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EXHIBIT 4.2
_____________________________________________________________________________
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
________________
$145,000,000
13.75% Senior Subordinated Notes
due 2005
_____________________________________________________________________________
2
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
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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
SUBORDINATION
Section 4.01 Securities Subordinated to Senior
Indebtedness............................
Section 4.02 Suspension of Payment When Senior
Indebtedness in Default.................
Section 4.03 Securities Subordinated to Prior
Payment of All Senior Indebted-
ness on Dissolution, Liquidation
or Reorganization of Company............
Section 4.04 Securityholders to Be Subrogated
to Rights of Holders of Senior
Indebtedness............................
Section 4.05 Obligations of the Company
Unconditional...........................
Section 4.06 Trustee Entitled to Assume Pay-
ments Not Prohibited in Absence
of Notice...............................
Section 4.07 Application by Trustee of Assets
Deposited with It.......................
Section 4.08 No Waiver of Subordination
Provisions..............................
Section 4.09 Securityholders Authorize Trustee
to Effectuate Subordination of
Securities..............................
Section 4.10 Right of Trustee to Hold Senior
Indebtedness............................
Section 4.11 No Suspension of Remedies.................
Section 4.12 No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness..........
ARTICLE FIVE
COVENANTS
Section 5.01 Payment of Securities.....................
Section 5.02 Maintenance of Office or Agency...........
Section 5.03 Limitation on Restricted Payments.........
Section 5.04 Corporate Existence.......................
Section 5.05 Payment of Taxes and Other Claims.........
Section 5.06 Maintenance of Properties and
Insurance...............................
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Section 5.07 Compliance Certificate; Notice of
Default..................................
Section 5.08 Compliance with Laws.......................
Section 5.09 SEC Reports................................
Section 5.10 Waiver of Stay, Extension or Usury
Laws.....................................
Section 5.11 Limitation on Transactions with
Affiliates...............................
Section 5.12 Limitation on Incurrences of Addi-
tional Indebtedness......................
Section 5.13 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.............................
Section 5.14 Limitation on Liens........................
Section 5.15 Limitation on Change of Control............
Section 5.16 Limitation on Asset Sales..................
Section 5.17 Guarantees of Certain Indebtedness.........
Section 5.18 Limitation on Preferred Stock of
Subsidiaries.............................
Section 5.19 Limitation on Other Senior Subor-
dinated Indebtedness.....................
ARTICLE SIX
SUCCESSOR CORPORATION
Section 6.01 Limitation on Mergers and Certain
Other Transactions.......................
Section 6.02 Successor Corporation Substituted..........
ARTICLE SEVEN
DEFAULT AND REMEDIES
Section 7.01 Events of Default..........................
Section 7.02 Acceleration...............................
Section 7.03 Other Remedies.............................
Section 7.04 Waiver of Past Defaults....................
Section 7.05 Control by Majority........................
Section 7.06 Limitation on Suits........................
Section 7.07 Rights of Holders to Receive
Payment..................................
Section 7.08 Collection Suit by Trustee.................
Section 7.09 Trustee May File Proofs of Claim...........
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Section 7.10 Priorities..................................
Section 7.11 Right and Remedies Cumulative...............
Section 7.12 Delay or Omission Not Waiver................
Section 7.13 Undertaking for Costs.......................
ARTICLE EIGHT
TRUSTEE
Section 8.01 Duties of Trustee...........................
Section 8.02 Rights of Trustee...........................
Section 8.03 Individual Rights of Trustee................
Section 8.04 Trustee's Disclaimer........................
Section 8.05 Notice of Default...........................
Section 8.06 Reports by Trustee to Holders...............
Section 8.07 Compensation and Indemnity..................
Section 8.08 Replacement of Trustee......................
Section 8.09 Successor Trustee by Merger, Etc............
Section 8.10 Eligibility; Disqualification...............
Section 8.11 Preferential Collection of Claim
Against Company...........................
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Termination of the Company's
Obligations...............................
Section 9.02 Legal Defeasance and Covenant
Defeasance................................
Section 9.03 Application of Trust Money..................
Section 9.04 Repayment to the Company or Sub-
sidiary Guarantors........................
Section 9.05 Reinstatement...............................
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders..................
Section 10.02 With Consent of Holders.....................
Section 10.03 Compliance with TIA.........................
Section 10.04 Revocation and Effect of Consents...........
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Section 10.05 Notation on or Exchange of
Securities................................
Section 10.06 Trustee to Sign Amendments, Etc.............
ARTICLE ELEVEN
GUARANTEE
Section 11.01 Unconditional Guarantee.....................
Section 11.02 Subordination of Guarantee..................
Section 11.03 Severability................................
Section 11.04 Release of a Subsidiary Guarantor...........
Section 11.05 Limitation of Subsidiary Guaran-
tor's Liability...........................
Section 11.06 Subsidiary Guarantors May Consoli-
date, etc., on Certain Terms..............
Section 11.07 Contribution................................
Section 11.08 Waiver of Subrogation.......................
Section 11.09 Execution of Guarantee......................
Section 11.10 Waiver of Stay, Extension or Usury
Laws......................................
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 12.01 Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness..........
Section 12.02 Suspension of Guarantee Obliga-
tions When Guarantor Senior
Indebtedness in Default...................
Section 12.03 Guarantee Obligations Subordinated
to Prior Payment of All Guaran-
tor Senior Indebtedness on Dis-
solution, Liquidation or Reor-
ganization of Such Subsidiary
Guarantor.................................
Section 12.04 Holders of Guarantee Obligations
To Be Subrogated to Rights of
Holders of Guarantor Senior
Indebtedness..............................
Section 12.05 Obligations of the Subsidiary
Guarantors Unconditional..................
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Page
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Section 12.06 Trustee Entitled to Assume Pay-
ments Not Prohibited in Absence
of Notice.................................
Section 12.07 Application by Trustee of Assets
Deposited with It.........................
Section 12.08 No Waiver of Subordination
Provisions................................
Section 12.09 Holders Authorize Trustee to
Effectuate Subordination of
Guarantee Obligations.....................
Section 12.10 Right of Trustee to Hold Guarantor
Senior Indebtedness.......................
Section 12.11 No Suspension of Remedies...................
Section 12.12 No Fiduciary Duty of Trustee to
Holders of Guarantor Senior
Indebtedness..............................
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 TIA Controls................................
Section 13.02 Notices.....................................
Section 13.03 Communications by Holders with
Other Holders.............................
Section 13.04 Certificate and Opinion as to Con-
ditions Precedent.........................
Section 13.05 Statements Required in Certificate
or Opinion................................
Section 13.06 Rules by Trustee, Paying Agent,
Registrar.................................
Section 13.07 Legal Holidays..............................
Section 13.08 Governing Law...............................
Section 13.09 No Adverse Interpretation of Other
Agreements................................
Section 13.10 No Recourse Against Others..................
Section 13.11 Successors..................................
Section 13.12 Duplicate Originals.........................
Section 13.13 Severability................................
Section 13.14 No Violation................................
Signatures
Exhibit A - Form of Note
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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 13.75% Senior Subordinated Notes
due 2005:
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 11.07.
"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 5.11, the term "Affiliate"
shall include any person who, as a result of any transaction
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described in Section 5.11, would become an Affiliate. Notwith-
standing the foregoing, the term "Affiliate," with respect to
the Company and its Subsidiaries, shall not include BT Securi-
ties Corporation or any of its Affiliates.
"Affiliate Transaction" shall have the meaning pro-
vided in Section 5.11.
"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 5.15.
"Change of Control Offer" shall have the meaning pro-
vided in Section 5.15.
"Change of Control Payment Date" shall have the mean-
ing provided in Section 5.15.
"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.
"Designated Senior Indebtedness" means (i) in the
event any Indebtedness is outstanding under the Credit Agree-
ment, all Senior Indebtedness under the Credit Agreement and
(ii) if no Indebtedness is outstanding under the Credit Agree-
ment, any other issue of Senior Indebtedness which (a) at the
time of determination is equal to or greater than $50 million
in aggregate principal amount and (b) is specifically desig-
nated in the instrument evidencing such Senior Indebtedness as
"Designated Senior Indebtedness" by the Company.
"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
16
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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.
"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 7.01.
"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.
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"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
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.
18
-9-
"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,
of FFL and Holdings, Inc.
"Food 4 Less" means Food 4 Less Supermarkets, Inc. a
Delaware corporation, and its successors, including, without
limitation, Ralphs Supermarkets, Inc. (to be renamed Ralphs
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 Eleven and any additional guar-
antee of the Securities executed by any Subsidiary of the
Company.
