders of the Securities over other creditors of the
Company or any Subsidiary Guarantor or with the intent of
defeating, hindering, delaying or defrauding creditors of
the Company, any Subsidiary Guarantor or others.
(e) All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this
paragraph (e), the "Trustee") pursuant to paragraph (d) above
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
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directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium and interest, but
such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
paragraph (d) above or the principal, premium, if any, 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 Section 8.02 to the contrary not-
withstanding, the Trustee shall deliver or pay to the Company
from time to time upon the request, in writing, by the Company
any money or U.S. Government Obligations held by it as provided
in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to
be deposited to effect an equivalent legal defeasance or cove-
nant defeasance.
SECTION 9.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Govern-
ment Obligations deposited with it pursuant to Sections 8.01
and 8.02, and shall apply the deposited money and the money
from U.S. Government Obligations in accordance with this Inden-
ture to the payment of principal of, premium, if any, and
interest on the Securities.
SECTION 9.04. Repayment to Company or Subsidiary
Guarantors.
Subject to Sections 7.07, 8.01 and 8.02, the Trustee
shall promptly pay to the Company, or if deposited with the
Trustee by any Subsidiary Guarantor, to such Guarantor, upon
receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Section 8.02, held by it
at any time. The Trustee and the Paying Agent shall pay to the
Company or any Subsidiary Guarantor, as the case may be, upon
receipt by the Trustee or the Paying Agent, as the case may be,
of an Officers' Certificate, any money held by it for the
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payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is
required; provided, however, that the Trustee and the Paying
Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York
or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to
the Company or any Subsidiary Guarantor, as the case may be,
Securityholders entitled to money must look solely to the Com-
pany for payment as general creditors unless an applicable
abandoned property law designates another person, and all lia-
bility of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
SECTION 9.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this
Indenture 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 applica-
tion, then and only then the Company's and each Subsidiary
Guarantor's, if any, obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit
had been made pursuant to this Indenture until such time as the
Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, how-
ever, that if the Company or the Subsidiary Guarantors, as the
case may be, has made any payment of principal of, premium, if
any, or interest on any Securities because of the reinstatement
of its obligations, the Company or the Subsidiary Guarantors,
as the case may be, 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.
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when
authorized by a Board Resolution, and the Trustee, together,
may amend or supplement this Indenture or the Securities with-
out notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not
adversely affect the rights of any Holder;
(2) to comply with Article Five and Section 10.06;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(4) to make any other change that does not adversely
affect the rights of any Securityholder; or
(5) to comply with any requirements of the Commis-
sion in connection with the qualification of this Inden-
ture under the TIA;
provided that the Company has delivered to the Trustee an Opin-
ion of Counsel stating that such amendment or supplement com-
plies with the provisions of this Section 9.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 6.07, the Company and each Subsid-
iary Guarantor, when authorized by a Board Resolution, and the
Trustee, together with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of
the outstanding Securities, may amend or supplement, or waive
compliance with any provision of, this Indenture, the Securi-
ties or any Guarantee without notice to any other
Securityholders; provided that without the consent of Holders
of not less than two thirds in aggregate principal amount of
Securities then outstanding, no such amendment, supplement or
waiver may release any Subsidiary Guarantor from any of its
obligations under its Guarantee or this Indenture other than in
accordance with the terms of such Guarantee and this Indenture.
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Without the consent of each Securityholder affected, however,
no amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may:
(1) change the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver
of any provision of this Indenture, the Securities or the
Guarantees;
(2) reduce the rate or extend the time for payment
of interest on any Security;
(3) reduce the principal amount of any Security;
(4) change the Maturity Date of any Security or the
Change of Control Payment Date, or alter the redemption
provisions in this Indenture or the Securities or the pur-
chase price in connection with any repurchase of Securi-
ties pursuant to Section 4.15 in a manner adverse to any
Holder;
(5) make any changes in the provisions concerning
waivers of Defaults or Events of Default by Holders of the
Securities or the rights of Holders to recover the princi-
pal of, interest on, or redemption payment with respect
to, any Security;
(6) make any changes in Section 6.04, 6.07 or this
Section 9.02;
(7) make the principal of, or the interest on any
Security payable with anything or in any manner other than
as provided for in this Indenture, the Securities and the
Guarantees as in effect on the date hereof; or
(8) waive a Default or Event of Default resulting
from failure to comply with the provisions of Section
4.15.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Hold-
ers affected thereby a notice briefly describing the amendment,
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supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental
indenture.
