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Exhibit 4.9
RALPHS GROCERY COMPANY
AND
SUBSIDIARY GUARANTORS
AND
NORWEST BANK MINNESOTA, National Association,
TRUSTEE
_________________
INDENTURE
Dated as of June 6, 1996
________________
$100,000,000
10.45% Senior Notes
due 2004
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section_
310(a)(1)........................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10; 7.11
(b)............................................. 7.08; 7.10;
11.02
(c)............................................. N.A.
311(a).............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a).............................................. 2.05
(b)............................................. 11.03
(c)............................................. 11.03
313(a).............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.06
(c)............................................. 7.06; 11.02
(d)............................................. 7.06
314(a).............................................. 4.07; 4.09;
11.02
(b)............................................. N.A.
(c)(1).......................................... 7.02; 11.04
(c)(2).......................................... 7.02; 11.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 11.05
(f)............................................. N.A.
315(a).............................................. 7.01(b)
(b)............................................. 7.05; 11.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
316(a)(last sentence)............................... 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
317(a)(1)........................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318(a).............................................. 11.01
(c)............................................. 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Page
Section 1.01 Definitions..................................... 1
Section 1.02 Incorporation by Reference of TIA............... 31
Section 1.03 Rules of Construction........................... 32
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating................................. 32
Section 2.02 Execution and Authentication.................... 33
Section 2.03 Registrar and Paying Agent...................... 34
Section 2.04 Paying Agent To Hold Assets in
Trust........................................ 35
Section 2.05 Securityholder Lists............................ 36
Section 2.06 Transfer and Exchange........................... 36
Section 2.07 Replacement Securities.......................... 37
Section 2.08 Outstanding Securities.......................... 37
Section 2.09 Treasury Securities............................. 38
Section 2.10 Temporary Securities............................ 38
Section 2.11 Cancellation.................................... 38
Section 2.12 Defaulted Interest.............................. 39
Section 2.13 CUSIP Number.................................... 39
Section 2.14 Book-Entry Provisions for Global
Note......................................... 39
Section 2.15 Special Transfer Provisions..................... 41
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee.............................. 43
Section 3.02 Selection of Securities To Be
Redeemed..................................... 43
Section 3.03 Notice of Redemption............................ 44
Section 3.04 Effect of Notice of Redemption.................. 45
Section 3.05 Deposit of Redemption Price..................... 45
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Section 3.06 Securities Redeemed in Part..................... 46
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities........................... 46
Section 4.02 Maintenance of Office or Agency................. 46
Section 4.03 Limitation on Restricted Payments............... 47
Section 4.04 Corporate Existence............................. 48
Section 4.05 Payment of Taxes and Other Claims............... 49
Section 4.06 Maintenance of Properties and
Insurance.................................... 49
Section 4.07 Compliance Certificate; Notice of
Default...................................... 50
Section 4.08 Compliance with Laws............................ 51
Section 4.09 SEC Reports..................................... 51
Section 4.10 Waiver of Stay, Extension or Usury
Laws......................................... 52
Section 4.11 Limitation on Transactions with
Affiliates................................... 52
Section 4.12 Limitation on Incurrences of
Additional Indebtedness...................... 54
Section 4.13 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries................................. 55
Section 4.14 Limitation on Liens............................. 56
Section 4.15 Limitation on Change of Control................. 57
Section 4.16 Limitation on Asset Sales....................... 59
Section 4.17 Guarantees of Certain Indebtedness.............. 63
Section 4.18 Limitation on Preferred Stock of
Subsidiaries................................. 63
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Limitation on Mergers and Certain
Other Transactions........................... 63
Section 5.02 Successor Corporation Substituted............... 65
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default............................... 65
Section 6.02 Acceleration.................................... 67
Section 6.03 Other Remedies.................................. 69
Section 6.04 Waiver of Past Defaults......................... 69
Section 6.05 Control by Majority............................. 69
Section 6.06 Limitation on Suits............................. 70
Section 6.07 Rights of Holders To Receive
Payment...................................... 70
Section 6.08 Collection Suit by Trustee...................... 70
Section 6.09 Trustee May File Proofs of Claim................ 71
Section 6.10 Priorities...................................... 71
Section 6.11 Right and Remedies Cumulative................... 72
Section 6.12 Delay or Omission Not Waiver.................... 72
Section 6.13 Undertaking for Costs........................... 72
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee............................... 73
Section 7.02 Rights of Trustee............................... 74
Section 7.03 Individual Rights of Trustee.................... 75
Section 7.04 Trustee's Disclaimer............................ 75
Section 7.05 Notice of Default............................... 75
Section 7.06 Reports by Trustee to Holders................... 76
Section 7.07 Compensation and Indemnity...................... 76
Section 7.08 Replacement of Trustee.......................... 77
Section 7.09 Successor Trustee by Merger, Etc................ 78
Section 7.10 Eligibility; Disqualification................... 78
Section 7.11 Preferential Collection of Claims
Against Company.............................. 79
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's
Obligations.................................. 79
Section 8.02 Legal Defeasance and Covenant
Defeasance................................... 81
Section 8.03 Application of Trust Money...................... 85
Section 8.04 Repayment to Company or Subsidiary
Guarantors................................... 85
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Section 8.05 Reinstatement................................... 86
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders...................... 87
Section 9.02 With Consent of Holders......................... 87
Section 9.03 Compliance with TIA............................. 89
Section 9.04 Revocation and Effect of Consents............... 89
Section 9.05 Notation on or Exchange of
Securities................................... 90
Section 9.06 Trustee To Sign Amendments, Etc................. 90
ARTICLE TEN
GUARANTEE
Section 10.01 Unconditional Guarantee......................... 91
Section 10.02 Severability.................................... 92
Section 10.03 Release of a Subsidiary Guarantor............... 92
Section 10.04 Limitation of Subsidiary
Guarantor's Liability........................ 93
Section 10.05 Subsidiary Guarantors May
Consolidate, etc., on Certain
Terms........................................ 93
Section 10.06 Contribution.................................... 94
Section 10.07 Waiver of Subrogation........................... 95
Section 10.08 Execution of Guarantee.......................... 96
Section 10.09 Waiver of Stay, Extension or Usury
Laws......................................... 96
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls.................................... 97
Section 11.02 Notices......................................... 97
Section 11.03 Communications by Holders with
Other Holders................................ 98
Section 11.04 Certificate and Opinion as to
Conditions Precedent......................... 98
Section 11.05 Statements Required in Certificate
or Opinion................................... 99
Section 11.06 Rules by Trustee, Paying Agent,
Registrar.................................... 99
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Section 11.07 Legal Holidays.................................. 99
Section 11.08 Governing Law................................... 100
Section 11.09 No Adverse Interpretation of Other
Agreements................................... 100
Section 11.10 No Recourse Against Others...................... 100
Section 11.11 Successors...................................... 100
Section 11.12 Duplicate Originals............................. 100
Section 11.13 Severability.................................... 101
Section 11.14 No Violation.................................... 101
Signatures....................................................... S-1
Exhibit A - Form of Note with Guarantee
Exhibit B - Form of Legend for Global Notes
Exhibit C - Form of Certificate To Be Delivered
in Connection with Transfers to Non-
QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered
in Connection with Transfers Pursuant
to Regulation S
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 June 6, 1996, among RALPHS GROCERY COMPANY, a
Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS, and NORWEST
BANK MINNESOTA, National Association, 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
10.45% Senior Notes due 2004:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means (i) with respect to any person that
becomes a Subsidiary of the Company (or is merged into the Company or any of
its Subsidiaries) after the Issue Date, Indebtedness of such person or any of
its Subsidiaries existing at the time such person becomes a Subsidiary of the
Company (or is merged into the Company or any of its Subsidiaries) and which
was not incurred in connection with, or in contemplation 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
Subsidiaries, any Indebtedness assumed by the Company or any of its
Subsidiaries in connection with the acquisition of any assets from another
person (other than the Company or any of its Subsidiaries), and which was not
incurred by such other person in connection with, or in contemplation of, such
acquisition.
"Adjusted Net Assets" shall have the meaning provided in Section
10.06.
"Affiliate" means, with respect to any person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified 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 indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing. Notwithstanding the foregoing,
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the term "Affiliate," with respect to the Company and its Subsidiaries, shall
not include BT Securities Corporation or any of its Affiliates.
"Affiliate Transaction" shall have the meaning provided in Section
4.11.
"Agent" means any Registrar, Paying Agent or co- Registrar.
"Agent Members" has the meaning provided in Section 2.14.
"Apollo Advisors, L.P." means Apollo Advisors, L.P., a Delaware
limited partnership.
"Asset Sale" means, with respect to any person, any sale, transfer
or other disposition or series of sales, transfers 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
subsidiaries 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 subsidiary 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 only Excluded Assets, (ii) resulting in Net Proceeds
to the Company and the Subsidiaries of $500,000 or less, (iii) pursuant to any
foreclosure of assets or other remedy provided by applicable law to a creditor
of the Company or any Subsidiary with a Lien on such assets, which Lien is
permitted under this Indenture, provided that such foreclosure or other remedy
is conducted in a commercially reasonable manner or in accordance with any
Bankruptcy Law, (iv) involving only Cash Equivalents or inventory in the
ordinary course of business or obsolete equipment in the ordinary course of
business consistent with past practices of the Company, (v) involving only the
lease or sub-lease of any real or personal property in the ordinary course of
business or (vi) the proceeds of such Asset Sale which are not applied as
contemplated in Section 4.16 and which together with all other such Asset Sale
Proceeds do not exceed $20 million.
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"Average Life" means, as of the date of determination, 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 each 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.
"Board of Directors" means, with respect to any person, the Board
of Directors of such person or of a subsidiary of such person or any duly
authorized committee of the Board of Directors.