"Guarantee Obligations" shall have the meaning pro-
vided in Section 12.01.
"Guarantor Payment Blockage Period" shall have the
meaning provided in Section 12.02.
"Guarantor Senior Indebtedness" means, with respect
to any Subsidiary Guarantor, the principal of, premium, if any,
and interest on any Indebtedness of such Subsidiary Guarantor,
whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides
that such Indebtedness shall not be senior in right of payment
to the Guarantee of such Subsidiary Guarantor. Without limit-
ing the generality of the foregoing, "Guarantor Senior
19
-10-
Indebtedness" shall include the principal of, premium, if any,
and interest on all obligations of every nature of such
Subsidiary Guarantor from time to time owed to the lenders under
the Credit Agreement, including, without limitation, the Letter
of Credit Obligations and principal of and interest on, and all
fees, indemnities and expenses payable under the Credit Agree-
ment. Notwithstanding the foregoing, "Guarantor Senior Indebt-
edness" shall not include (a) Indebtedness evidenced by the
Guarantee of such Subsidiary Guarantor, (b) Indebtedness that
is expressly subordinate or junior in right of payment to any
Indebtedness of such Subsidiary Guarantor, (c) Indebtedness
which, when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without
recourse to such Subsidiary Guarantor, (d) Indebtedness which
is represented by Disqualified Capital Stock, (e) obligations
for goods, materials or services purchased in the ordinary
course of business or obligations consisting of trade payables,
(f) Indebtedness of or amounts owed by such Subsidiary Guaran-
tors for compensation to employees or for services rendered to
such Subsidiary Guarantors, (g) any liability for federal,
state, local or other taxes owed or owing by such Subsidiary
Guarantor, (h) Indebtedness of such Subsidiary Guarantor repre-
senting a guarantee of Subordinated Indebtedness or Pari Passu-
Indebtedness of the Company or any other Subsidiary Guarantor,
(i) Indebtedness of such Subsidiary Guarantor to a Subsidiary
of the Company and (j) that portion of any Indebtedness which
is incurred by such Subsidiary Guarantor in violation of this
Indenture.
"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
otherwise, 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 instru-
ments or letters of credit or representing the balance deferred
and
20
-11-
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
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
21
-12-
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
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
22
-13-
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.
"Legal Holiday" shall have the meaning provided in
Section 13.07.
"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, 2005.
"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.
surviving 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
23
-14-
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.
"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.
"Non-payment Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more
persons to act to accelerate the maturity of any Designated
Senior Indebtedness or Significant Senior Indebtedness.
"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
24
-15-
and either an Assistant Treasurer or an Assistant Secretary of
such person and otherwise complying with the requirements of
Sections 13.04 and 13.05.
"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
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.
25
-16-
"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 13.04 and 13.05.
Unless otherwise required by the Trustee, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
"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 Three
and Nine and Sections 5.15 and 5.16, the Paying Agent shall not
be the Company or an Affiliate of the Company.
"Payment Blockage Notice" shall have the meaning pro-
vided in Section 4.02.
"Payment Blockage Period" shall have the meaning pro-
vided in Section 4.02.
"Payment Default" means any default in the payment of
principal, premium, if any, or interest on any Designated
Senior Indebtedness or Significant Senior Indebtedness beyond
any applicable grace period with respect thereto.
"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.
26
-17-
"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 5.16 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
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 5.16, (b)
Indebtedness of the Company or a Subsidiary Guarantor owed to
and held by the Company or a Subsidiary Guarantor, (c) Indebt-
edness 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 Com-
pany 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 incurrence 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 aggre-
gate, 3% of the aggregate net sales of the Company and its Sub-
sidiaries during the most recently completed twelve fiscal
quarter period on a consolidated basis (calculated 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
27
-18-
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 Foreign Exchange
Agreements and Interest Swap Obligations entered into with
respect to Indebtedness in a notional amount not exceeding the
aggregate principal amount of Indebtedness outstanding or com-
mitted under the Credit Agreement at the date of such incur-
rence and otherwise permitted to be outstanding pursuant to
Section 5.12; (f) guarantees incurred in the ordinary course of
business, by the Company or a Subsidiary, of Indebtedness of
any other person in the aggregate not to exceed $25 million at
any time outstanding; (g) guarantees by the Company or a Sub-
sidiary Guarantor of Indebtedness incurred by a wholly-owned
Subsidiary Guarantor so long as the incurrence of such Indebt-
edness 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
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 5.16 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
28
-19-
existing on the Issue Date, (v) Investments specifically per-
mitted by and made in accordance with Section 5.11, (vi)
Investments by Subsidiary Guarantors in other Subsidiary Guar-
antors and Investments by Subsidiaries which are not Subsidiary
Guarantors in other Subsidiaries which are not Subsidiary Guar-
antors and (vii) additional Investments in an aggregate 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
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
29
-20-
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
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;
(xvi) Liens on assets of the Company securing Indebtedness
which would constitute Senior Indebtedness but for the provi-
sions of clause (c) in the third sentence of the definition of
"Senior Indebtedness" and Liens on assets of a Subsidiary Guar-
antor securing Indebtedness which would constitute Guarantor
Senior Indebtedness but for the provisions of clause (c) in the
third sentence of the definition of "Guarantor Senior Indebted-
ness"; and (xvii) additional Liens securing Indebtedness in an
aggregate principal amount at any one time outstanding not
exceeding the sum of (i) $25 million and (ii) 10% of the
aggregate Consolidated Net Income of the Company earned subse-
quent 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,
30
-21-
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
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 Subordinated Reorganization Securities"
means securities of the Company issued in a plan of reorganiza-
tion in a case under the Bankruptcy Law relating to the Company
31
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which constitutes either (y) Capital Stock (other than Disqual-
ified Capital Stock with the reference to "Maturity Date" in
the definition of such term modified to relate to the final
stated maturity of any debt securities issued in such plan of
reorganization to the holders of Designated Senior Indebtedness
("Senior Reorganization Securities")) or (z) debt securities of
the Company which (i) are unsecured, (ii) have no scheduled
mandatory amortization thereon prior to the final stated matur-
ity of the Senior Reorganization Securities and (iii) are sub-
ordinated in right of payment to the Senior Reorganization
Securities to at least the same extent as the Securities are
subordinated to Designated Senior Indebtedness.
"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 or 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
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)
32
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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.
"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.
"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 5.03.
"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,
33
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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
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
34
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service 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
expenditure 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 conducted 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-substance or legal defeasance) or other acquisition or
retirement for value, directly or indirectly, by the Company or
a Subsidiary, 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.
"Securities" means the Company's 13.75% Senior Subor-
dinated Notes due 2005, as amended or supplemented from time to
time in accordance with the terms hereof, that are issued pur-
suant 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 F4L Notes" means (i) the % (subject to
adjustment) Senior Notes due 2004 of the Company to be issued
on the Merger Date and (ii) the 10.45% Senior Notes due 2000 of
the Company.
35
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"Senior Indebtedness" means the principal of, pre-
mium, if any, and interest on any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides
that such Indebtedness shall not be senior in right of payment
to the Securities. Without limiting the generality of the
foregoing, "Senior Indebtedness" shall include (x) the princi-
pal of, premium, if any, and interest on all obligations of
every nature of the Company from time to time owed to the lend-
ers under the Credit Agreement, including, without limitation,
the Letter of Credit Obligations and principal of and interest
on and all fees, indemnities, and expenses payable under the
Credit Agreement and (y) interest accruing thereon subsequent
to the occurrence of any Event of Default specified in clause
(vi) or (vii) of Section 7.01 relating to the Company, whether
or not the claim for such interest is allowed under any appli-
cable Bankruptcy Code. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (a) Indebtedness evidenced by
the Securities, (b) Indebtedness that is expressly subordinate
or junior in right of payment to any Indebtedness of the Com-
pany, (c) Indebtedness which, when incurred and without respect
to any election under Section 1111(b) of Title 11, United
States Code, is without recourse to the Company, (d) Indebted-
ness which is represented by Disqualified Capital Stock, (e)
obligations for goods, materials or services purchased in the
ordinary course of business or obligations consisting of trade
payables, (f) Indebtedness of or amounts owed by the Company
for compensation to employees or for services rendered to the
Company, (g) any liability for federal, state, local or other
taxes owed or owing by the Company, (h) Indebtedness of the
Company to a Subsidiary of the Company, and (i) that portion of
any Indebtedness which is incurred by the Company in violation
of this Indenture.
"Significant Senior Indebtedness" means Senior
Indebtedness which, at the time of determination, is equal to
or greater than $50 million in aggregate principal amount.