In connection with any amendment, supplement or
waiver under this Article Nine, the Company may, but shall not
be obligated to, offer to any Holder who consents to such
amendment, supplement or waiver, or to all Holders, considera-
tion for such Holder's consent to such amendment, supplement or
waiver.
SECTION 10.03. Compliance with TIA.
From the date on which the Indenture is qualified
under the TIA, every amendment, waiver or supplement of this
Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or por-
tion of a Security that evidences the same debt as the consent
ing Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of
his Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Cer-
tificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver, which record
date shall be at least 30 days prior to the first solicitation
of such consent. If a record date is fixed, then notwithstand-
ing the last sentence of the immediately preceding paragraph,
those persons who were Holders at such record date (or their
duly designated proxies), and only those persons, shall be
entitled to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days
after such record date.
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After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder, unless it makes
a change described in any of clauses (1) through (8) of Section
9.02, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Secu-
rity; provided that any such waiver shall not impair or affect
the right of any Holder to receive payment of principal of and
interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforce-
ment of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the
terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms
and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms.
SECTION 10.06. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement
or waiver authorized pursuant to this Article Nine; provided
that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Inden-
ture. The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or per-
mitted by this Indenture.
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally,
jointly and severally, guarantees (such guarantee to be
referred to herein as the "Guarantee") to each Holder of a
Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the Securities or the
Obligations of the Company hereunder or thereunder, that: (i)
the principal of and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and
interest on the overdue principal, if any, and interest on any
interest, to the extent lawful, of the Securities and all other
obligations of the Company to the Holders or the Trustee here-
under or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii)
in case of any extension of time of payment or renewal of any
Securities or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any appli-
cable grace period, whether at stated maturity, by acceleration
or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 10.05.
Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Inden
ture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, demand of pay-
ment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be dis-
charged except by complete performance of the obligations con-
tained in the Securities, this Indenture and in this Guarantee.
If any Securityholder or the Trustee is required by any court
or otherwise to return to the Company, any Subsidiary Guaran-
tor, or any custodian, trustee, liquidator or other similar
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official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary
Guarantor to the Trustee or such Securityholder, this Guaran-
tee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Subsidiary Guarantor further
agrees that, as between each Subsidiary Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohi-
bition preventing such acceleration in respect of the obliga-
tions guaranteed hereby, and (y) in the event of any accelera-
tion of such obligations as provided in Article Six, such obli-
gations (whether or not due and payable) shall forthwith become
due and payable by each Subsidiary Guarantor for the purpose of
this Guarantee.
SECTION 11.02. Severability.
In case any provision of this Guarantee 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 11.03. Release of a Subsidiary Guarantor.
Upon (i) the release by the lenders under the Term
Loans, related documents and future refinancings thereof of all
guarantees of a Subsidiary Guarantor and all Liens on the prop-
erty and assets of such Subsidiary Guarantor relating to such
Indebtedness, or (ii) the sale or disposition (whether by
merger, stock purchase, asset sale or otherwise) of a Subsid-
iary Guarantor (or all or substantially all its assets) to an
entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of
this Indenture, such Subsidiary Guarantor shall be deemed
released from all obligations under this Article Ten without
any further action required on the part of the Trustee or any
Holder; provided, however, that any such termination shall
occur only to the extent that all obligations of such Subsid-
iary Guarantor under all of its guarantees of, and under all of
its pledges of assets or other security interests which secure,
such Indebtedness of the Company shall also terminate upon such
release, sale or transfer.