"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, participation or other equivalents (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 capitalized 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 Standard &
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 aggregating at least $500 million and maturing not more than one year
from the date of creation thereof, (iv) repurchase agreements that are secured
by a perfected security interest in an obligation described in clause (i) and
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are with any bank described in clause (iii), (v) shares of any money market
mutual fund that (a) has at least 95% of its assets invested continuously in
the types of investments referred to in clauses (i) and (ii) above, (b) has net
assets of not less than $500 million, and (c) has the highest rating obtainable
from either Standard & Poor's Ratings Group or Moody's Investors Service, Inc.
and (vi) 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 Investors 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 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 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 provided in Section
4.15.
"Change of Control Offer" shall have the meaning provided in
Section 4.15.
"Change of Control Payment Date" shall have the meaning provided in
Section 4.15.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any person, any and all
shares, interests or other participations in, and other
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equivalents (however designated and whether voting or nonvoting) of, such
person's common stock, whether outstanding at the Issue Date or issued after
the Issue Date, and includes, without 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 Indenture and thereafter means such
successor.
"Consolidated Net Income," means, with respect to any person, for
any period, the aggregate of the net income (or loss) of such person and its
subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (a) the net income of any other person in which such
person or any of its subsidiaries has an interest (which interest does not
cause the net income of such other person to be consolidated with the net
income of such person and its subsidiaries 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 person that is subject to
any Payment Restriction shall be excluded to the extent such Payment
Restriction actually prevented 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 Subsidiaries in connection with the
Merger, including, without limitation, the divestiture of the Excluded Assets,
(viii) losses incurred by
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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;
provided further that solely for the purpose of computing amounts described in
subclause (c) of the first paragraph of Section 4.03, "Consolidated Net Income"
of the Company for any period shall be reduced by the aggregate amount of
dividends paid by the Company or a Subsidiary to Holdings pursuant to clauses
(v), (vi) and (x) of the definition of "Permitted Payments" during such period.
"Consolidated Net Worth" means, with respect to any person, the
total stockholders' equity (exclusive of any Disqualified Capital Stock) of
such person and its subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consulting Agreement" means that certain Consulting Agreement
dated as of June 14, 1995 and as in effect on the Issue Date, between the
Company, 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 Consulting
Agreement as in effect on the Issue Date).
"Credit Agent" means, at any time, the then-acting Administrative
Agent as defined in and under the Credit Agreement, which initially shall be
Bankers Trust Company. The Company shall promptly notify the Trustee of any
change in the Credit Agent.
"Credit Agreement" means the Credit Agreement, dated as of June 14,
1995, as amended and in effect on the Issue Date, by and among Food 4 Less, as
borrower, certain of its subsidiaries, Holdings, as guarantor, 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 each case, 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, replace or
refinance any borrowings and commitments then outstanding or permitted to be
outstanding under such Credit Agreement or any such prior agreement as the same
may be amended, extended, renewed, restated, supplemented or otherwise modified
(in each case, in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions). The term "Credit Agreement" shall
include all related or ancillary documents, including, without limitation, any
guarantee agreements and security documents. The Company
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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 Bankruptcy Law.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means the Depository Trust Company, its nominees and
successors.
"Discount Notes" means the 15.25% Senior Discount Notes due 2004 of
Holdings issued pursuant to the Discount Note Indenture, as the same may be
modified or amended from time to time and future refinancings thereof to the
extent such refinancings are permitted under this Indenture.
"Discount Note Indenture" means the indenture dated as of December
15, 1992 under which the 15.25% Senior Discount Notes due 2004 of Holdings were
issued, as the same may be modified or amended from time to time and future
refinancings thereof to the extent such refinancings are permitted under this
Indenture.
"Disqualified Capital Stock" means, with respect to any person, any
Capital Stock of such person or its subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which it is convertible, puttable or exchangeable is, or upon the happening of
an event or the passage of time would be, required to be redeemed or
repurchased by such person or its subsidiaries, including at the option of the
holder thereof, in whole or in part, or has, or upon the happening of an event
or passage of time would have, a redemption or similar payment due, on or prior
to the Maturity Date of the Securities or any other Capital Stock of such
person or its subsidiaries designated as Disqualified Capital 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
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duplication) (i) provisions for income taxes or similar charges recognized by
such person 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 (credits) 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
(excluding any such items which represent the reversal of any accrual of, or
cash reserve for, anticipated cash charges in any prior period) in each case
determined in accordance with GAAP and (ii) the amount of all cash payments
made by such person or its subsidiaries during such period to the extent that
such cash payment has been provided for in a restructuring reserve or charge
referred to in clause (v) above (and was not otherwise deducted in the
computation of Consolidated Net Income of such person for such period).
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
"Exchange Offer" has the meaning assigned to such term in the Note
Registration Rights Agreement, dated as of June 6, 1996, by and among the
Company and BT Securities Corp. as Initial Purchaser (the "Note Registration
Rights Agreement").
"Excluded Assets" means assets of the Company or any Subsidiary
required to be disposed of by applicable regulatory authorities in connection
with the Merger.
"Existing Indebtedness" means the following indebtedness of the
Company to the extent outstanding on the Issue Date; (a) the 10.45% Senior
Notes due 2004 issued pursuant to an indenture dated as of June 1, 1995; (b)
the 10.45% Senior Notes due 2000 issued pursuant to an indenture dated as of
April 15, 1992; (c) the 11% Senior Subordinated Notes due 2005 issued pursuant
to an indenture dated as of June
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1, 1995; (d) the 9% Senior Subordinated Notes due 2003 issued pursuant to an
indenture dated as of March 30, 1993; (e) the 10<% Senior Subordinated Notes
due 2002 issued pursuant to an indenture dated as of July 29, 1992; (f) the
13.75% Senior Subordinated Notes due 2005 issued pursuant to an indenture dated
as of June 1, 1995, and (g) the 13.75% Senior Subordinated Notes due 2001
issued pursuant to an indenture dated as of June 15, 1991.
"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
obligations, 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), (ii) dividend requirements on Preferred
Stock of such person and its consolidated subsidiaries (whether in cash or
otherwise (except dividends payable in shares of Qualified Capital Stock))
declared or paid or required to be declared or paid during such period (except
to the extent accrued in a prior period) and excluding items eliminated in
consolidation and (iii) dividends declared or paid or scheduled or required to
be declared or paid to Holdings which are permitted to be paid pursuant to
clauses (v) and (vi) of the definition of "Permitted Payments." For purposes
of this definition, (a) interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by the Board of
Directors of such person (as evidenced 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 Indebtedness 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 chosen, 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
17
clause (ii) above, dividend requirements shall be increased to an amount
representing the pre-tax 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 the amount of 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 fiscal year
immediately preceding the date of the transaction giving rise to the need to
calculate Fixed Charges.
"Food 4 Less" means Food 4 Less Supermarkets, Inc., a Delaware
corporation, and its successors, including, without limitation, the Company.
"Foreign Exchange Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations 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 June 14, 1995.
"Global Note" has the meaning provided in Section 2.01.
"Guarantee" means the guarantee of each Subsidiary Guarantor set
forth in Article Ten and any additional guarantee of the Securities executed by
any Subsidiary of the Company.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Holdings" means Food 4 Less Holdings, Inc., a Delaware
corporation, and its successors.
"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 instruments or letters of
credit or representing the balance deferred and unpaid of the purchase price of
any property
18
(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 extended 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 payment 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) obligations 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 properties or assets, as
determined in good faith by the Board of Directors of such person, which
determination shall be evidenced by a Board Resolution). For purposes of the
preceding sentence, the "maximum fixed repurchase price" of any Disqualified
Capital Stock that does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Capital Stock (or any equity security for which it may be exchanged or
converted), such fair market value shall be determined in good faith by the
Board of Directors of such person, which determination shall be evidenced by a
Board Resolution. For purposes of this Indenture, Indebtedness incurred by any
person that is a general partnership (other than non-recourse Indebtedness)
shall be deemed to have been incurred by the general partners of such
partnership pro rata in accordance with their respective interests in the
liabilities of such partnership unless any such general partner shall, in the
reasonable determination of the Board of Directors of the
19
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 supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a reputable accounting,
appraisal or nationally recognized investment banking or consulting firm that
is, in the reasonable judgment of the Board of Directors of the Company,
qualified to perform the tasks for which such firm has been engaged and
disinterested and independent with respect to the Company and its Affiliates.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"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
providing interest rate protection.
"Investment" by any person in any other person means any investment
by such person in such other person, whether by 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 Holdings or any of its Subsidiaries and
other similar customary expenses incurred, in each case in the ordinary course
of business consistent with past practice) or similar credit extension
constituting Indebtedness of such other person, and any guarantee of
Indebtedness of any other person.
20
"Issue Date" means the date of original issuance of the Securities
under this Indenture.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Letter of Credit Obligations" means Indebtedness of the Company or
any of its Subsidiaries with respect to letters of credit issued pursuant to
the Credit Agreement, and for purposes 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 then 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 constitute
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 June 15, 2004.
"Merger" means (i) the merger of Food 4 Less into RSI (with RSI
surviving 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 RSI (with RSI 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, Food 4 Less, Inc., Food 4 Less, RSI
and the stockholders of RSI, as such agreement was in effect on June 14, 1995.
"Net Cash Proceeds" means the Net Proceeds of any Asset Sale
received in the form of cash or Cash Equivalents.
21
"Net Proceeds" means (a) in the case of any Asset Sale or any
issuance and sale by any person of Qualified Capital 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 Resolution) 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 proceeds 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 Discount Debenture Indenture" means the indenture dated as of
June 1, 1995 under which the 13 5/8% Senior Discount Debentures due 2005 of
Holdings were issued, as the same may be modified and amended from time to time
and refinancings thereof to the extent such refinancings are permitted under
this Indenture.