"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.
36
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"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
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
Securities 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,
37
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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.,
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 Sec-
tion 5.17, 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 10.03.
"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.
38
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"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 9.02.
"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.
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:
39
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(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
(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
40
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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 11.09.
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 conclu-
sive 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
$145,000,000 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 $145,000,000, 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
authenticating agent has the same rights as an Agent to deal
with the Company 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
41
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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 Nine and Sections
5.15 and 5.16, 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, subject to Article
Four and Article Twelve, 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 principal 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 making any such pay-
ment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust
fund, subject to Article Four and Article Twelve. 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
42
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and the Trustee may at any time during the continuance of any
payment Default, upon written 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 liability 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
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, 5.15,
5.16 or 10.05). 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
43
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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
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 unless,
pursuant to the provisions of Article Four and Article Twelve,
44
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the Paying Agent is unable to make payments on the Securities
to the Holders thereof.
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.
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.
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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 7.10, 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.
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. 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.
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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.
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. 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 (a) the Company defaults in making
the redemption payment or (b) such redemption payment is
prohibited pursuant to Article Four or Article Twelve
hereof or otherwise, interest on Securities called for
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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;
(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
unless prohibited pursuant to Article Four or Article Twelve or
otherwise pursuant to this Indenture. Securities that are
redeemed by the Company or that are purchased by the Company
pursuant to a Net Proceeds Offer as described in Section 5.16
or pursuant to a Change of Control Offer as described in Sec-
tion 5.15 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
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obligations to the Trustee pursuant to Article Eight and
Article Twelve hereof.
If the Company complies with the preceding paragraph
and payment of the Securities called for redemption is not pro-
hibited under Article Four or Article Twelve or otherwise,
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.
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
SUBORDINATION
SECTION 4.01. Securities Subordinated to Senior Indebtedness.
Anything herein to the contrary notwithstanding, the
Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the prin-
cipal of, premium, if any, and interest on the Securities is
subordinated, to the extent and in the manner provided in this
Article Four, to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness.
This Article Four shall constitute a continuing offer
to all persons who become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the bene-
fit of the holders of Senior Indebtedness and such holders are
made obligees hereunder and any one or more of them may enforce
such provisions.
SECTION 4.02. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 4.03 shall be applicable, upon
(1) the occurrence of a Payment Default and (2) receipt by the
Trustee and the Company from the Representatives of written
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notice of such occurrence, then no payment (other than payments
previously made pursuant to Article Nine hereof) or distribu-
tion of any assets of the Company of any kind or character
shall be made by the Company on account of principal of, pre-
mium, if any, or interest on the Securities or on account of
the purchase or redemption or other acquisition of Securities
unless and until such Payment Default shall have been cured or
waived or shall have ceased to exist or such Senior Indebted-
ness as to which such Payment Default relates shall have been
discharged or paid in full, after which the Company shall
resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 4.03 shall be applicable, upon
(1) the occurrence of a Non-payment Default and (2) the earlier
of (i) receipt by the Trustee and the Company from the Senior
Representatives of written notice of such occurrence stating
that such notice is a "Payment Blockage Notice" pursuant to
Section 4.02(b) of this Indenture or (ii) if such Non-payment
Default results from the acceleration of the Securities, the
date of such acceleration, no payment (other than payments pre-
viously made pursuant to Article Nine hereof) or distribution
of any assets of the Company of any kind or character shall be
made by the Company on account of any principal of, premium, if
any, or interest on the Securities or on account of the pur-
chase or redemption or other acquisition of Securities for a
period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee and the Company of the written notice of
a Non-payment Default from the Representative or the date of
the acceleration referred to in clause (ii) above, as the case
may be, unless and until the earlier to occur of the following
events: (w) 179 days shall have elapsed since receipt of such
notice or the date of the acceleration of the Securities, as
the case may be (provided such Designated Senior Indebtedness
shall theretofore not have been accelerated), (x) such Non-pay-
ment Default shall have been cured or waived or shall have
ceased to exist, (y) such Designated Senior Indebtedness shall
have been discharged or paid in full or (z) such Payment Block-
age Period shall have been terminated by written notice to the
Company or the Trustee from the Representative initiating such
Payment Blockage Period or the holders of at least a majority
in principal amount of such issue of Designated Senior Indebt-
edness initiating such Payment Blockage Period, after which, in
the case of clause (w), (x), (y) or (z), the Company shall
resume making any and all required payments in respect of the
Securities, including any missed payments. Notwithstanding any
other provision of this Indenture, only one Payment Blockage
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Period may be commenced within any consecutive 365-day period
and no Non-payment Default with respect to Designated Senior
Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period shall be, or shall
be made, the basis for the commencement of a second Payment
Blockage Period, whether or not within a period of 365 consecu-
tive days, unless such event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
In no event shall a Payment Blockage Period extend beyond 179
days from the date of the receipt of the written notice by the
Trustee of a Non-payment Default or the date of the accelera-
tion initiating such Payment Blockage Period, as the case may
be.
(c) In the event that, notwithstanding the fore-
going, the Trustee or the Holder of any Security shall have
received any payment prohibited by the foregoing provisions of
this Section 4.02, then and in such event such payment shall be
paid over and delivered forthwith to the Representatives or as
a court of competent jurisdiction shall direct.
SECTION 4.03. Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company.
Upon any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, upon any dissolution, winding-up, total or partial
liquidation or reorganization of the Company (including,
without limitation, in bankruptcy, insolvency or receivership
proceedings or upon any assignment for the benefit of creditors
or any other marshalling of assets and liabilities of the Com-
pany and whether voluntary or involuntary):
(a) the holders of all Senior Indebtedness shall
first be entitled to receive payments in full in cash or
Cash Equivalents of all amounts payable under Senior
Indebtedness (including, with respect to Designated Senior
Indebtedness, any interest accruing after the commencement
of any such proceeding at the rate specified in the appli-
cable Designated Senior Indebtedness whether or not inter-
est is an allowed claim enforceable against the Company in
any such proceeding) before the Holders will be entitled
to receive any payment with respect to the Securities
(excluding Permitted Subordinated Reorganization Securi-
ties), and until all Obligations with respect to the
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Senior Indebtedness are paid in full in cash or Cash
Equivalents, any distribution to which the Holders would
be entitled (excluding Permitted Subordinated Reorganiza-
tion Securities) shall be made to the holders of Senior
Indebtedness; provided, however, that no payment on any
Guarantee shall constitute payment on behalf of the Com-
pany for purposes of this Section 4.03(a);
(b) any payment or distribution of assets of the
Company of any kind or character, whether in cash, prop-
erty or securities, to which the Holders or the Trustee on
behalf of the Holders would be entitled (excluding Permit-
ted Subordinated Reorganization Securities) except for the
provisions of this Article Four, shall be paid by the
liquidating trustee or agent or other person making such a
payment or distribution, directly to the holders of Senior
Indebtedness or their Representative, ratably according to
the respective amounts of Senior Indebtedness remaining
unpaid held or represented by each, until all Senior
Indebtedness remaining unpaid shall have been paid in full
in cash or Cash Equivalents after giving effect to any
concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(c) in the event that, notwithstanding the fore-
going, any payment or distribution of assets of the Com-
pany of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or the
Holders or any Paying Agent on account of principal of,
premium, if any, or interest on the Securities (excluding
Permitted Subordinated Reorganization Securities) before
all Senior Indebtedness is paid in full in cash or Cash
Equivalents, such payment or distribution (subject to the
provisions of Sections 4.06 and 4.07) shall be received,
segregated from other funds, and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of,
and shall immediately be paid over to, the holders of
Senior Indebtedness or their Representative, ratably
according to the respective amounts of Senior Indebtedness
held or represented by each, until all Senior Indebtedness
remaining unpaid shall have been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of Senior
Indebtedness. Notwithstanding anything to the contrary
contained herein, in the absence of its gross negligence
or wilful misconduct, the Trustee shall have no duty to
collect or retrieve monies previously paid by it in good
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faith; provided that this sentence shall not affect the
obligation of any other party receiving such payment to
hold such payment for the benefit of, and to pay over such
payment over to, the holders of Senior Indebtedness or
their Representative.
The consolidation of the Company with, or the merger
of the Company with or into, another person or the liquidation
or dissolution of the Company following the conveyance, trans-
fer or lease of its properties and assets substantially as an
entirety to another person upon the terms and conditions set
forth in Article Six hereof shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of
the Company for the purposes of this Article Four if the person
formed by such consolidation or the surviving entity of such
merger or the person which acquires by conveyance, transfer or
lease such properties and assets substantially as an entirety,
as the case may be, shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the condi-
tions set forth in such Article Six.