The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the
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Company accompanied by an Officers' Certificate certifying as
to the compliance with this Section 10.03. Any Subsidiary
Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities as provided in this
Article Ten.
SECTION 11.04. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance
hereof each Holder hereby confirms that it is the intention of
all such parties that the guarantee by such Subsidiary Guaran-
tor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law. To effec-
tuate the foregoing intention, the Holders and such Subsidiary
Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor
and after giving effect to any collections from or payments
made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor
under its Guarantee or pursuant to Section 11.06, result in the
obligations of such Subsidiary Guarantor under the Guarantee
not constituting such fraudulent transfer or conveyance.
SECTION 11.05. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Sub-
sidiary Guarantor or shall prevent any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or sub-
stantially as an entirety, to the Company or another Subsidiary
Guarantor. Upon any such consolidation, merger, sale or con-
veyance, the Guarantee given by such Subsidiary Guarantor shall
no longer have any force or effect.
(b) Except as set forth in Article Four and Article
Five hereof, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into a corporation or corporations
other than the Company or another Subsidiary Guarantor (whether
or not affiliated with the Subsidiary Guarantor); provided,
however, that, subject to Sections 10.03 and 10.05(a),
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(i) immediately after such transaction, and giving effect
thereto, no Default or Event of Default shall have occurred as
a result of such transaction and be continuing, and (ii) upon
any such consolidation, merger, sale or conveyance, the Subsid-
iary Guarantee set forth in this Article Ten, and the due and
punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by such Subsidiary
Guarantor, shall be expressly assumed (in the event that the
Subsidiary Guarantor is not the surviving corporation in the
merger), by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the corpora-
tion formed by such consolidation, or into which the Subsidiary
Guarantor shall have merged, or by the corporation that shall
have acquired such property. In the case of any such consoli-
dation, merger, sale or conveyance and upon the assumption by
the successor corporation, by supplemental indenture executed
and delivered to the Trustee and satisfactory in form to the
Trustee of the due and punctual performance of all of the cove-
nants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor corporation shall succeed
to and be substituted for the Subsidiary Guarantor with the
same effect as if it had been named herein as a Subsidiary
Guarantor; provided, however, that solely for purposes of com-
puting amounts described in subclause (c) of the first para-
graph of Section 4.03, any such successor corporation shall
only be deemed to have succeeded to and be substituted for any
Subsidiary Guarantor with respect to periods subsequent to the
effective time of such merger, consolidation or transfer of
assets.
SECTION 11.06. Contribution.
In order to provide for just and equitable contribu-
tion among the Subsidiary Guarantors, the Subsidiary Guarantors
agree, inter se, that in the event any payment or distribution
is made by any Subsidiary Guarantor (a "Funding Guarantor")
under the Guarantee, such Funding Guarantor shall be entitled
to a contribution from all other Subsidiary Guarantors in a pro
rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in dis-
charging the Company's obligations with respect to the Securi-
ties or any other Subsidiary Guarantor's obligations with
respect to the Guarantee. "Adjusted Net Assets" of such Sub-
sidiary Guarantor at any date shall mean the lesser of the
amount by which (x) the fair value of the property of such Sub-
sidiary Guarantor exceeds the total amount of liabilities,
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including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities
under the Guarantee, of such Subsidiary Guarantor at such date
and (y) the present fair salable value of the assets of such
Subsidiary Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary
Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any Subsidiary of
such Subsidiary Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding debt in respect of
the Guarantee of such Subsidiary Guarantor, as they become
absolute and matured.
SECTION 11.07. Waiver of Subrogation.
Each Subsidiary Guarantor hereby irrevocably waives
any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment,
performance or enforcement of such Subsidiary Guarantor's obli-
gations under the Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in
any claim or remedy of any Holder of Securities against the
Company, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Com-
pany, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account
of such claim or other rights. If any amount shall be paid to
any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such
amount shall have been deemed to have been paid to such Subsid-
iary Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture.