"New Discount Debentures" means the 13 5/8% Senior Discount
Debentures due 2005 of Holdings issued pursuant to the New Discount Debenture
Indenture, as the same may be modified and amended from time to time and future
refinancings thereof to the extent such refinancings are permitted under this
Indenture.
"New F4L Senior Subordinated Notes" means the 13.75% senior
subordinated notes due 2005 issued pursuant to the Senior Subordinated Note
Indenture dated as of June 1, 1995 that are issued in exchange for Old F4L
Senior Subordinated Notes.
"1995 Senior Note Indenture" means the indenture dated as of June
1, 1995 under which $520,326,000 of 10.45% Senior Notes due 2004 were issued,
as the same may be modified and amended from time to time and refinancings
thereof to the extent such refinancings are permitted under this Indenture.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
22
"Note Registration Rights Agreement" has the meaning provided in
the definition of "Exchange Offer."
"Officer" means, with respect to any person, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Controller, or the Secretary of such person.
"Officers' Certificate" means, with respect to any person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such person and otherwise complying with
the requirements of Sections 11.04 and 11.05.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
"Old F4L Senior Subordinated Notes" means the 13.75% senior
subordinated notes due 2001 issued pursuant to an indenture dated as of June
15, 1991.
"Old RGC Indentures" means the indentures between Ralphs Grocery
Company, as issuer, and United States Trust Company of New York, as trustee,
pursuant to which the Old RGC Notes were issued.
"Old RGC Notes" means the 9% Senior Subordinated Notes due 2003 of
Ralphs Grocery Company and the 10 <% Senior Subordinated Notes due 2002 of
Ralphs Grocery Company.
"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 immediately 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. 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 Investment, becomes a subsidiary of such person, (b) the
23
acquisition, during the Reference Period (by merger, consolidation or purchase
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 calculated after giving effect (without duplication), on a
pro forma basis for the Forward Period, to any Indebtedness incurred or repaid
on or after the first day of the Forward Period and prior to the Transaction
Date. If such person or any of its subsidiaries directly or indirectly
guarantees any Indebtedness of a third person, the Operating Coverage Ratio
shall give effect to the incurrence of such Indebtedness as if such person or
subsidiary had directly incurred such guaranteed Indebtedness.
"operating lease" means any lease the obligations under which do
not constitute Capitalized Lease Obligations.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05. Unless otherwise required by the Trustee, the legal
counsel may be an employee of or counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means, with respect to the Company or any
Subsidiary Guarantor, Indebtedness of such person which ranks pari passu in
right of payment to the Securities or the Guarantee of such Subsidiary
Guarantor, as the case may be (in each case, whether or not secured by any
Lien).
"Paying Agent" shall have the meaning provided in Section 2.03,
except that, for the purposes of Articles Three and Eight and Sections 4.15 and
4.16, the Paying Agent shall not be the Company or an Affiliate of the Company.
"Payment Restriction" means, with respect to a subsidiary of any
person, any encumbrance, restriction or limitation, 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 distributions on its Capital
Stock or make payments on any obligation, 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
24
(c) transfer any of its properties or assets to such person or any other
subsidiary of such person, or (ii) such person or any other subsidiary of such
person to receive or retain any such (a) dividends, distributions or payments,
(b) loans or advances, or (c) transfer of properties or assets.
"Permitted Holder" means (i) Food 4 Less Equity Partners, 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 of its subsidiaries or any participant therein,
(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 (and the Company and each Subsidiary (to the extent it is not
an obligor) may guarantee such Indebtedness) pursuant to (i) the Term Loans in
an aggregate principal amount at any time outstanding not to exceed $600
million less the aggregate amount of all principal repayments thereunder
pursuant to and in accordance with the requirements of Section 4.16 subsequent
to June 14, 1995, (ii) the revolving credit facility under the Credit Agreement
(including the Letter of Credit Obligations) in an aggregate principal amount
at any time outstanding not to exceed $325 million, less all permanent
reductions thereunder pursuant to and in accordance with the requirements of
Section 4.16, and (iii) any Indebtedness incurred under the Credit Agreement
pursuant to and in accordance with (A) clause (m) of this definition and (B)
Section 4.12 (other than Permitted Indebtedness that is not incurred pursuant
to clause (m) or this clause (a) of this definition); (b) Indebtedness of the
Company or a Subsidiary Guarantor owed to and held by the Company or a
Subsidiary Guarantor; (c) Indebtedness incurred by the Company or any
Subsidiary in connection with the purchase or improvement of property (real or
personal) or equipment or other capital expenditures in the ordinary course of
business (including for the purchase of assets or stock of any retail grocery
store or business) or consisting of Capitalized Lease Obligations, provided
that (i) at the time of the incurrence thereof, such Indebtedness, together
with any other Indebtedness incurred during the most recently completed four
fiscal quarter period in reliance upon this clause (c) does not exceed, in the
aggregate, 3% of net sales of the Company and its Subsidiaries during the most
recently completed four fiscal quarter period on a consolidated basis
(calculated on a pro forma basis if the date of incurrence is prior to the end
of
25
the fourth fiscal quarter following the Merger) and (ii) such Indebtedness,
together with all then outstanding Indebtedness incurred in reliance upon this
clause (c) does not exceed, in the aggregate, 3% of the aggregate net sales of
the Company and its Subsidiaries during the most recently completed twelve
fiscal quarter period on a consolidated basis (calculated on a pro forma basis
if the date of incurrence is prior to the end of the twelfth fiscal quarter
following the Merger); (d) Indebtedness incurred by the Company or any
Subsidiary in connection with capital expenditures in an aggregate principal
amount not exceeding $150 million (less the aggregate principal amount of any
Indebtedness incurred by the Company or any Subsidiary on or prior to the Issue
Date in reliance on clause (d) of the definition of "Permitted Indebtedness"
under the 1995 Senior Note Indenture), provided that such capital expenditures
relate solely to the integration of the operations of RSI, Food 4 Less and
their respective subsidiaries as described in the Offering Memorandum of the
Company relating to the Securities dated June 3, 1996; (e) Indebtedness of the
Company or any Subsidiary incurred under Foreign Exchange Agreements and
Interest Swap Obligations entered into with respect to Indebtedness otherwise
permitted to be outstanding pursuant to Section 4.12 or this definition of
Permitted Indebtedness in a notional amount not exceeding the aggregate
principal amount of such Indebtedness; (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 Subsidiary Guarantor of Indebtedness incurred by
a wholly-owned Subsidiary Guarantor so long as the incurrence of such
Indebtedness incurred by such wholly-owned Subsidiary Guarantor is permitted
under the terms of this Indenture; (h) Refinancing Indebtedness; (i)
Indebtedness for letters of credit relating to workers' compensation claims and
self-insurance or similar requirements in the ordinary course of business; (j)
Existing Indebtedness and other Indebtedness outstanding on the Issue Date; (k)
Indebtedness arising from guarantees of Indebtedness of the Company or any
Subsidiary or other agreements of the Company or a Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or Subsidiary, other than guarantees of Indebtedness incurred by any
person acquiring all or any portion of such business, assets or Subsidiary for
the purpose of financing such acquisition; provided that the maximum aggregate
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 disposition; (l) obligations in respect of performance bonds and
completion
26
guarantees provided by the Company or any Subsidiary in the ordinary course of
business; and (m) additional Indebtedness of the Company and the Subsidiary
Guarantors in an amount not to exceed $175 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 connection with an Asset Sale made pursuant to
Section 4.16 or any other disposition of assets not constituting an Asset Sale
by reason of the $500,000 threshold contained in the definition thereof, (iii)
cash and Cash Equivalents, (iv) Investments existing on the Issue Date, (v)
Investments specifically permitted by and made in accordance with Section 4.11,
(vi) Investments by Subsidiary Guarantors in other Subsidiary Guarantors or the
Company and Investments by the Company in a Subsidiary Guarantor in the form of
Indebtedness owed to the Company by such Subsidiary Guarantor and Investments
by Subsidiaries which are not Subsidiary Guarantors in other Subsidiaries which
are not Subsidiary Guarantors and (vii) additional Investments in an aggregate
amount not exceeding $15 million.
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges or claims not yet due or which are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if a reserve or other appropriate provision, if any, as shall be required
in conformity with 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
27
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 bankers' acceptances issued or created for the
account of such person 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 proceeds thereof; (viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of nondelinquent
customs duties in connection with the importation of goods; (ix) judgment and
attachment Liens not giving rise to a Default or Event of Default; (x) leases
or subleases granted to others not interfering in any material respect with the
business of the Company or any Subsidiary; (xi) Liens encumbering 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,
regulatory, contractual or warranty requirements of the Company or its
Subsidiaries for which a reserve or other appropriate provision, 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 accordance with
past practices; (xiv) any interest or title of a lessor in the property subject
to any lease, whether characterized as capitalized or operating other than any
such interest or title resulting from or arising out of a default by the
Company 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 personal property that are otherwise permitted
under this Indenture and under which the Company or any Subsidiary is lessee;
and (xvi) 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
subsequent to June 14, 1995 and on or prior to such time.