The Company shall give prompt notice to the Trustee
prior to any dissolution, winding-up, total or partial liquida-
tion or reorganization (including, without limitation, in bank-
ruptcy, insolvency, or receivership proceedings or upon any
assignment for the benefit of creditors or any other marshal-
ling of the Company's assets and liabilities).
SECTION 4.04. Securityholders to Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash Equiv-
alents of all Senior Indebtedness, the Holders of Securities
shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of
the Company applicable to the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full in cash,
and for the purpose of such subrogation no payments or distri-
butions to the holders of Senior Indebtedness by or on behalf
of the Company, or by or on behalf of the Holders by virtue of
this Article Four, which otherwise would have been made to the
Holders, shall, as between the Company and the Holders, be
deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of
this Article Four are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one
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hand, and the holders of Senior Indebtedness, on the other
hand.
If any payment or distribution to which the Holders
would otherwise have been entitled but for the provisions of
this Article Four shall have been applied, pursuant to the pro-
visions of this Article Four, to the payment of all amounts
payable under the Senior Indebtedness, then the Holders shall
be entitled to receive from the holders of such Senior Indebt-
edness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash or Cash Equivalents.
SECTION 4.05. Obligations of the Company Unconditional.
Nothing contained in this Article Four or elsewhere
in this Indenture or in the Securities is intended to or shall
impair, as between the Company and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to
the Holders the principal of and interest on the Securities as
and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the rela-
tive rights of the Holders and creditors of the Company other
than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exer-
cising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any,
under this Article Four, of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any pay-
ment or distribution of assets or securities of the Company
referred to in this Article Four, the Trustee, subject to the
provisions of Sections 8.01 and 8.02, and the Holders shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating
trustee or agent or other person making any payment or distri-
bution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such pay-
ment or distribution, the holders of Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or pay-
able thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Four.
Nothing in this Section 4.05 shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 8.07.
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SECTION 4.06. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee unless and until the
Trustee or any Paying Agent shall have received written notice
thereof from the Company or from one or more holders of Senior
Indebtedness or from any Representative therefor and, prior to
the receipt of any such notice, the Trustee, subject to the
provisions of Sections 8.01 and 8.02, shall be entitled in all
respects conclusively to assume that no such fact exists.
SECTION 4.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations
deposited in trust with the Trustee pursuant to and in accor-
dance with Section 9.02 shall be for the sole benefit of
Securityholders and, to the extent allocated for the payment of
Securities, shall not be subject to the subordination provi-
sions of this Article Four. Otherwise, any deposit of assets
or securities by or on behalf of the Company with the Trustee
or any Paying Agent (whether or not in trust) for the payment
of principal of or interest on any Securities shall be subject
to the provisions of this Article Four; provided that if prior
to the second Business Day preceding the date on which by the
terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation,
the payment of either principal of or interest on any Security)
the Trustee or such Paying Agent shall not have received with
respect to such assets the notice provided for in Section 4.06,
then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary received by it on or after such
date; provided, further, that no payment on any Guarantee shall
constitute payment on behalf of the Company for purposes of
this Section 4.07. The foregoing shall not apply to the Paying
Agent if the Company or any Subsidiary or Affiliate of the Com-
pany is acting as Paying Agent. Nothing contained in this
Section 4.07 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by this
Article Four.
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SECTION 4.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection
(a) of this Section 4.08, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securi-
ties and without impairing or releasing the subordination pro-
vided in this Article Four or the obligations hereunder of the
Holders of the Securities to the holders of Senior Indebted-
ness, do any one or more of the following: (1) change the man-
ner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebt-
edness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (3) release any person liable in any man-
ner for the collection or payment of Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the
Company and any other person; provided, however, that in no
event shall any such actions limit the right of the Holders of
the Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Seven hereof or to pursue
any rights or remedies hereunder or under applicable laws if
the taking of such action does not otherwise violate the terms
of this Indenture.
SECTION 4.09. Securityholders Authorize Trustee to
Effectuate Subordination of Securities.
Each Holder of the Securities by his acceptance
thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate
to effect the subordination provisions contained in this
Article Four, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency or receivership proceedings
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or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company) tending
towards liquidation or reorganization of the business and
assets of the Company, the immediate filing of a claim for the
unpaid balance of its or his Securities in the form required in
said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their Representative is
hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein con-
tained shall be deemed to authorize the Trustee or the holders
of Senior Indebtedness or their Representative to authorize or
consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composi-
tion affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior
Indebtedness or their Representative to vote in respect of the
claim of any Securityholder in any such proceeding.
SECTION 4.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights
set forth in this Article Four in respect of any Senior Indebt-
edness at any time held by it to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights
as such holder.
SECTION 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal
of or interest on the Securities by reason of any provision of
this Article Four shall not be construed as preventing the
occurrence of a Default or an Event of Default under Section
7.01.
Nothing contained in this Article Four shall limit
the right of the Trustee or the Holders of Securities to take
any action to accelerate the maturity of the Securities pursu-
ant to Article Seven or to pursue any rights or remedies here-
under or under applicable law, subject to the rights, if any,
under this Article Four of the holders, from time to time, of
Senior Indebtedness.
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SECTION 4.12. No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders (other than for its willful miscon-
duct or gross negligence) if it shall in good faith mistakenly
pay over or deliver to the Holders of Securities or the Company
or any other person, money or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article
Four or otherwise. Nothing in this Section 4.12 shall affect
the obligation of any person other than the Trustee to hold
such payment for the benefit of, and to pay such payment over
to, the holders of Senior Indebtedness or their Representative.
ARTICLE FIVE
COVENANTS
SECTION 5.01. 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; provided, however, that
U.S. Legal Tender held by the Trustee for the benefit of
holders of Senior Indebtedness or Guarantor Senior Indebtedness
or the payment of which to the Holders is prohibited pursuant
to the provisions of Article Four or Article Twelve hereof or
otherwise shall not be considered to be designated for the pay-
ment of any installment of principal or interest on the Securi-
ties within the meaning of this Section 5.01.
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 5.02. 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
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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 13.02.
SECTION 5.03. 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
Company could not incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 5.12 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 Subsid-
iary, 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
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declaration, (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,
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 5.03, 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 5.04. Corporate Existence.
Except as otherwise permitted by Article Six, 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
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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 5.05. 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
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 5.06. 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
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as a whole; provided, however, that nothing in this
Section 5.06 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
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 5.07. 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
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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.
(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 5.08. 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.
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SECTION 5.09. 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).
SECTION 5.10. 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 5.11. 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 5.11(b) and (y) Affiliate
64
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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 disinter-
ested 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 Affiliate Transac-
tion 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 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 finan-
cial terms of such Affiliate Transaction are fair to the Com-
pany or such Subsidiary, as the case may be, or that the terms
of such Affiliate Transaction are at least as favorable as
those that might reasonably have been obtained at the time from
an unaffiliated party.
(b) The provisions of Section 5.11(a) shall not
apply to (i) any Permitted Payment, (ii) any Restricted Payment
that is made in compliance with the provisions of Section 5.03,
(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
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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 agree-
ment 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 6.01 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 5.12. 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
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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.
SECTION 5.13. 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 5.12), (iv) secured Indebtedness otherwise permitted to
be incurred pursuant to Sections 5.12 and 5.14 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 per-
mitted to be incurred subsequent to the Issue Date pursuant to
the provisions of Section 5.12; provided that any such Payment
Restrictions are ordinary and customary with respect to the
type of Indebtedness being incurred (under the relevant
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circumstances) and, in any event, no more restrictive than the
most restrictive Payment Restrictions in effect on the Issue
Date.
SECTION 5.14. 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) Liens on assets of the Company securing Senior
Indebtedness and Liens on assets of a Subsidiary Guarantor
which, at the time of incurrence, secure Guarantor Senior
Indebtedness; (ii) existing and future Liens securing Indebted-
ness 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,
(iii) Permitted Liens, (iv) Liens securing Acquired Indebted-
ness, provided that such Liens (x) are not incurred in connec-
tion with, or in contemplation of, the acquisition of the prop-
erty or assets acquired and (y) do not extend to or cover any
property or assets of the Company or any Subsidiary other than
the property or assets so acquired, (v) Liens to secure Capi-
talized Lease Obligations and certain other Indebtedness that
is otherwise 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, installation and delivery charges and other direct costs
of, and other direct expenses paid or charged in connection
with, the purchase (whether through stock or asset purchase,
merger or otherwise) or construction) or improvement of the
property subject 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, (vi) Liens existing on the Issue Date (after giv-
ing effect to the Merger), (vii) Liens in favor of the Trustee
under this Indenture and any substantially equivalent Lien
granted to any trustee or similar institution under any inden-
ture for Indebtedness permitted by the terms of this Indenture,
and (viii) any replacement, extension or renewal, in whole or
in part, of any Lien described in the foregoing clauses includ-
ing 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
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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 permitted hereunder.