Each Subsidiary Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in
this Section 10.07 is knowingly made in contemplation of such
benefits.
SECTION 11.08. Execution of Guarantee.
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To evidence their guarantee to the Securityholders
set forth in this Article Ten, the Subsidiary Guarantors hereby
agree to execute the Guarantee in substantially the form
included in Exhibit A, which shall be endorsed on each Security
ordered to be authenticated and delivered by the Trustee. Each
Subsidiary Guarantor hereby agrees that its Guarantee set forth
in this Article Ten shall remain in full force and effect not
withstanding any failure to endorse on each Security a notation
of such Guarantee. Each such Guarantee shall be signed on
behalf of each Subsidiary Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall,
in each case, have been duly authorized by all requisite corpo-
rate actions) shall attest to such Guarantee prior to the
authentication of the Security on which it is endorsed, and the
delivery of such Security by the Trustee, after the authentica-
tion thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Subsidiary Guarantor. Such signa-
tures upon the Guarantee may be by manual or facsimile signa-
ture of such officers and may be imprinted or otherwise repro-
duced on the Guarantee, and in case any such officer who shall
have signed the Guarantee shall cease to be such officer before
the Security on which such Guarantee is endorsed shall have
been authenticated and delivered by the Trustee or disposed of
by the Company, such Security nevertheless may be authenticated
and delivered or disposed of as though the person who signed
the Guarantee had not ceased to be such officer of the Subsid-
iary Guarantor.
SECTION 11.09. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury
law or other law that would prohibit or forgive each such Sub-
sidiary Guarantor from performing its Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so)
each such Subsidiary Guarantor 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.
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ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with the duties imposed by operation of Section
3.18(c) of the TIA, the imposed duties shall control.
SECTION 12.02. Notices.
Any notices or other communications required or per-
mitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or reg-
istered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
c/o The Yucaipa Companies
10000 Santa Monica Boulevard
Fifth Floor
Los Angeles, California 90067
Attention: Mark A. Resnik
if to the Trustee:
NorWest Bank Minnesota, N.A.
Attention: Corporate Trust Division
if to the Credit Agent:
Bankers Trust Company
Attention: [ ]
Each of the Company, the Trustee, the Subsidiary
Guarantors and the Credit Agent by written notice to each other
such person may designate additional or different addresses for
notices to such person. Any notice or communication to the
Company, the Trustee, the Subsidiary Guarantors and the Credit
Agent shall be deemed to have been given or made as of the date
so delivered if personally delivered; when answered back, if
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telexed; when receipt is acknowledged, if telecopied; and five
(5) calendar days after mailing if sent by registered or certi-
fied mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually
received by the addressee).
Any notice or communication mailed to a Security-
holder shall be mailed to him by first class mail or other
equivalent means at his address as it appears on the registra-
tion books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its suffi-
ciency with respect to other Securityholders. If a notice or
communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA
Sec. 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company,
the Subsidiary Guarantors, the Trustee, the Registrar and any
other person shall have the protection of TIA Sec. 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opin-
ion of such counsel, all such conditions precedent have
been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compli-
ance with a condition or covenant provided for in this
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Indenture, other than the Officers' Certificate required by
Section 4.07, shall include:
(1) a statement that the person making such certifi-
cate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such person,
he has made such examination or investigation as is neces-
sary to enable him to express an informed opinion as to
whether or not such convenant or condition has been com-
plied with; and
(4) a statement as to whether or not, in the opinion
of each such person, such condition or covenant has been
complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by
or at a meeting of Securityholders. The Paying Agent or Regis-
trar may make reasonable rules for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular
place of payment is a Saturday, a Sunday or a day on which
banking institutions in New York, New York, Los Angeles, Cali-
fornia or at such place of payment are not required to be open.