"Permitted Payments" means (i) any payment by the Company or any
Subsidiary, or any dividend by the Company or any Subsidiary to Holdings the
proceeds of which are utilized
28
by Holdings to make payments, to The Yucaipa Companies or the principals or any
Affiliates thereof for consulting, management, investment banking or similar
services, or for reimbursement of losses, costs and expenses pursuant to the
Consulting Agreement, (ii) any payment by the Company or any Subsidiary
pursuant to the Second Amended and Restated Tax Sharing Agreement, dated as of
June 14, 1995, by and among the Company, all direct and indirect Subsidiaries
and Holdings, as such Tax Sharing 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 Food 4 Less and Holdings, as in effect on the Issue Date,
(iv) any payment by the Company or any Subsidiary, or any dividend by the
Company or any Subsidiary to Holdings the proceeds of which are used by
Holdings to make payments, (a) in connection with repurchases of outstanding
shares of the Company's or Holdings' Common Stock following the death,
disability or termination of employment of management stockholders, and (b) of
amounts required to be paid by Holdings, the Company or any of its Subsidiaries
to participants or former 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 or loans to Holdings in an amount sufficient to enable
Holdings to make payments of interest required to be made in respect of the
Discount Notes in an amount not to exceed the amount payable thereunder in
accordance with the terms thereof in effect on June 14, 1995, (vi) from and
after June 15, 2000, payments of cash dividends to Holdings in an amount
sufficient to enable Holdings to make payments of interest required to be made
in respect of the Seller Debentures and the New Discount Debentures in an
amount not to exceed the amount payable thereunder in accordance with the terms
thereof in effect on June 14, 1995, (vii) dividends or other payments to
Holdings sufficient to enable 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 and the
registration under applicable laws and regulations of its debt or equity
securities, (viii) dividends by the Company to Holdings of the Net Cash
Proceeds of an Asset Sale to the extent that (a) the Company or any of the
Subsidiaries is
29
required pursuant to this Indenture to utilize such Net Cash Proceeds to repay
(or offer to repay) the Securities (and has complied with all such
requirements), (b) such Net Cash Proceeds are not required to be and have not
been utilized to repay outstanding Indebtedness of the Company or any of the
Subsidiaries and (c) Holdings is required pursuant to the documents governing
any outstanding Indebtedness of Holdings to utilize such Net Cash Proceeds to
repay such Indebtedness (it being understood that only the amounts not utilized
as described in clauses (a) and (b) of this clause (viii) shall be permitted to
be distributed to Holdings pursuant to this clause (viii)), (ix) the repurchase
by the Company of up to $10 million aggregate principal amount of Old RGC
Notes, at a repurchase price of 101% of the principal amount thereof plus
accrued interest to the repurchase date, pursuant to the "change of control
purchase offer" provisions set forth in section 1014 of the Old RGC Indentures
as in effect on June 14, 1995, and (x) for so long as the sole business
activity of such partnership is to acquire, hold, sell, exchange, transfer or
otherwise dispose of all or any portion of the New Discount Debentures and to
manage its investment in the New Discount Debentures, any payment by the
Company or any Subsidiary, or any dividend or loan to Holdings, the proceeds of
which are utilized by Holdings to fund ongoing costs and expenses of RGC
Partners, L.P. pursuant to the Subscription Agreement and the Registration
Rights Agreement.
"Permitted Transferees" means, with respect to any person, (i) any
Affiliate of such person, (ii) the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries 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 person 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, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
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"Plan of Liquidation" means, with respect to any person, a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially 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) which is preferred as to the
payment of dividends or distributions, 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 Securities) means
the principal of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend initially set forth on
the Securities in the form set forth in Exhibit A.
"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 Regulation S-X under the Securities Act of 1933, as amended,
as interpreted by the Company's chief financial officer or Board of Directors
in consultation with its independent certified public accountants.
"Public Equity Offering" means an underwritten public offering of
Common Stock of the Company or Holdings pursuant to a registration statement
filed with the Commission in accordance with the Securities Act which public
equity offering results in gross proceeds to the Company or Holdings, as the
case may be, of not less than $20,000,000; provided, however, that in the case
of a Public Equity Offering by Holdings, Holdings contributes to the capital of
the Company net cash proceeds in an amount sufficient to redeem the Securities
called for redemption in accordance with the terms thereof.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
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"Qualified Capital Stock" means, with respect to any person, any
Capital Stock of such person that is not Disqualified Capital Stock.
"Ralphs Grocery Company" means Ralphs Grocery Company, Inc., a
Delaware corporation, and its successors.
"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 redemption pursuant to this Indenture
and Paragraph 5 of the Securities annexed hereto as Exhibit A.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities annexed hereto as Exhibit A.
"Reference Date" shall have the meaning provided in Section 4.03.
"Reference Period" shall have the meaning provided in the
definition of "Operating Coverage Ratio" contained in this Section 1.01.
"Refinancing Indebtedness" means, with respect to any person,
Indebtedness of such person issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used to substantially
concurrently repay, redeem, refund, refinance, discharge or otherwise retire
for value, in whole or in part (collectively, "repay"), or constituting an
amendment, modification or supplement to, or a deferral or renewal of
(collectively, an "amendment"), any Indebtedness of such person existing on the
Issue Date or Indebtedness (other than Permitted Indebtedness, except Permitted
Indebtedness incurred pursuant to clauses (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 commitment for subsequent borrowings, with a maximum commitment
32
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 connection 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.
"Registration Rights Agreement" means that certain Registration
Rights Agreement by and between RGC Partners, L.P., Holdings and Food 4 Less,
as such Registration Rights Agreement may be amended or replaced, so long as
any amounts paid by Holdings and the Company under any amended or replacement
agreement do not exceed the amounts payable by Holdings and the Company under
such Registration Rights Agreement as in effect on June 14, 1995.
"Regulation S" means Regulation S under the Securities Act.
"Related Business Investment" means (i) any Investment by a person
in any other person a majority of whose revenues are derived from the operation
of one or more retail grocery 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 cooperative or other supplier,
including, without limitation, any joint venture which is intended to supply
any product or 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,
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
33
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.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Security constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"RSI" means Ralphs Supermarkets Inc., a Delaware corporation.
"Securities" means the Company's 10.45% Senior Notes due 2004, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture (including the Exchange Notes and
the Private Exchange Notes (in each case, as defined in the Note Registration
Rights Agreement)).
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Seller Debentures" means the 13 5/8% Senior Subordinated
Pay-in-Kind Debentures due 2007 of Holdings issued pursuant to the Seller
Debenture Indenture, including any additional 13 5/8% Senior Subordinated
Pay-in-Kind Debentures due 2007 issued as interest thereon, in each case, as
such Seller Debentures may be modified or amended from time to time and future
refinancings thereof to the extent such refinancings are permitted under this
Indenture.
"Seller Debenture Indenture" means the indenture between Holdings
and Norwest Bank, Minnesota, National Association, as trustee, dated as of June
1, 1995 under which the 13 5/8% Senior Subordinated Pay-in-Kind Debentures due
2007
34
of Holdings were issued, as the same may be modified and amended from time to
time and refinancings thereof to the extent such refinancings are permitted
under this Indenture.
"Senior Subordinated Note Indentures" means, together, (i) the
indenture dated as of June 1, 1995 between the Company, the Subsidiary
Guarantors and United States Trust Company of New York, as trustee, pursuant to
which the Company issued $524,055,000 of 11% Senior Subordinated Notes due
2005, and (ii) the indenture dated as of June 1, 1995 between the Company, the
Subsidiary Guarantors and United States Trust Company of New York, as trustee,
pursuant to which the Company issued $140,184,000 of 13.75% Senior Subordinated
Notes due 2005.
"Significant Stockholder" means, with respect to any person, any
other person who is the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of more than 10% of any class of equity securities of
such person that are entitled to vote on a regular basis for the election of
directors of such person.
"Significant Subsidiary" means each subsidiary of the Company that
is either (a) a "significant subsidiary" as defined in Rule 1-02(v) of
Regulation S-X under the Securities Act and the Exchange Act (as such
regulation is in effect on the Issue Date) 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 subsidiaries of any other distribution in respect of, such person's
Qualified Capital Stock or any warrants, rights or options to purchase or
acquire shares of any class of such Capital 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 Qualified 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 Capital 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
35
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.
"Subscription Agreement" means that certain Subscription Agreement,
between RGC Partners, L.P., Holdings, Food 4 Less and the partnership investors
listed on Exhibit A thereto, as such Subscription Agreement may be amended or
replaced, so long as any amounts paid by Holdings and the Company under any
amended or replacement agreement do not exceed the amounts payable by Holdings
and the Company under such Subscription Agreement as in effect on June 14,
1995.
"subsidiary" of any person means (i) a corporation a majority of
whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly, owned by
such person, by one or more subsidiaries of such person or by such person and
one or more subsidiaries of such person or (ii) a partnership in which such
person or a subsidiary of such person is, at the date of determination, a
general partner of such partnership, but only if such person or its subsidiary
is entitled to receive more than fifty percent of the assets of such
partnership 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 subsidiaries of such person, directly or
indirectly, at the date of determination, has (x) at least a majority ownership
interest 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 California, Inc., Food 4 Less Merchandising,
Inc., Food 4 Less GM, Inc., Food 4 Less of Southern California, Inc., and
Crawford Stores, Inc., (ii) each of the Company's Subsidiaries which becomes a
guarantor of the Securities in compliance with the provisions set forth in
Section 4.17, and (iii) each of the Company's Subsidiaries executing a
supplemental indenture in
36
which such Subsidiary agrees to be bound by the terms of this Indenture.
"Term Loans" means the term loan facility under the Credit
Agreement and any agreement governing Indebtedness incurred to refund, replace
or refinance any borrowings outstanding under such facility or under any prior
refunding, replacement or refinancing thereof (in each case, in whole or in
part, and without limitation as to amount, terms conditions, covenants and
other provisions).
"The Yucaipa Companies" means The Yucaipa Companies, a California
general partnership, or any successor thereto which is an affiliate of Ronald
W. Burkle or his Permitted Transferees and which has been established for the
sole purpose of changing the form of The Yucaipa Companies from that of a
partnership to that of a limited liability company or any other form of entity
which is not materially adverse to the rights of the Holders under this
Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code {{
77aaa-77bbbb), as amended, as in effect on the date this Indenture is qualified
under the TIA, except as otherwise provided in Section 9.03.