SECTION 5.15. 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. Prior
to the mailing of the notice of a Change of Control Offer pro-
vided for in paragraph (b) below, within 30 days following any
Change of Control the Company shall either (a) repay in full
and terminate all commitments under Indebtedness under the
Credit Agreement to the extent the terms thereof require repay-
ment upon a Change of Control (or offer to repay in full and
terminate all commitments under all such Indebtedness under the
Credit Agreement and repay the Indebtedness owed to each lender
which has accepted such offer), or (b) obtain the requisite
consent under the Credit Agreement, the terms of which require
repayment upon a Change of Control, to permit the repurchase of
the Securities as provided for in this Section 5.15. The Com-
pany shall first comply with the covenant in the immediately
preceding sentence before it shall be required to repurchase
Securities pursuant to this Section 5.15. The Company's fail-
ure to comply with the covenants described in this paragraph
shall constitute an Event of Default under this Indenture.
(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 5.15 and that all Securities ten-
dered will be accepted for payment;
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(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 subsequent to such date for the Senior
F4L Notes;
(3) that any Security not tendered will continue to
accrue interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursu-
ant to Article Four, 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
"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
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(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
Date. For purposes of this Section 5.15, 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 5.15, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 5.15 by virtue thereof.
SECTION 5.16. 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
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Subsidiaries 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 or Senior Indebtedness; provided, however, that
the repayment of any revolving loan (under the Credit Agreement
or otherwise) shall result in a permanent reduction in the com-
mitment 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 million, 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 lease-back of a supermarket and/or related assets
which are acquired or constructed by the Company or a Subsid-
iary subsequent to the Issue Date, provided that such sale and
substantially concurrent lease-back occurs within 180 days fol-
lowing such acquisition or the completion of such construction,
as the case may be, and (y) the proceeds of which in the aggre-
gate do not exceed $20 million; provided further that pending
the utilization 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 Agreement without a permanent reduction of the commit-
ment thereunder.
Notice of a Net Proceeds Offer pursuant to this
Section 5.16 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 5.16 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
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Proceeds 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 (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursu-
ant to Article Four hereof or otherwise, any Security
accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Proceeds Purchase
Date;
(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.
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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) unless such payment is prohibited
pursuant to Article Four hereof or otherwise. 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 5.16, 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.
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 5.16, 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 5.16 by virtue thereof.
SECTION 5.17. 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.
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SECTION 5.18. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries
to issue 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.
SECTION 5.19. Limitation on Other Senior Subordinated
Indebtedness.
Neither the Company nor any Subsidiary Guarantor
will, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinate in right of payment
to any Indebtedness of the Company or such Subsidiary Guaran-
tor, as the case may be, unless such Indebtedness is either (a)
pari passu in right of payment with the Securities or the Guar-
antee of such Subsidiary Guarantor, as the case may be, or (b)
subordinate in right of payment to the Securities or the Guar-
antee of such Subsidiary Guarantor, as the case may be, in the
same manner and at least to the same extent as the Securities
are subordinate to Senior Indebtedness or as such Guarantee is
subordinated to Senior Guarantor Indebtedness of such Subsid-
iary Guarantor, as the case may be.
ARTICLE SIX
SUCCESSOR CORPORATION
SECTION 6.01. 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:
(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
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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 5.12;
(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.
(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
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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 6.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of
assets in accordance with Section 6.01, 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 5.03, 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,
whether or not such payment shall be prohibited by the
provisions of Article Four hereof;
(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, whether or not such
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payment shall be prohibited by the provisions of Article
Four hereof;
(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 5.03, 5.15, 5.16 or 6.01,
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 7.01(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 7.01(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 8.07, 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 7.01(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 7.07 and 10.02, 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 7.01. 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 7.03. Subject to Section 8.01,
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 7.01 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 8.07. 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 Seven, it shall pay out the money in the following
order:
First: to the Trustee for amounts due under
Section 8.07;
Second: subject to Article Four and Article Twelve,
to Holders for interest accrued on the Securities,
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ratably, without preference or priority of any kind, accord-
ing to the amounts due and payable on the Securities for
interest;
Third: subject to Article Four and Article Twelve,
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: subject to Article Four and Article Twelve,
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 7.10.
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
Seven or by law to the Trustee or to the Holders may be exer-
cised from time to time, and as often as may be deemed expe-
dient, 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
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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
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This
Section 7.13 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 7.07, 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
prudent 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.
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(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:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 8.01.
(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 7.05.
(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 8.01.
(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 8.01:
(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
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to Sections 13.04 and 13.05. 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.
(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
reasonable 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 8.10 and 8.11.
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.
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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
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
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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
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 8.07, 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 7.01(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 8.10;
(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.
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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 princi-
pal 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 8.07, 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 8.10, 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 8.08, the Company's obligations under
Section 8.07 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.
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SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satis-
fies the requirement of TIA {{ 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
report of condition. The Trustee shall comply with TIA
{ 310(b); provided, however, that there shall be excluded from
the operation of TIA { 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
{ 310(b)(1) are met.
SECTION 8.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA { 311(a), excluding
any creditor relationship listed in TIA { 311(b). A Trustee
who has resigned or been removed shall be subject to TIA
{ 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 9.01,
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 9.04)
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
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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;
(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 and, provided, further,
that from and after the time of deposit, the money depos-
ited shall not be subject to the rights of holders of
Senior Indebtedness pursuant to the provisions of
Article Four and Article Twelve;
(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, 5.01, 5.02
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and 8.07 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 8.07, 9.04 and 9.05 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
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
paragraph (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), and Holders of the
Securities and the Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obliga-
tions to, or the rights of, any holder of Senior Indebtedness
or Guarantor Senior Indebtedness under Article Four, Article
Twelve or otherwise, except for the following which shall sur-
vive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Securities to receive
solely from the trust fund described in paragraph (d) below and
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as more fully set forth in such paragraph, payments in respect
of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's obli-
gations with respect to such Securities under Sections 2.06,
2.07 and 5.02, and, with respect to the Trustee, under
Section 8.07 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 9.02
and Section 9.05. Subject to compliance with this
Section 9.02, 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.
(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 Four and Article Six and in Sec-
tions 5.03, 5.05 through 5.09 and 5.11 through 5.19 with
respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "cove-
nant defeasance"), and the Securities shall thereafter be
deemed to be not "outstanding" for the purpose of any direc-
tion, 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 and Holders of the Securities and the Guar-
antees and any amounts deposited under paragraph (d) below
shall cease to be subject to any obligations to, or the rights
of, any holder of Senior Indebtedness or Guarantor Senior
Indebtedness under Article Four, Article Twelve or otherwise.
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 7.01(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:
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(i) the Company shall irrevocably have
deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of
Section 8.10 who shall agree to comply with the provisions
of this Section 9.02 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 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 7.01(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
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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 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, (x) the trust funds will not be subject to
any rights of any other holders of Senior Indebtedness or
Guarantor Senior Indebtedness, including, without limita-
tion, those arising under this Indenture, after the 91st
day following the deposit, and (y) after the 91st day fol-
lowing the deposit, the trust funds will not be subject to
the effect of any applicable Bankruptcy Law;
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(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
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 9.02 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.
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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 9.01
and 9.02, 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 8.07, 9.01 and 9.02, 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 9.02, 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 pay-
ment 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
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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.
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 Six and Section 11.06;
(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 10.01.
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SECTION 10.02. With Consent of Holders.
Subject to Section 7.07, 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.
Without the consent of each Securityholder affected, however,
no amendment, supplement or waiver, including a waiver pursuant
to Section 7.04, 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 5.15 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 7.04, 7.07 or this
Section 10.02;
(7) make the principal of, or the interest on any
Security payable with anything or in any manner other than
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as provided for in this Indenture, the Securities and the
Guarantees as in effect on the date hereof;
(8) waive a Default or Event of Default resulting
from failure to comply with the provisions of Section
5.15; or
(9) modify the subordination provisions of this
Indenture (including the related definitions) so as to
adversely affect the ranking of any Security or Guarantee.
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,
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 Ten, 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
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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.
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 (9) of Section
10.02, 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.