If a payment date is a Legal Holiday at such place, payment may
be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 12.08. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. Each of the parties hereto agrees to submit to the
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jurisdiction of the courts of the State of New York in any
action or proceeding arising out of or relating to this
Indenture.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of any of the Company or any
of its Subsidiaries. Any such indenture, loan or debt agree-
ment may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
A director, officer, employee, stockholder or incor-
porator, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason
of such obligations or their creations. Each Securityholder by
accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 12.11. Successors.
All agreements of the Company and each Subsidiary
Guarantor in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this
Indenture or in the Securities shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any
way be affected or impaired thereby, it being intended that all
of the provisions hereof shall be enforceable to the full
extent permitted by law.
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SECTION 12.14. No Violation.
Notwithstanding the provisions of this Indenture, in
no event shall any transaction, agreement, payment or other
event to be consummated, entered into or made in connection
with the Acquisition or any financing thereof (including with-
out limitation the transaction referred to in Section 5.01(c))
be considered a violation of any provision of this Indenture or
constitute a Change of Control hereunder.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corpo-
rate seals to be hereunto affixed and attested, all as of the
date first written above.
Dated: January , 1995
FOOD 4 LESS SUPERMARKETS, INC.
By: ____________________________
Name:
Title:
Attest: ___________________
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By: ____________________________
Name:
Title:
Attest: ____________________
SUBSIDIARY GUARANTORS:
CALA CO.
CALA FOODS, INC.
BELL MARKETS, INC.
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
ALPHA BETA COMPANY
FOOD 4 LESS OF CALIFORNIA, INC.
FALLEY'S, INC.
BAY AREA WAREHOUSE STORES, INC.
FOOD 4 LESS MERCHANDISING, INC.
FOOD 4 LESS GM, INC.
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By: ____________________________
Name:
(for each of the above-
listed Subsidiary Guarantors)
Attest: _____________________
(for each of the
above-listed
Subsidiary Guarantors)
101
EXHIBIT A
[FORM OF NOTE]
FOOD 4 LESS SUPERMARKETS, INC.
_____% Senior Notes
due 2004
No. $
FOOD 4 LESS SUPERMARKETS, INC., a Delaware corpora-
tion (the "Company", which term includes any successor corpora-
tion), for value received promises to pay to
or registered assigns, the principal sum of Dollars, on
, 2004.
Interest Payment Dates: and .
Record Dates: and .
Reference is made to the further provisions of this
Security contained herein, which will for all purposes have the
same effect as if set forth at this place.
102
IN WITNESS WHEREOF, the Company has caused this Secu-
rity to be signed manually or by facsimile by its duly autho-
rized officers.
Dated:
Attest: FOOD 4 LESS SUPERMARKETS, INC.
By:
- -------------------------- --------------------------
Name: Name:
Title: Title:
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103
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By_______________________________
Authorized Signatory
A-3
104
FOOD 4 LESS SUPERMARKETS, INC.
_____% Senior Notes
due 2004
1. Interest.
FOOD 4 LESS SUPERMARKETS, INC., a Delaware corpora-
tion (the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The
Company will pay interest semi-annually on February 1 and
August 1 of each year (the "Interest Payment Date"), commencing
August 1, 1995. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance of the Secu-
rities. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal
and interest on overdue installments of interest, to the extent
lawful, at a rate equal to the rate of interest otherwise pay-
able on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities
(except defaulted interest) to the persons who are the regis-
tered Holders at the close of business on the Record Date imme-
diately preceding the Interest Payment Date even if the Securi-
ties are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by wire
transfer of Federal funds, or interest by its check payable in
such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the
Holder's registered address. Notwithstanding the foregoing,
the Company shall pay or cause to be paid all amounts payable
with respect to non-DTC eligible Securities by wire transfer of
Federal funds to the account of the Holders of such Securities.
3. Paying Agent and Registrar.
Initially, NorWest Bank Minnesota, N.A. (the "Trus-
tee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without
notice to the Holders. The Company or any of its Subsidiaries
A-4
105
may, subject to certain exceptions, act as Paying Agent, Regis-
trar or co-Registrar.