"Transaction Date" shall have the meaning provided in the
definition of "Operating Coverage Ratio" contained in this Section 1.01.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in
Section 8.02.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Yearly Period" means each fiscal year of the Company.
37
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 Company, any
Subsidiary Guarantor, or any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; 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.
38
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.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities in
registered form, substantially in the form set forth in Exhibit A (the "Global
Note"), deposited with the Trustee, as custodian for the Depository, and shall
bear the legend set forth in Exhibit B, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Securities
in registered form in substantially the form set forth in Exhibit A (the
"Offshore Physical Notes"). Securities offered and sold in reliance on any
other exemption from registration under the Securities Act other than as
described in the preceding paragraph shall be issued, and Securities offered
and sold in reliance on Rule 144A may be issued, in the form of permanent
certificated Securities in registered form, in substantially the form set forth
in Exhibit A (the "U.S. Physical Notes"). The Offshore Physical Notes and the
U.S. Physical Notes are sometimes collectively herein referred to as the
"Physical Notes."
39
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. Each Subsidiary Guarantor shall execute the Guarantee in the manner
set forth in Section 10.08.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $100,000,000 upon a written order of the
Company in the form of an Officers' Certificate. The Trustee may authenticate
Securities of a separate series for issuance in connection with an Exchange
Offer upon written order in the form of an Officers Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated, the
names of the Persons in which such Securities shall be registered and the date
on which the Securities are to be authenticated, and shall further specify the
amount of such Securities to be issued as the Global Note, Offshore Physical
Notes or U.S. Physical Notes. The aggregate principal amount of Securities
outstanding at any time may not exceed $100,000,000, 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 Securities in
substitution of Securities originally issued to reflect any name change of the
Company.
The Trustee may appoint an authenticating agent reasonably
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.
40
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Secu- rities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company may act as its own Registrar or Paying Agent except that for the
purposes of Articles Three and Eight and Sections 4.15 and 4.16, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent.
The Company initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all assets held by the Paying Agent for the payment
of 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
41
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund. The Company at
any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, upon 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.
Subject to the provisions of Sections 2.15 and 2.16, 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 principal 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 transaction are met; provided, however,
that the Securities surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied 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 writing. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-Registrar's
request. No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Sections 2.02, 2.07, 2.10, 3.06, 4.15, 4.16
or
42
9.05). The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Notes may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Security shall be required to be reflected in a book entry.
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 Security 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 obligation of the
Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities 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 Subsidiary
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
43
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company, the Subsidiary 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 temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. 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 redemption or satisfaction of the
Indebtedness represented by
44
such Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall, unless the Trustee fixes another record date pursuant to Section
6.10, pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment 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 number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation 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.
SECTION 2.14. Book-Entry Provisions for
Global Note._____________
(a) The Global Note initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under
the Global Note, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
45
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of the Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.15. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Note if (i) the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the Global Note and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Note an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to paragraph
(b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.15, bear the legend regarding transfer restrictions applicable to
the Physical Notes set forth in Exhibit A.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and
46
persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.
SECTION 2.15. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after June
6, 1999 and the transferor certifies that the Restricted Security was not
acquired from the Company or Affiliate of the Company less than three
years prior to the date of the proposed transfer or (y) (1) in the case
of a transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
47
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Security stating, or has otherwise advised the Company and
the Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal amount
of the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.15 exist or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a
48
Security acknowledges the restrictions on transfer of such Security set forth
in this Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15
for a period of three years. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5
of the Securities, it shall notify the Trustee, with a copy to the Credit
Agent, of the Redemption Date and the principal amount of Securities to be
redeemed and whether it wants the Trustee to give notice of redemption to the
Holders at least 30 days (unless a shorter notice shall be satisfactory to the
Trustee) but not more than 60 days before the Redemption Date. In order to
effect a redemption pursuant to Paragraph 5 of the Securities with the proceeds
of a Public Equity Offering, the Company shall send the redemption notice not
later than 60 days after the consummation of such Public Equity Offering. Any
such notice may be cancelled at any time prior to notice of such redemption
being mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata by lot or by any other
method that the Trustee considers fair and appropriate and, if such Securities
are listed on any securities exchange, by a method that complies with the
requirements of such exchange; provided, however, that any redemption pursuant
to Paragraph 5 of the Securities with the proceeds of a Public Equity Offering
shall be made on a pro rata basis unless such method is otherwise legally
prohibited.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption
49
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 Securities called for redemption also apply to
portions of Securities 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 Trustee and the Credit Agent. In order to effect a
redemption pursuant to Paragraph 5 of the Securities with the proceeds of a
Public Equity Offering, the Company shall send the redemption notice not later
than 60 days after the consummation of such Public Equity Offering. At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the redemption
payment interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Securities redeemed;
(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
50
in aggregate principal amount equal to the unredeemed portion 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 aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying
Agent, such Securities called for redemption shall be paid at the Redemption
Price. Securities that are redeemed by the Company or that are purchased by
the Company pursuant to a Net Proceeds Offer as described in Section 4.16 or
pursuant to a Change of Control Offer as described in Section 4.15 or that are
otherwise acquired by the Company will be surrendered to the Trustee for
cancellation.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of
all Securities to be redeemed on that date (other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation). The Paying Agent shall promptly
return to the Company any U.S. Legal Tender so deposited which is not required
for that purpose upon the written request of the Company, except with respect
to monies owed as obligations to the Trustee pursuant to Article Seven hereof.
If the Company complies with the preceding paragraph then, unless
the Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
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.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent (other than the
Company or a Subsidiary) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the rate
borne by the Securities and it shall pay interest on overdue installments of
interest at the same rate, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03 hereof. The Company
shall give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 11.02.
SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall cause each of its Subsidiaries not
to, directly or indirectly, make any Restricted Payment if, at the time of such
proposed Restricted Payment, or after giving effect thereto, (a) a Default or
an Event of Default shall have occurred and be continuing, (b) the Company
could not incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.12 or (c) the aggregate amount expended for
all Restricted Payments, including such proposed Restricted Payment (the amount
of any Restricted Payment, if other than cash, to be the fair market value
thereof at the date of payment, as determined in good faith by the Board of
Directors of the Company), subsequent to June 14, 1995, shall exceed the sum of
(i) 50% of the aggregate Consolidated Net Income (or if such aggregate
Consolidated Net Income is a loss, minus 100% of such loss) of the Company
52
earned subsequent to June 14, 1995 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 June 14, 1995 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 Subsidiary,
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 June 14, 1995, plus (iv) $25 million.
Notwithstanding the foregoing, if no Default or Event of Default
shall have occurred and be continuing as a consequence 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 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 Company, (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 Average 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), (vii), and (viii)
of the definition of the term "Permitted 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), (ii), (v), (vi), (ix) and (x) 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
53
Restricted Payments pursuant to subclause (c) in the immediately preceding
paragraph.
Prior to making any Restricted Payment under the first paragraph of
this Section 4.03, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the computation by which the amount available for
Restricted Payments pursuant to such paragraph was determined. The Trustee
shall have no duty or responsibility to determine the accuracy or correctness
of this computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate or other existence of each of
its Significant Subsidiaries in accordance with the respective organizational
documents of each such Significant Subsidiary and the rights (charter and
statutory) and franchises of the Company and each such Significant Subsidiary;
provided, however, that the Company shall not be required to preserve, with
respect to itself, any right or franchise, and with respect to any of its
Significant Subsidiaries, any such existence, right or franchise, if the Board
of Directors of the Company or such Significant Subsidiary, as the case may be,
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any such Significant Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including 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 Subsidiaries; 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
material adverse effect on the financial condition or results
54
or operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, 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 provided, 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 manner, 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 corporations similarly situated in the industry,
unless the failure 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.
55
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days
after the end of the Company's fiscal year an Officers' 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
Officers 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 certificate, 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 Agreement, Default or Event of Default
occurred during such year or, if such signers do know of such an event of
default, Default or Event of Default, the certificate shall describe the event
of default, Default or Event of Default and its status with particularity. 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 recommendations
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
stating (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 attention and if such a Default has come to their attention, specifying
the nature and period of existence thereof.
(c) The Company shall deliver to the Trustee, forthwith 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 evidence of Indebtedness of the
Company or any of its Subsidiaries, 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.
56
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental 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 contested in good faith and by
appropriate proceedings and except for such noncompliances as would not in the
aggregate have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.09. SEC Reports.
The Company will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
report and of the information documents 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).
The Company shall provide to any Holder any information reasonably
requested by such Holder concerning the Company (including financial
statements) necessary in order to permit such Holder to sell or transfer
securities in compliance with Rule 144A under the Securities Act.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, 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 the Company from paying
all or any portion of the principal of or interest on the Securities 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
57
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) Neither the Company nor any of its Subsidiaries shall (i)
sell, lease, transfer or otherwise dispose of any of its properties or assets,
or issue securities (other than equity securities which do not constitute
Disqualified Capital Stock) to, (ii) purchase any property, assets or
securities (other than equity securities which do not constitute Disqualified
Capital Stock) from, (iii) make any Investment in, or (iv) enter into or suffer
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 Subsidiary (an "Affiliate Transaction"), other than (x)
Affiliate Transactions permitted under Section 4.11(b) and (y) Affiliate
Transactions in the ordinary course of business that are fair to the Company or
such Subsidiary, as the case may be, and on terms at least as favorable as
might reasonably have been obtainable at such time from an unaffiliated party;
provided that (A) with respect to Affiliate Transactions involving aggregate
payments in excess of $1 million and less than $5 million, the Company or such
Subsidiary, as the case may be, shall have delivered an Officers' Certificate
to the Trustee certifying that such transaction or series of transactions
complies with clause (y) above (other than the requirements set forth in such
clause (y) that such Affiliate Transaction be in the ordinary course of
business), (B) with respect to Affiliate Transactions involving aggregate
payments in excess of $5 million and less than $15 million, the Company or such
Subsidiary, as the case may be, shall have delivered an Officers' Certificate
to the Trustee certifying that such Affiliate Transaction complies with clause
(y) above (other than the requirements set forth in such clause (y) that such
Affiliate Transaction be in the ordinary course of business) and that such
Affiliate Transaction has received the approval of a majority of the
disinterested members of the Board of Directors of the Company or the
Subsidiary, as the case may be, or in the absence of any such approval by the
disinterested members of the Board of Directors of the Company or the
Subsidiary, as the case may be, that an Independent Financial Advisor has
reasonably and in good faith determined that the financial terms of such
Affiliate Transaction are fair to the Company or such Subsidiary, as the case
may be, or that the terms of such Affiliate Transaction are at least as
favorable as might reasonably have been obtained at such time
58
from an unaffiliated party and that such Independent Financial Advisor has
provided written confirmation of such determination to the Board of Directors
and (C) with respect to Affiliate Transactions involving aggregate payments in
excess of $15 million, the Company or such Subsidiary, as the case may be,
shall have delivered to the Trustee a written opinion from an Independent
Financial Advisor to the effect that the financial terms of such Affiliate
Transaction are fair to the Company or such Subsidiary, as the case may be, or
that the terms of such Affiliate Transaction are at least as favorable as those
that might reasonably have been obtained at the time from an unaffiliated
party.