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SECTION 10.06. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement
or waiver authorized pursuant to this Article Ten; 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 Ten is authorized or per-
mitted by this Indenture.
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"), subject to Article
Twelve, to each Holder of a Security authenticated and deliv-
ered by the Trustee and to the Trustee and its successors and
assigns, the Securities or the Obligations of the Company here
under or thereunder, that: (i) the principal of and interest
on the Securities will be promptly paid in full when due, sub-
ject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue princi-
pal, if any, and interest on any interest, to the extent law-
ful, of the Securities and all other obligations of the Company
to the Holders or the Trustee hereunder 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 applicable grace period, whether at
stated maturity, by acceleration or otherwise, subject, how-
ever, in the case of clauses (i) and (ii) above, to the limita-
tions set forth in Section 11.05. Each Subsidiary Guarantor
hereby agrees that its obligations hereunder shall be uncondi-
tional, irrespective of the validity, regularity or enforce-
ability of the Securities or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder
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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 payment, 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 discharged except by
complete performance of the obligations contained in the Secu-
rities, 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 Guarantor,
or any custodian, trustee, liquidator or other similar 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 Guarantee, 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 acceler-
ated as provided in Article Seven 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 Seven, such
obligations (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. Subordination of Guarantee.
The obligations of each Subsidiary Guarantor to the
Holders of Securities and to the Trustee pursuant to the Guar-
antee and this Indenture are expressly subordinate and subject
in right of payment to the prior payment in full of all Guaran-
tor Senior Indebtedness of such Subsidiary Guarantor, to the
extent and in the manner provided in Article Twelve.
SECTION 11.03. 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.
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SECTION 11.04. 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 Eleven 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 Com-
pany accompanied by an Officers' Certificate certifying as to
the compliance with this Section 11.04. Any Subsidiary Guaran-
tor not so released remains liable for the full amount of prin-
cipal of and interest on the Securities as provided in this
Article Eleven.
SECTION 11.05. 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
(including, but not limited to, the Guarantor Senior Indebted-
ness 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
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such other Subsidiary Guarantor under its Guarantee or pursuant
to Section 11.07, result in the obligations of such Subsidiary
Guarantor under the Guarantee not constituting such fraudulent
transfer or conveyance.
SECTION 11.06. 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
substantially as an entirety, to the Company or another Subsid-
iary Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Subsidiary Guarantor
shall no longer have any force or effect.
(b) Except as set forth in Article Five and Article
Six 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 11.04 and 11.06(a),
(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 Eleven, and the due
and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by such Sub-
sidiary 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
corporation 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 consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental inden-
ture executed and delivered to the Trustee and satisfactory in
form to the Trustee of the due and punctual performance of all
of the covenants and conditions of this Indenture to be per-
formed by the Subsidiary Guarantor, such successor corporation
shall succeed to and be substituted for the Subsidiary Guaran-
tor with the same effect as if it had been named herein as a
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Subsidiary Guarantor; provided, however, that solely for pur-
poses of computing amounts described in subclause (c) of the
first paragraph of Section 5.03, 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 11.07. 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,
including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities
incurred or assumed on such date (other than liabilities of
such Subsidiary Guarantor under Subordinated Indebtedness)),
but excluding liabilities under the Guarantee, of such Subsid-
iary 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 giv-
ing 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 Guaran-
tee), excluding debt in respect of the Guarantee of such Sub-
sidiary Guarantor, as they become absolute and matured.
SECTION 11.08. 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
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obligations 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
Subsidiary Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall, sub-
ject to the provisions of Section 11.02, Article Four and
Article Twelve, forthwith be paid to the Trustee for the bene-
fit of such Holders to be credited and applied upon the Securi-
ties, whether matured or unmatured, in accordance with the
terms of this Indenture. Each Subsidiary Guarantor acknowl-
edges 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 11.08 is knowingly
made in contemplation of such benefits.
SECTION 11.09. Execution of Guarantee.
To evidence their guarantee to the Securityholders
set forth in this Article Eleven, 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 Eleven shall remain in full force and effect
notwithstanding any failure to endorse on each Security a nota-
tion 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
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reproduced 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 Subsidiary
Guarantor.
SECTION 11.10. 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.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Anything herein to the contrary notwithstanding, each
of the Subsidiary Guarantors, for itself and its successors,
and each Holder, by his acceptance of Guarantees, agrees, that
any payment of obligations by a Subsidiary Guarantor in respect
of its Guarantee (collectively, as to any Subsidiary Guarantor,
its "Guarantee Obligations") is subordinated, to the extent and
in the manner provided in this Article Twelve, to the prior
payment in full in cash or Cash Equivalents of all Guarantor
Senior Indebtedness of such Subsidiary Guarantor.
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This Article Twelve shall constitute a continuing
offer to all persons who become holders of, or continue to
hold, Guarantor Senior Indebtedness, and such provisions are
made for the benefit of the holders of Guarantor Senior Indebt-
edness and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 12.02. Suspension of Guarantee Obligations When
Guarantor Senior Indebtedness in Default.
(a) Unless Section 12.03 shall be applicable, upon
(1) the occurrence of a Payment Default with respect to any
Designated Senior Indebtedness guaranteed by a Subsidiary
Guarnator (which guarantee consititutes Guarantor Senior
Indebtedness of such Subsidiary Guarantor) and (2) receipt by
the Trustee, the Company and such Subsidiary Guarantor from the
Representatives of written notice of such occurrence, then no
payment (other than payments previously made pursuant to
Article Nine hereof) or distribution of any assets of such Sub-
sidiary Guarantor of any kind or character shall be made by
such Subsidiary Guarantor on account of principal of, premium,
if any, or interest on the Securities or on account of the pur-
chase, redemption or other acquisition of Securities or any of
the obligations of such Subsidiary Guarantor under this Guaran-
tee unless and until such Payment Default shall have been cured
or waived or shall have ceased to exist or such Guarantor
Senior Indebtedness shall have been discharged or paid in full,
after which such Guarantor shall resume making any and all
required payments in respect of its obligations under this
Guarantee.
(b) Unless Section 12.03 shall be applicable upon
(1) the occurrence of a Non-payment Default with respect to any
Designated Senior Indebtedness guaranteed by a Subsidiary Guar-
antor (which guarantee constitutes Guarantor Senior Indebted-
ness of such Subsidiary Guarantor) and (2) the earlier of
(i) receipt by the Trustee, the Company and such Subsidiary
Guarantor from the Representatives of written notice of such
occurrence stating that such notice in a "Payment Blockage
Notice" pursuant to Sections 4.02(b) and 12.02(b) of this
Indenture or (ii) if such Non-payment Default results from the
acceleration of the Securities, the date of the acceleration of
the Securities, no payment (other than payments previously made
pursuant to Article Nine hereof) or distribution of any assets
of such Subsidiary Guarantor of any kind or character shall be
made by such Guarantor on account of principal, premium, if
any, or interest on the Securities or on account of the
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purchase, redemption or other acquisition of Securities or on
account of any of the other obligations of such Subsidiary
Guarantor under this Guarantee for a period ("Guarantor Payment
Blockage Period") commencing on the date of receipt by the
Trustee of such notice or the date of the acceleration referred
to in clause (ii) above, as the case may be, unless and until
the earlier to occur of the following events: (w) 179 days
shall have elapsed since receipt of such written notice by the
Trustee or the date of the acceleration of the Securities, as
the case may be (provided such Guarantor Senior Indebtedness
shall theretofore not have been accelerated), (x) such Non-pay-
ment Default shall have been cured or waived or shall have
ceased to exist, (y) such Guarantor Senior Indebtedness shall
have been discharged or paid in full or (z) such Guarantor
Payment Blockage Period shall have been terminated by written
notice to the Guarantor or the Trustee from the Representative
initiating such Guarantor Payment Blockage Period, or the hold-
ers of at least a majority in principal amount of such issue of
such Guarantor Senior Indebtedness, after which, in the case of
clause (w), (x), (y) or (z), the Subsidiary Guarantor shall
resume making any and all required payments in respect of its
obligations under this Guarantee. Notwithstanding any other
provisions of this Indenture, only one Guarantor Payment Block-
age Period may be commenced within any consecutive 365 day
period and no Non-payment Default with respect to Guarantor
Senior Indebtedness guaranteed by any Subsidiary Guarantor
(which guarantee constitutes Guarantor Senior Indebtedness of
such Subsidiary Guarantor) which existed or was continuing on
the date of the commencement of any Guarantor Payment Blockage
Period shall be, or be made, the basis for the commencement of
a second Guarantor Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such event of
default shall have been cured or waived for a period of not
less than 90 consecutive days. In no event shall a Guarantor
Payment Blockage Period extend beyond 179 days from the date of
the receipt of the notice or the date of the acceleration of
the Securities referred to in clause (2) hereof and there must
be a 186 consecutive day period in any 365 consecutive day
period during which no Guarantor Payment Blockage Period is in
effect.