4. Indenture and Guarantees.
The Company issued the Securities under an Indenture,
dated as of , 1995 (the "Indenture"), among the Com-
pany, the Subsidiary Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless other-
wise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code
Secs. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture
and said Act for a statement of them. The Securities are gen-
eral unsecured obligations of the Company limited in aggregate
principal amount to $575,000,000. Payment on each Security is
guaranteed on a senior subordinated basis, jointly and sever-
ally, by the Subsidiary Guarantors pursuant to Article Ten of
the Indenture.
5. Optional Redemption.
On or after February 1, 2000 the Securities may be
redeemed in whole at any time or in part from time to time, at
the option of the Company, at a redemption price equal to the
applicable percentage of the principal amount thereof set forth
below, together with accrued and unpaid interest to the Redemp-
tion Date, if redeemed during the 12 months commencing on
February 1 in the years set forth below:
Year Percentage
---- ----------
2000 ................. - %
2001 ................. - %
2002 ................. - %
2003 and thereafter .. 100%
In addition, on or prior to February 1, 1998, the
Company may, at its option, use the net cash proceeds of one or
more Public Equity Offerings to redeem up to an aggregate of
35% of the principal amount of the Securities originally
issued, at a redemption price equal to % of the principal
amount thereof plus accrued and unpaid interest, if any, to the
redemption date.
A-5
106
The documents evidencing Senior Indebtedness will
restrict the Company's ability to optionally redeem the
Securities.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered
address. In order to effect a redemption with the proceeds of
a Public Equity Offering, the Company shall send the redemption
notice not later than 60 days after the consummation of such
Public Equity Offering. Securities in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after
any Redemption Date, if monies for the redemption of the Secu-
rities called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then,
unless the Company defaults in the payment of such Redemption
Price, the Securities called for redemption will cease to bear
interest and the only right of the Holders of such Securities
will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each
Holder shall have the right to require the repurchase of such
Holder's Securities pursuant to a Change of Control Offer at a
purchase price equal to 101% of the principal amount thereof
plus accrued interest, if any, to the date of purchase.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required
to apply the net proceeds from Asset Sales to the repayment of
Pari Passu Indebtedness, to make Related Business Investments,
an investment in properties and assets that replace the proper-
ties and assets that are the subject of such Asset Sale, an
investment in properties and assets that will be used in the
business of the Company and its Subsidiaries existing on the
Issue Date or in a business reasonably related thereto or to
purchase in a Net Proceeds Offer (at a price equal to 100% of
the aggregate principal amount thereof, plus accrued interest
to the date of purchase) such aggregate principal amount of
Securities which, when added to the accrued interest thereon,
shall be equal to the net proceeds required to be applied
thereto.
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9. Denominations; Transfer; Exchange.
The Securities are in registered form, without cou-
pons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Securities or por-
tions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated
as the owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying
Agents will pay the money back to the Company at its request.
After that, all liability of the Trustee and such Paying Agents
with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee
U.S. Legal Tender or U.S. Government Obligations sufficient to
pay the principal of and interest on the Securities to redemp-
tion or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Securities (includ-
ing the financial covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the
Securities and the Guarantees may be amended or supplemented
with the written consent of the Holders of at least a majority
in aggregate principal amount of the Securities then outstand-
ing, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Hold-
ers of a majority in aggregate principal amount of the Securi-
ties then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Inden-
ture or the Securities to, among other things, cure any ambigu-
ity, defect or inconsistency, provide for uncertificated
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Securities in addition to or in place of certificated Securi-
ties, comply with Article Five or Section 10.05 of the Inden-
ture, or comply with any requirements of the SEC in connection
with the qualification of the Indenture under the TIA, or make
any other change that does not adversely affect the rights of
any Holder of a Security.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness or Liens, make payments
in respect of its Capital Stock and merge or consolidate with
any other person and sell, lease, transfer or otherwise dispose
of substantially all of its properties or assets. The limita-
tions are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on
compliance with such limitations.