(b) The provisions of Section 4.11(a) shall not apply to (i) any
Permitted Payment, (ii) any Restricted Payment that is made in compliance with
the provisions of Section 4.03, (iii) reasonable and customary fees and
compensation paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary, as determined by the
Board of Directors of the Company or any Subsidiary or the senior management
thereof in good faith, (iv) transactions exclusively between or among the
Company and any of its wholly-owned Subsidiaries or exclusively between or
among such wholly-owned Subsidiaries, provided such transactions are not
otherwise prohibited by this Indenture, (v) any agreement as in effect as of
June 14, 1995 or any amendment thereto or any transaction contemplated thereby
(including pursuant 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 Company 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 Holdings) is a party as of June 14, 1995 and any similar agreements
which it (or Holdings) may enter into thereafter; provided, however, that the
existence of, or the performance by the Company or any Subsidiaries of
obligations under any future amendment to, any such existing agreement or under
any similar agreement entered into after June 14, 1995 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 complying with, the
provisions of Section 5.01 and (viii) transactions with suppliers or other
purchases or sales of goods or services, 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
59
Directors of the Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party.
SECTION 4.12. Limitation on Incurrences of
Additional Indebtedness.
The Company shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to incur, assume, guarantee, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for the payment of (collectively "incur") any Indebtedness other
than Permitted Indebtedness; provided, however, that if no Default with respect
to payment of principal of, or interest on, the Securities or Event of Default
under this Indenture shall have occurred and be continuing at the time of or as
a consequence of the incurrence of any such Indebtedness, the Company may incur
Indebtedness if immediately before and immediately after giving effect to the
incurrence of such Indebtedness the Operating Coverage Ratio of the Company
would be greater than 2.0 to 1.0; provided further a Subsidiary may incur
Acquired Indebtedness to the extent such Indebtedness could have been incurred
by the Company pursuant to the immediately preceding proviso. Notwithstanding
the foregoing the Company and the Subsidiaries may incur Indebtedness
represented by the Securities and the Guarantees.
In addition, neither the Company nor any Subsidiary Guarantor will,
directly or indirectly, in any event incur any Indebtedness that by its terms
(or by the terms of any agreement governing such Indebtedness) is subordinated
to any other Indebtedness of the Company or such Subsidiary Guarantor, as the
case may be, unless such Indebtedness is also by its terms (or by the terms of
any agreement governing such Indebtedness) made expressly subordinate to the
Securities or the Guarantee of such Subsidiary Guarantor, as the case may be,
to the same extent and in the same manner as such Indebtedness is subordinated
pursuant to subordination provisions that are most favorable to the holders of
any other Indebtedness of the Company or such Subsidiary Guarantor, as the case
may be.
SECTION 4.13. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries._____
The Company shall not, and shall not permit any Subsidiary 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
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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 Indebtedness 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 of any person, other than the person
so acquired and (z) such Indebtedness is otherwise permitted to be incurred
pursuant to Section 4.12), (iv) secured Indebtedness otherwise permitted to be
incurred pursuant to Sections 4.12 and 4.14 that limit the right of the debtor
to dispose of the assets securing such Indebtedness; (b) customary
non-assignment provisions restricting subletting or assignment of any lease or
other agreement entered into by a Subsidiary; (c) customary net worth
provisions 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 agreement 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 agreements
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 restrictive taken as a whole than those provided for in such
Indebtedness being refinanced, refunded, extended or renewed and (g) Payment
Restrictions contained in any other Indebtedness permitted to be incurred
subsequent to the Issue Date pursuant to the provisions of Section 4.12;
provided that any such Payment Restrictions are ordinary and customary with
respect to the type of Indebtedness being incurred (under the relevant
circumstances) and, in any event, no more restrictive than the most restrictive
Payment Restrictions in effect on the Issue Date.
SECTION 4.14. Limitation on Liens.
The Company shall not and shall not permit any Subsidiary to
create, incur, assume or suffer to exist any Liens upon any of their respective
assets unless the Securities are equally and ratably secured by the Liens
covering such assets, except for (i) existing and future Liens securing
Indebtedness and other obligations of the Company and its Subsidiaries under
the Credit Agreement and related documents or any refinancing or replacement
thereof in whole or in part permitted under this Indenture, (ii) Permitted
Liens, (iii) Liens securing Acquired Indebtedness, provided that such Liens (x)
are not incurred in connection with, or in contemplation of, the acquisition of
the property or assets
61
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, (iv)
Liens to secure Capitalized 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 therewith) of
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, (v) Liens existing on the
Issue Date (after giving effect to the Merger), (vi) Liens in favor of the
Trustee under this Indenture and any substantially equivalent Lien granted to
any trustee or similar institution under any indenture for Indebtedness
permitted to be incurred under this Indenture, and (vii) any replacement,
extension or renewal, in whole or in part, of any Lien described in this or the
foregoing clauses including in connection with any refinancing of the
Indebtedness, in whole or in part, secured by any such Lien; provided that to
the extent any such clause limits the amount secured or the assets subject to
such Liens, no replacement, 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 4.15. Limitation on Change of Control.
(a) 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 the offer described in paragraph (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.
The Company shall purchase all Securities tendered into a Change of
Control Offer before it shall redeem or otherwise purchase any Subordinated
Indebtedness which the Company is required to redeem or purchase in connection
with a Change of Control.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date"), the
62
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 necessary to enable such Holders to tender Securities pursuant to the
Change of Control Offer. The Company shall give notice of an event giving rise
to a Change of Control on the same date and in the same manner to all Holders
of Securities. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Securities tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 40 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date"); provided,
however, that the Change of Control Payment Date for the Securities shall
be one Business Day prior to the Change of Control Payment Date with
respect to the Change of Control Payment Date under the Senior
Subordinated Note Indentures with respect to such Change of Control;
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased 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 setting 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;
63
(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 surrendered; 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 Control Offer is required to remain open
for at least 20 Business Days or such longer period as may be required by
law and until 12:00 Midnight New York City time on the applicable Change
of Control Payment Date; and
(9) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or 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 to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered
provided that each such new Security shall be in the principal amount of $1,000
or integral multiples thereof). 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 4.15, the Trustee shall act
as the Paying Agent.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict with the
provisions under this Section 4.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 by virtue thereof.
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SECTION 4.16. Limitation on Asset Sales.
Neither the Company nor any of its Subsidiaries shall consummate an
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 (A) a Related Business Investment, (B) an investment in properties and
assets that replace the properties and assets that are the subject of such
Asset Sale or (C) an investment in properties and assets that will be used in
the business of the Company and its Subsidiaries existing on the Issue Date or
in a business reasonably related thereto; (ii) in the case of a sale of a store
or stores, deem such Net Cash Proceeds to have been applied to the extent of
any capital expenditures made to acquire or construct a replacement store in
the general vicinity of the store sold within 365 days preceding the date of
the Asset Sale; (iii) apply or cause to be applied such Net Cash Proceeds to
the permanent repayment of Pari Passu Indebtedness; provided, however, that the
repayment of any revolving loan (under the Credit Agreement or otherwise) shall
result in a permanent reduction in the commitment thereunder; (iv) 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 (v) after
such time as the accumulated Net Cash Proceeds equal or exceed $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,
the proceeds of which are derived from the sale and substantially concurrent
lease- back of a supermarket and/or related assets or equipment which are
acquired or constructed by the Company or a Subsidiary subsequent to the date
that is six months prior to the Issue Date, provided that such sale and
substantially concurrent lease-back occurs within 270 days following such
acquisition or the completion of such construction, as the case may be.
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 or otherwise) without a
permanent reduction of the commitment thereunder.
65
Notice of a Net Proceeds Offer pursuant to this Section 4.16 will
be mailed to record Holders of Securities as shown on the register of Holders
not less than 325 days nor more than 365 days after the relevant Asset Sale,
with a copy to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.16 and that all Securities tendered will be accepted for payment,
provided, however, that if the aggregate principal amount of Securities
tendered in a Net Proceeds Offer plus accrued interest at the expiration
of such offer exceeds the aggregate amount of the Net Proceeds Offer, the
Company shall select the Securities to be purchased on a pro rata basis
(based on amounts tendered) (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 40 days from the date such notice is mailed, other than as may be
required by law) (the "Proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless the Company defaults in making payment therefor,
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 purchased 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 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 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 telegram, 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
66
statement that such Holder is withdrawing his election to have such
Security purchased;
(7) that Holders whose Securities were purchased only in part
will be issued new Securities equal in principal 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; and
(8) that the Net Proceeds Offer shall remain open for a period of
20 Business Days or such longer period as may be required by law.
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
provided that each such new Security shall be in the principal amount of $1,000
or integral multiples thereof). The Company will publicly announce the results
of the Net Proceeds Offer on or as soon as practicable after the Proceeds
Purchase Date. For purposes of this Section 4.16, the Trustee shall act as the
Paying Agent.