(c) In the event that, notwithstanding the fore-
going, the Trustee or the Holder of any Security shall have
received any payment prohibited by the foregoing provisions of
this Section 12.02, then and in such event such payment shall
be paid over and delivered forthwith to the Representatives or
as a court of competent jurisdiction shall direct.
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SECTION 12.03. Guarantee Obligations Subordinated to Prior
Payment of All Guarantor Senior Indebtedness
on Dissolution, Liquidation or Reorganization
of Such Subsidiary Guarantor.
Upon any payment or distribution of assets of any
Subsidiary Guarantor of any kind or character, whether in cash,
property or securities upon any dissolution, winding up, total
or partial liquidation or reorganization of such Subsidiary
Guarantor and whether voluntary or involuntary (including,
without limitation, in bankruptcy, insolvency or receivership
proceedings or upon any assignment for the benefit of creditors
or any other marshalling of assets and liabilities of such Sub-
sidiary Guarantor and whether voluntary or involuntary):
(a) the holders of all Guarantor Senior Indebtedness
of such Subsidiary Guarantor shall first be entitled to
receive payments in full in cash or Cash Equivalents of
all amounts payable under Guarantor Senior Indebtedness
(including, with respect to Designated Senior Indebtedness
guaranteed by such Subsidiary Guarantor, any interest
accruing after the commencement of any such proceeding at
the rate specified in the applicable Designated Senior
Indebtedness whether or not interest is an allowed claim
enforceable against the Company in any such proceeding)
before the Holders will be entitled to receive any payment
with respect to the Guarantee (excluding Permitted Subor-
dinated Reorganization Securities), and until all Obliga-
tions with respect to the Guarantor Senior Indebtedness
are paid in full in cash or Cash Equivalents, any distri-
bution to which the Holders would be entitled (excluding
Permitted Subordinated Reorganization Securities) shall be
made to the holders of Guarantor Senior Indebtedness; pro-
vided, however, that no payment by any other Subsidiary
Guarantor or the Company shall constitute payment on
behalf of such Subsidiary Guaranty for purposes of this
Section 12.03(a);
(b) any payment or distribution of assets of such
Subsidiary Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders or the
Trustee on behalf of the Holders would be entitled
(excluding Permitted Subordinated Indebtedness) except for
the provisions of this Article Twelve, shall be paid by
the liquidating trustee or agent or other person making
such a payment or distribution, directly to the holders of
Guarantor Senior Indebtedness of such Subsidiary Guarantor
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or their Representative, ratably according to the respec-
tive amounts of such Guarantor Senior Indebtedness remain-
ing unpaid held or represented by each, until all such
Guarantor Senior Indebtedness remaining unpaid shall have
been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment or distribution to the
holders of such Guarantor Senior Indebtedness;
(c) in the event that, notwithstanding the fore-
going, any payment or distribution of assets of such Sub-
sidiary Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the
Trustee or the Holders or any Paying Agent in respect of
payment of the Guarantee before all Guarantor Senior
Indebtedness of such Subsidiary Guarantor is paid in full
in cash or Cash Equivalents, such payment or distribution
(subject to the provisions of Sections 12.06 and 12.07)
shall be received, segregated from other funds, and held
in trust by the Trustee or such Holder or Paying Agent for
the benefit of, and shall immediately be paid over to, the
holders of such Guarantor Senior Indebtedness or their
Representative, ratably according to the respective
amounts of such Guarantor Senior Indebtedness held or rep-
resented by each, until all such Guarantor Senior Indebt-
edness remaining unpaid shall have been paid in full in
cash or Cash Equivalents, after giving effect to any con-
current payment or distribution to the holders of Guaran-
tor Senior Indebtedness. Notwithstanding anything to the
contrary contained herein, in the absence of its gross
negligence or wilful misconduct, the Trustee shall have no
duty to collect or retrieve monies previously paid by it
in good faith; provided that this sentence shall not
affect the obligation of any other party receiving such
payment to hold such payment for the benefit of, and to
pay over such payment over to, the holders of such Guaran-
tor Senior Indebtedness or their Representative.
Each Subsidiary Guarantor shall give prompt notice to
the Trustee prior to any dissolution, winding up, total or par-
tial liquidation or total or reorganization (including, without
limitation, in bankruptcy, insolvency, or receivership proceed-
ings or upon any assignment for the benefit of creditors or any
other marshalling of such Subsidiary Guarantor's assets and
liabilities).
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SECTION 12.04. Holders of Guarantee Obligations To Be
Subrogated to Rights of Holders of
Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash Equiv-
alents of all Guarantor Senior Indebtedness, the Holders of
Guarantee Obligations of a Subsidiary Guarantor shall be
subrogated to the rights of the holders of Guarantor Senior
Indebtedness of such Subsidiary Guarantor to receive payments
or distributions of assets of such Subsidiary Guarantor appli-
cable to such Guarantor Senior Indebtedness until all amounts
owing on or in respect of the Guarantee Obligations shall be
paid in full in cash, and for the purpose of such subrogation
no payments or distributions to the holders of such Guarantor
Senior Indebtedness by or on behalf of such Subsidiary Guaran-
tor, or by or on behalf of the Holders by virtue of this
Article Twelve, which otherwise would have been made to the
Holders, shall, as between such Subsidiary Guarantor and the
Holders, be deemed to be payment by such Subsidiary Guarantor
to or on account of such Guarantor Senior Indebtedness, it
being understood that the provisions of this Article Twelve are
and are intended solely for the purpose of defining the rela-
tive rights of the Holders, on the one hand, and the holders of
such Guarantor Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders
would otherwise have been entitled but for the provisions of
this Article Twelve shall have been applied, pursuant to the
provisions of this Article Twelve, to the payment of all
amounts payable under such Guarantor Senior Indebtedness, then
the Holders shall be entitled to receive from the holders of
such Guarantor Senior Indebtedness any payments or distribu-
tions received by such holders of such Guarantor Senior Indebt-
edness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Guarantor Senior Indebted-
ness in full in cash or Cash Equivalents.
SECTION 12.05. Obligations of the Subsidiary
Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere
in this Indenture or in the Guarantees is intended to or shall
impair, as between the Subsidiary Guarantors and the Holders,
the obligation of the Subsidiary Guarantors, which is absolute
and unconditional, to pay to the Holders all amounts due and
payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended
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to or shall affect the relative rights of the Holders and cred-
itors of the Subsidiary Guarantors other than the holders of
the Guarantor Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article Twelve, of the holders of Guarantor Senior Indebtedness
in respect of cash, property or securities of the Subsidiary
Guarantors received upon the exercise of any such remedy. Upon
any payment or distribution of assets of any Subsidiary Guaran-
tor referred to in this Article Twelve, the Trustee, subject to
the provisions of Sections 8.01 and 8.02, and the Holders shall
be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which any dissolution, winding up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating
trustee or agent or other person making any payment or distri-
bution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such pay-
ment or distribution, the holders of Guarantor Senior Indebted-
ness and other Indebtedness of any Subsidiary Guarantor, the
amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article Twelve. Nothing in this Section 12.05 shall
apply to the claims of, or payments to, the Trustee under or
pursuant to Section 8.07.
SECTION 12.06. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee unless and until the
Trustee or any Paying Agent shall have received notice thereof
from the Company or any Subsidiary Guarantor or from one or
more holders of Guarantor Senior Indebtedness or from any Rep-
resentative therefor and, prior to the receipt of any such
notice, the Trustee, subject to the provisions of Sections 8.01
and 8.02, shall be entitled in all respects conclusively to
assume that no such fact exists.
SECTION 12.07. Application by Trustee of Assets Deposited
with It.
U.S. Legal Tender or U.S. Government Obligations
deposited in trust with the Trustee pursuant to and in accor-
dance with Sections 9.01 and 9.02 shall be for the sole benefit
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of Securityholders and, to the extent allocated for the payment
of Securities, shall not be subject to the subordination provi-
sions of this Article Twelve. Otherwise, any deposit of assets
or securities by or on behalf of a Subsidiary Guarantor with
the Trustee or any Paying Agent (whether or not in trust) for
payment of the Guarantee shall be subject to the provisions of
this Article Twelve; provided that if prior to the second Busi-
ness Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any pur-
pose (including, without limitation, the payment of either
principal of or interest on any Security) the Trustee or such
Paying Agent shall not have received with respect to such
assets the notice provided for in Section 12.06, then the Trus-
tee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for
which they were received, and shall not be affected by any
notice to the contrary received by it on or after such date.