15. Successors.
When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the prede-
cessor will be released from those obligations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Secu-
rities to be due and payable immediately in the manner and with
the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as pro-
vided in the Indenture. The Trustee may require indemnity sat-
isfactory to it before it enforces the Indenture or the Securi-
ties. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Securities then outstanding
may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of Securities notice of
any continuing Default or Event of Default (except a Default in
payment of principal or interest, including an Accelerated Pay-
ment) if it determines that withholding notice is in their
interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Securi-
ties and may otherwise deal with the Company, its Subsidiaries
or their respective Affiliates as if it were not the Trustee.
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18. No Recourse Against Others.
No stockholder, director, officer, employee or incor-
porator, as such, of the Company shall have any liability for
any obligation of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of a Secu-
rity by accepting a Security waives and releases all such lia-
bility. The waiver and release are part of the consideration
for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authen-
tication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a
Holder of a Security or an assignee, such as: TEN COM (= ten-
ants 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).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Com-
mittee on Uniform Security Identification Procedures, the Com-
pany will cause CUSIP numbers to be printed on the Securities
immediately prior to the qualification of the Indenture under
the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
The Company will furnish to any Holder of a Security
upon written request and without charge a copy of the Inden-
ture. Requests may be made to: Food 4 Less Supermarkets,
Inc., c/o The Yucaipa Companies, 10000 Santa Monica Boulevard,
Fifth Floor, Los Angeles, California 90067, Attn: Mark Resnik.
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110
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR GUARANTEE
The Subsidiary Guarantors (as defined in the Inden-
ture (the "Indenture") referred to in the Security upon which
this notation is endorsed and each hereinafter referred to as a
"Subsidiary Guarantor," which term includes any successor per-
son under the Indenture) have unconditionally guaranteed on a
senior unsecured basis (such guarantee by each Subsidiary Guar-
antor being referred to herein as the "Guarantee") (i) the due
and punctual payment of the principal of and interest on the
Securities, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue princi-
pal and interest, if any, on the Securities, to the extent law-
ful, and the due and punctual performance of all other obliga-
tions of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment
or renewal of any Securities or any of such other obligations,
that the same will be promptly paid in full when due or per-
formed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor to the
Holders of Securities and to the Trustee pursuant to the Guar-
antee and the Indenture are expressly set forth and are senior
unsecured obligations of each such Subsidiary Guarantor, to the
extent and in the manner provided, in Article Ten of the Inden-
ture, and reference is hereby made to such Indenture for the
precise terms of the Guarantee therein made.
No stockholder, officer, director or incorporator, as
such, past, present or future, of any Subsidiary Guarantor
shall have any liability under the Guarantee by reason of his
or its status as such stockholder, officer, director or
incorporator.
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111
The Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the
Securities upon which the Guarantee is noted shall have been
executed by the Trustee under the Indenture by the manual sig-
nature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
CALA CO.
CALA FOODS, INC.
BELL MARKETS, INC.
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
ALPHA BETA COMPANY
FOOD 4 LESS OF CALIFORNIA, INC.
FALLEY'S, INC.
FOOD 4 LESS MERCHANDISING, INC.
BAY AREA WAREHOUSE STORES, INC.
FOOD 4 LESS GM, INC.
By:______________________________
Name:
(for each of the above-listed
Subsidiary Guarantors)
By:______________________________
Name:
(for each of the above-listed
Subsidiary Guarantors)
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112
[FORM OF ASSIGNMENT]
I or we assign this Security to
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_______________________________________
and irrevocably appoint _______________________ agent to trans-
fer 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 front of this Security)
Signature Guarantee:__________________________________________
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113
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, check the appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Secu-
rity purchased by the Company pursuant to Section 4.15 or
Section 4.16 of the Indenture, state the amount:
$
Date:__________ Signature:____________________________
(Sign exactly as your name
appears on the front of
this Security)
Signature Guarantee:______________________________________
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