Any amounts remaining after the purchase of Securities 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 regulations are applicable in connection with the
purchase of Securities pursuant to a Net Proceeds Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.16, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.16 by virtue thereof.
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SECTION 4.17. Guarantees of Certain Indebtedness.
The Company will not permit any of its Subsidiaries to (a) incur,
guarantee or secure through the granting of Liens the payment of any
Indebtedness under the term portion of the Credit Agreement or refinancings
thereof or (b) pledge any intercompany notes representing obligations of any of
its Subsidiaries, 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 Trustee execute and deliver a supplemental
indenture evidencing such Subsidiary's Guarantee.
SECTION 4.18. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a wholly-owned Subsidiary) or
permit any person (other than the Company or a wholly-owned Subsidiary) to own
any Preferred Stock of any Subsidiary.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitations on Mergers and Certain Other
Transactions.
(a) The Company shall not in a single transaction or through a
series of related transactions, (i) consolidate with or merge with or into any
other person, or transfer (by lease, assignment, sale or otherwise) all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to another person or group of affiliated persons or (ii) adopt a
Plan of Liquidation, unless, in either case:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety or substantially as
an entirety are transferred (or, in the case of a Plan of Liquidation,
any person to which assets are transferred) (the Company or such other
person being hereinafter referred to as the "Surviving Person") shall be
a corporation organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture
68
supplement, all the obligations of the Company under the Securities 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 additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.12;
(3) immediately before and immediately after and giving effect to
such transaction and the assumption of the obligations as set forth in
clause (1) above and the incurrence or anticipated incurrence of any
Indebtedness to be incurred in connection therewith, no Default or Event
of Default shall have occurred and be continuing; and
(4) each Subsidiary Guarantor, unless it is the other party to
the transaction, shall have by supplemental indenture confirmed that its
Guarantee of the obligations of the Company under the Securities and this
Indenture shall apply, without alteration or amendment as such Guarantee
applies on the date it was granted under this Indenture to the
obligations of the Company under this Indenture 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 or series of
transactions) of all or substantially all of the properties and assets of one
or more direct or indirect Subsidiaries, the Capital Stock of which constitutes
all or substantially 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.
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SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any adoption of a Plan of
Liquidation by the Company in accordance with Section 5.01, the Surviving
Person formed by such consolidation or into which the Company is merged or to
which such transfer is made (or in the case of a Plan of Liquidation, to which
assets are transferred) 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 Surviving Person had been named as the Company herein;
provided, however, that solely for purposes of computing amounts described in
subclause (c) of the first paragraph of Section 4.03, any such Surviving 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 hereunder and under the Securities and agrees
to be bound hereby and thereby, the predecessor shall be released from such
obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. 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;
(ii) the Company defaults in the payment of the principal of, or
premium, if any, on the Securities when due whether at maturity, upon
acceleration, redemption, required repurchase or otherwise;
(iii) the Company fails to comply with any of its agreements
contained in the Securities or this Indenture (other than a default
specified in clause (i) or (ii) above), if such failure continues for the
period and after the notice specified below;
(iv) there shall be a default under any Indebtedness of the Company
or any of its Subsidiaries, whether such
70
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;
(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 custodian of the Company or any Significant Subsidiary, or for
all or any substantial part of their respective properties; 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
71
applicable law or applicable security documents to take ownership of any
such assets in lieu of foreclosure; or
(ix) any of the Guarantees shall be declared or adjudged invalid in
a final judgment or order issued by any court or governmental authority.
A Default under clause (iii) above (other than in the case of any
Default under Section 4.03, 4.15, 4.16 or 5.01, which Defaults shall be Events
of Default with the notice specified in this paragraph but without the passage
of time specified 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 Company 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 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.01(vi) or (vii) with respect to the Company or a
Subsidiary Guarantor) occurs and is continuing, 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 aggregate
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 written notice to the Company (and, if any
Indebtedness is outstanding under the Credit Agreement or the Credit Agreement
is otherwise in effect, to the Credit Agent) and the Trustee specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"Acceleration Notice"), and the same (i) shall become immediately due and
payable or (ii) if there are any amounts outstanding under the Credit
Agreement, shall become due and payable upon the first to occur of an
acceleration under the Credit Agreement, or five business days after receipt by
the Company and the Credit Agent of such Acceleration Notice. If an Event of
Default specified in Section 6.01(vi) or (vii) occurs with respect to the
Company or a Subsidiary Guarantor that is a Significant Subsidiary, all unpaid
principal of and accrued interest on all then outstanding Securities shall be
immediately due and payable without any declaration or other act on the part of
the Trustee
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or any of the Holders. Upon payment of such principal amount, interest, and
premium, if any, all of the Company's obligations under the Securities and this
Indenture, other than obligations under Section 7.07, shall terminate. After a
declaration of acceleration, the Holders of a majority in principal 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 principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction and (iv) the Company has paid or deposited with the Trustee a sum
sufficient to pay all sums paid or advanced by the Trustee under this Indenture
and the compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
(b) In the event of a declaration of acceleration under this
Indenture because an Event of Default set forth in Section 6.01(iv) has
occurred and is continuing, such declaration 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 underlying default
has been cured (and any acceleration based thereon of such other Indebtedness
has been rescinded), within 90 days of such maturity or declaration of
acceleration, as the case may be.
SECTION 6.03. 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
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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 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (i) and (ii) of Section 6.01. When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 6.05. 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 remedies
provided for in Section 6.03. Subject to Section 7.01, however, the Trustee
may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 6.06. 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 principal 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;
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(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 Securities 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 prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, 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 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of 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 Securities 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 Trustee, its agents
and counsel.
SECTION 6.09. 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
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entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder 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 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for interest;
Third: to Holders for principal amounts due and unpaid on the
Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal;
and
Fourth: to the Company or the Subsidiary Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. 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
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hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 6.12. 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 acquiescence therein. Every right and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.13 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE SEVEN
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 7.01. Duties of Trustee.
(a) If a Default or an Event of Default of which the Trustee is
aware 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
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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 undertake to perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture against 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
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee shall have no liability except 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 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
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(f) The Trustee shall not be liable for interest on any assets
received by it. Assets held in trust by the Trustee need not be segregated
from other assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require in addition to written direction
from the Company an Officers' Certificate or an Opinion of Counsel, which
shall conform to Sections 11.04 and 11.05. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney
or 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 resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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.
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SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity 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 statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. 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 or if such Default or Event of Default is known to the
Trustee during such 90-day period, promptly after such Default or Event of
Default becomes known to the Trustee; 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 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA { 313(a) occurred within the previous twelve
months, but not otherwise, mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA { 313(a). The Trustee also shall comply
with TIA {{ 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.
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The Company shall notify the Trustee if the Securities become
listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it except for such actions to the
extent caused by any negligence or bad faith on its part, arising out of or in
connection with the administration of this trust and its rights or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel 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 Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(vi) or (vii) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of
a majority in principal amount of the
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outstanding Securities may remove the Trustee and appoint a successor trustee
with the Company's consent, by so notifying the Company and the Trustee. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor 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 successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under
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Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. 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, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies 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 outstanding, if the requirements for such exclusion set forth in TIA {
310(b)(1) are met.
SECTION 7.11. 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 EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's
Obligations.________________
The Company may terminate its obligations under the Securities and
this Indenture, and the obligations of any Subsidiary Guarantor shall
terminate, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced or
paid or Securities for whose payment money has
83
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.04) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder, or if:
(1) either (i) pursuant to Article Three, the Company shall have
given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Securities under arrangements
satisfactory to the Trustee for the giving of such notice or (ii) all
Securities have otherwise become due and payable hereunder;
(2) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee,
under the terms of an irrevocable 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 reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Securities
to maturity or redemption; provided that the Trustee shall have been
irrevocably instructed to apply such money to the payment of said
principal, premium, if any, and interest with respect to the Securities;
(3) no Default or Event of Default with respect to this Indenture
or the Securities shall have occurred and be continuing on the date of
such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company is a party or by which
it is bound;
(4) the Company shall have paid all other sums payable 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 Guarantor'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
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instrument then known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02 and 7.07 and any Subsidiary
Guarantor's obligations in respect thereof shall survive until the Securities
are no longer outstanding pursuant to the last paragraph of Section 2.08.
After the Securities are no longer outstanding, the Company's obligations in
Sections 7.07, 8.04 and 8.05 and any Subsidiary Guarantor's obligations in
respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee 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 8.02. Legal Defeasance and Covenant
Defeasance.__________________
(a) The Company may, at its option by Board Resolution 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
outstanding 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 outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, "legal defeasance"). For this purpose, such
legal defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Securities,
which shall thereafter be deemed to be "outstanding" only for the purposes of
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) except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Securities to receive solely from the funds held by the
Trustee in the trust fund described in paragraph (d) below and as more fully
set forth in such paragraph, payments
85
in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's obligations with
respect to such Securities under Sections 2.06, 2.07 and 4.02, and, with
respect to the Trustee, under Section 7.07 and any Subsidiary Guarantor's
obligations in respect thereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 8.02 and Section
8.05. Subject to compliance with this Section 8.02, the Company may exercise
its option under this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article five and in
Sections 4.03, 4.05 through 4.09 and 4.11 through 4.18 with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"), and the Securities shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the outstanding Securities, the
Company and any Subsidiary Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01(iii), but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the
provisions of this Section 8.02 applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (x) money in an amount or (y) direct non-callable obligations
of, or non-
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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 Securities shall have occurred and be continuing on the
date of such deposit or, insofar as Section 6.01(vi) or (vii) is
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any Securities
of the Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other material agreement or instrument to
which the Company or any Subsidiary Guarantor is a party or by which it
is bound (and in that connection, the Trustee shall have received a
certificate from the Credit Agent to that effect with respect to such
Credit Agreement if then in effect);
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(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, after the 91st day
following the deposit, the trust funds will not be subject to the effect
of any applicable Bankruptcy Law;
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c) above,
as the case may be, have been complied with; and
(ix) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities over other creditors
of the Company or any Subsidiary Guarantor or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company,
any Subsidiary Guarantor or others.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this
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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), 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. The Company's obligations to pay and indemnify the
Trustee as set forth in this paragraph shall survive the termination of this
Indenture and the Securities.