The foregoing shall not apply to the Paying Agent if the Com-
pany or any Subsidiary or Affiliate of the Company is acting as
Paying Agent. Nothing contained in this Section 12.07 shall
limit the right of the holders of Guarantor Senior Indebtedness
to recover payments as contemplated by this Article Twelve.
SECTION 12.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Guarantor Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of any Sub-
sidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any non-compliance by any Sub-
sidiary Guarantor with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection
(a) of this Section 12.08, the holders of Guarantor Senior
Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordi-
nation provided in this Article Twelve or the obligations here-
under of the Holders of the Securities to the holders of Guar-
antor Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Guarantor Senior Indebt-
edness or any instrument evidencing the same or any agreement
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under which Guarantor Senior Indebtedness is outstanding;
(2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior
Indebtedness; (3) release any person liable in any manner for
the collection or payment of Guarantor Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the
Company and any other person; provided, however, that in no
event shall any such actions limit the right of the Holders of
the Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Seven hereof or to pursue
any rights or remedies hereunder or under applicable laws if
the taking of such action does not otherwise violate the terms
of this Indenture.
SECTION 12.09. Holders Authorize Trustee to Effectuate
Subordination of Guarantee Obligations.
Each Holder of the Guarantee Obligations by his
acceptance thereof authorizes and expressly directs the Trustee
on his behalf to take such action as may be necessary or appro-
priate to effect the subordination provisions contained in this
Article Twelve, and appoints the Trustee his attorney-in-fact
for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of any Subsidiary
Guarantor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors
or any other marshalling of assets and liabilities of any Sub-
sidiary Guarantor) tending towards liquidation or reorganiza-
tion of the business and assets of any Subsidiary Guarantor,
the immediate filing of a claim for the unpaid balance under
its or his Guarantee Obligations in the form required in said
proceedings and cause said claim to be approved. If the Trus-
tee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expira-
tion of the time to file such claim or claims, then the holders
of the Guarantor Senior Indebtedness or their Representative is
hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Guarantee Obligations. Nothing
herein contained shall be deemed to authorize the Trustee or
the holders of Guarantor Senior Indebtedness or their Represen-
tative to authorize or consent to or accept or adopt on behalf
of any holder of Guarantee Obligations any plan of reorganiza-
tion, arrangement, adjustment or composition affecting the
Guarantee Obligations or the rights of any Holder thereof, or
to authorize the Trustee or the holders of Guarantor Senior
Indebtedness or their Representative to vote in respect of the
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claim of any holder of Guarantee Obligations in any such
proceeding.
SECTION 12.10. Right of Trustee to Hold Guarantor
Senior Indebtedness.
The Trustee shall be entitled to all of the rights
set forth in this Article Twelve in respect of any Guarantor
Senior Indebtedness at any time held by it to the same extent
as any other holder of Guarantor Senior Indebtedness, and noth-
ing in this Indenture shall be construed to deprive the Trustee
of any of its rights as such holder.
SECTION 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guar-
antees by reason of any provision of this Article Twelve shall
not be construed as preventing the occurrence of a Default or
an Event of Default under Section 7.01.
Nothing contained in this Article Twelve shall limit
the right of the Trustee or the Holders of Securities to take
any action to accelerate the maturity of the Securities pursu-
ant to Article Seven or to pursue any rights or remedies here-
under or under applicable law, subject to the rights, if any,
under this Article Twelve of the holders, from time to time, of
Guarantor Senior Indebtedness.
SECTION 12.12. No Fiduciary Duty of Trustee to Holders
of Guarantor Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Guarantor Senior Indebtedness, and shall
not be liable to any such holders (other than for its willful
misconduct or gross negligence) if it shall in good faith mis-
takenly pay over or deliver to the holders of Guarantee Obliga-
tions or the Company or any other person, money or assets to
which any holders of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article Twelve or otherwise. Noth-
ing in this Section 12.12 shall affect the obligation of any
person other than the Trustee to hold such payment for the
benefit of, and to pay such payment over to, the holders of
Guarantor Senior Indebtedness or their Representative.
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. 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 13.02. 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:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
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
119
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Agent shall be deemed to have been given or made as of the date
so delivered if personally delivered; when answered back, if
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 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA
{ 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 { 312(c).
SECTION 13.04. 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.
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SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compli-
ance with a condition or covenant provided for in this Inden-
ture, other than the Officers' Certificate required by
Section 5.07, 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
necessary to enable him to express an informed opinion as
to whether or not such convenant or condition has been
complied 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 13.06. 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 13.07. 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.
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SECTION 13.08. 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 juris-
diction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 13.09. 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 13.10. 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 13.11. 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 13.12. 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 13.13. 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
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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.
SECTION 13.14. 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 6.01(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)
125
EXHIBIT A
[FORM OF NOTE]
FOOD 4 LESS SUPERMARKETS, INC.
13.75% Senior Subordinated Notes
due 2005
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
, 2005.
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.
A-1
126
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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127
[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
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128
FOOD 4 LESS SUPERMARKETS, INC.
13.75% Senior Subordinated Notes
due 2005
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 and
of each year (the "Interest Payment Date"), commencing
, 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, United States Trust Company of New York
(the "Trustee") 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
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129
Subsidiaries may, subject to certain exceptions, act as Paying
Agent, Registrar 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 $145,000,000. Payment on each Security is
guaranteed on a senior subordinated basis, jointly and sever-
ally, by the Subsidiary Guarantors pursuant to Article Eleven
of the Indenture.
5. Optional Redemption.
On or after June 15, 1996 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
in the years set forth below:
Year Percentage
---- ----------
1996 ................. 106.111%
1997 ................. 104.583%
1998 ................. 103.056%
1999 ................. 101.528%
and thereafter ....... 100%
The documents evidencing Senior Indebtedness will
restrict the Company's ability to optionally redeem the
Securities.
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130
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. 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 and payment
of the Securities called for redemption is not prohibited under
Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price,
the Securities called for redemption will cease to bear inter-
est 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. The
Company shall not be required to repurchase Securities until it
has complied with its covenants to repay in full all Indebted-
ness of the Company and its Subsidiaries under the Credit
Agreement or offer to repay in full all such Indebtedness and
repay the Indebtedness of each lender who has accepted its
offer to repay such Indebtedness or to obtain the requisite
consent under the Credit Agreement to permit the repurchase of
the Securities pursuant to a Change of Control Offer. In addi-
tion, prior to purchasing the Securities tendered in a Change
of Control Offer, the Company shall purchase all Senior F4L
Notes (or permitted refinancings thereof) which it is required
to purchase by reason of such Change of Control.
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 or Senior Indebtedness, to make Related
Business Investments, an investment in properties and assets
that replace the properties 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 Subsidiar-
ies existing on the Issue Date or in a business reasonably
related thereto or to purchase in a Net Proceeds Offer (at a
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131
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.
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
A-7
132
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 Secu-
rities in addition to or in place of certificated Securities,
comply with Article Six or Section 11.06 of the Indenture, 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. Subordination.
The Securities will be subordinated in right of pay
ment to the prior payment in full of all Senior Indebtedness
(as defined in the Indenture) of the Company. The Guarantees
are subordinated in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full
of Guarantor Senior Indebtedness (as defined in the Indenture).
To the extent and in the manner provided in the Indenture,
Senior Indebtedness, and in the case of payment by a Subsidiary
Guarantor, Guarantor Senior Indebtedness, must be paid before
any payment may be made to any Holder of this Security. Any
Securityholder by accepting this Security agrees to the subor-
dination and authorizes the Trustee to give it effect.
16. 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.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal
A-8
133
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.
18. 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.
19. 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.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authen-
tication on this Security.
21. 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).
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134
22. 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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135
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED 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 subordinated basis (such guarantee by each Subsidiary
Guarantor 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 other-
wise, the due and punctual payment of interest on the overdue
principal and interest, if any, on the Securities, to the
extent lawful, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee
all in accordance with the terms set forth in Article Eleven
and Article Twelve 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 performed 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
expressly subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor, to the extent and in the manner pro-
vided, in Article Eleven and Article Twelve of the Indenture,
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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136
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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137
[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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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased
by the Company pursuant to Section 5.15 or Section 5.16 of the
Indenture, check the appropriate box:
Section 5.15 [ ] Section 5.16 [ ]
If you want to elect to have only part of this Secu-
rity purchased by the Company pursuant to Section 5.15 or
Section 5.16 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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