Anything in this Section 8.02 to the contrary notwithstanding, 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 covenant defeasance.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 8.01 and 8.02, and shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of, premium, if any,
and interest on the Securities.
SECTION 8.04. Repayment to Company or Subsidiary
Guarantors._______________________
Subject to Sections 7.07, 8.01 and 8.02, the Trustee shall promptly
pay to the Company, or if deposited with the Trustee by any Subsidiary
Guarantor, to such Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 8.02, held
by it
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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 payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is required; provided,
however, that the Trustee and the Paying Agent before being required to make
any payment may, but need not, at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein, which shall be at least 30
days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company. After payment to the
Company or any Subsidiary Guarantor, as the case may be, Securityholders
entitled to money must look solely to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person, and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
SECTION 8.05. 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 application,
then and only then the Company's and each Subsidiary Guarantor's, if any,
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with this Indenture; provided, however,
that if the Company or the Subsidiary Guarantors, as the case may be, has made
any payment of principal of, premium, if any, or interest on any Securities
because of the reinstatement of its obligations, the Company or the Subsidiary
Guarantors, as the case may be, shall be, subrogated to the rights of the
holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. 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 without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to comply with Article Five and Section 10.05;
(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 in any material respect; or
(5) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and each Subsidiary 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 Securities 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; provided, further, that without the consent of
Holders of not less than 75% in aggregate principal amount of the Securities
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then outstanding, no such amendment, supplement or waiver may change the Change
of Control Payment Date or the purchase price in connection with any repurchase
of Securities pursuant to Section 5.15 in a manner adverse to any Holder or
waive a Default or Event of Default resulting from a failure to comply with
Section 4.15. Without the consent of each Securityholder affected, however, no
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
(1) change the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Guarantees;
(2) reduce the rate or extend the time for payment of interest on
any Security;
(3) reduce the principal amount of any Security;
(4) change the Maturity Date of any Security or alter the
redemption provisions in this Indenture or the Securities 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 principal of, interest on, or redemption
payment with respect to, any Security;
(6) make any changes in Section 6.04, 6.07 or this Section 9.02;
or
(7) make the principal of, or the interest on any Security
payable with anything or in any manner other than as provided for in this
Indenture, the Securities and the Guarantees as in effect on the date
hereof.
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 Holders 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.
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In connection with any amendment, supplement or waiver under this
Article Nine, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or
waiver.
SECTION 9.03. 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 9.04. 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 portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of his Security by notice to
the Trustee or the Company received before the date on which the Trustee
receives an Officers' Certificate 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 notwithstanding 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 (7) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's
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Security; 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 enforcement of any such payment on or after such respective dates without
the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the
"Guarantee") to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Securities or
the obligations of the Company hereunder or thereunder, that: (i) the
principal of and interest on the Securities will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal, if any, and
interest on any interest, to the extent lawful, of the Securities and all other
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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, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
10.04. Each Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of 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 Securities, this Indenture and in this Guarantee.
If any Securityholder or the Trustee is required by any court or otherwise to
return to the Company, any Subsidiary 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 accelerated as provided in
Article Six for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, 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 10.02. Severability.
In case any provision of this Guarantee shall be invalid, illegal
or unenforceable, the validity, legality, and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.03. Release of a Subsidiary Guarantor.
Upon (i) the release by the lenders under the Term Loans, related
documents and future refinancings thereof of all guarantees of a Subsidiary
Guarantor and all Liens on the property 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 Subsidiary Guarantor (or
all or substantially all its assets) to an entity which is not a Subsidiary of
the Company and which sale or disposition is otherwise in compliance with the
terms of this Indenture, such Subsidiary Guarantor shall be deemed released
from all obligations under this Article Ten without any further action required
on the part of the Trustee or any Holder; provided, however, that any such
termination shall occur only to the extent that all obligations of such
Subsidiary 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 Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section 10.03. Any
Subsidiary Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities as provided in this Article Ten.
SECTION 10.04. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor 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 effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under the Guarantee shall be limited
to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Guarantee or pursuant to Section
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11.06, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.05. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor or shall prevent any
sale or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary 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 Four and Article Five hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into a
corporation or corporations other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided,
however, that, subject to Sections 10.03 and 10.05(a), (i) such transaction
does not violate any covenants set forth in this Indenture and 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
Subsidiary Guarantee set forth in this Article Ten, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Subsidiary Guarantor, shall be expressly
assumed (in the event that the Subsidiary Guarantor is not the surviving
corporation in the merger), by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee, by the 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 indenture 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 performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor; provided, however,
that solely for purposes of computing amounts described in subclause (c) of the
first paragraph of Section 4.03, any such successor
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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 10.06. Contribution.
In order to provide for just and equitable contribution 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 discharging the Company's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to the
Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any date
shall mean the lesser of the amount by which (x) the fair value of the property
of such Subsidiary 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 Indebtedness which
constitutes Subordinated Indebtedness with respect to such Guarantee)), but
excluding liabilities under the Guarantee of such Subsidiary Guarantor, at such
date and (y) the present fair salable value of the assets of such Subsidiary
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Subsidiary Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on
such date (other than liabilities of such Subsidiary Guarantor under
Indebtedness which constitutes Subordinated Indebtedness with respect to such
Guarantee) and after giving effect to any collection from any Subsidiary of
such Subsidiary Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding debt in respect of the Guarantee of such
Subsidiary Guarantor, as they become absolute and matured.
SECTION 10.07. Waiver of Subrogation.
Each Subsidiary Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such
Subsidiary Guarantor's obligations under the Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
98
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
Company, 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 forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Subsidiary
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the waiver
set forth in this Section 10.07 is knowingly made in contemplation of such
benefits.
SECTION 10.08. Execution of Guarantee.
To evidence their guarantee to the Securityholders set forth in
this Article Ten, the Subsidiary Guarantors hereby agree to execute the
Guarantee in substantially the form included in Exhibit A, which shall be
endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each Subsidiary Guarantor hereby agrees that its Guarantee set forth
in this Article Ten shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Subsidiary Guarantor by two
Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate 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
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Subsidiary Guarantor. Such signatures upon the
Guarantee may be by manual or facsimile signature of such officers and may be
imprinted or otherwise 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
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who signed the Guarantee had not ceased to be such officer of the Subsidiary
Guarantor.
SECTION 10.09. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each
such Subsidiary 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 ELEVEN
MISCELLANEOUS
SECTION 11.01. 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 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered 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
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if to the Trustee:
Norwest Bank Minnesota, National Association
Sixth and Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Division
if to the Credit Agent:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
with a copy to:
Bankers Trust Company
300 S. Grand Avenue, 41st Floor
Los Angeles, CA 90071
Attention: Eric S. Swanson
Each of the Company, the Trustee, the Subsidiary Guarantors and the
Credit Agent by written notice to each other such person may designate
additional or different addresses for notices to such person. Any notice or
communication to the Company, the Trustee, the Subsidiary Guarantors and the
Credit Agent shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if
sent by registered or certified 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 registration 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 sufficiency 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 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA { 312(b) with other
Securityholders with respect to their
101
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 11.04. 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 opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the person making such certificate 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 covenant 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.
102
SECTION 11.06. 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 Registrar may make reasonable rules
for its functions.
SECTION 11.07. 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, California or at such place of payment are not
required to be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. 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 jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 11.09. 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 agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, 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 11.11. Successors.
All agreements of the Company and each Subsidiary Guarantor in this
Indenture and the Securities shall bind their
103
respective successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. 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 11.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 11.14. 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 Merger or any financing thereof 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 attested all as of the date first written above.
RALPHS GROCERY COMPANY
By:
Name: Jan Charles Gray
Title: Senior Vice President,
General Counsel and
Secretary
Attest: ___________________
SUBSIDIARY GUARANTORS:
ALPHA BETA COMPANY
BAY AREA WAREHOUSE STORES, INC.
BELL MARKETS, INC.
CALA CO.
CALA FOODS, INC.
CRAWFORD STORES, INC.
FALLEY'S, INC.
FOOD 4 LESS OF CALIFORNIA, INC.
FOOD 4 LESS GM, INC.
FOOD 4 LESS MERCHANDISING, INC.
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
By:
Name: Jan Charles Gray
Title: Senior Vice President,
General Counsel and
Secretary
(for each of the above-
listed Subsidiary Guarantors)
Attest: _____________________
(for each of the
above-listed
Subsidiary Guarantors)
105
NORWEST BANK MINNESOTA,
National Association,
as Trustee
By:
Name:
Title:
106
EXHIBIT A
[FORM OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)
OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (A)(1), (2), (3)
OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED
ON ITS BEHALF BY A U.S. BROKER- DEALER) TO THE TRUSTEE OR TRANSFER AGENT A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE OR
TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO \ THEM BY REGULATION S UNDER THE ACT.
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FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, AS
OF THE ISSUE DATE, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, (1) THE ISSUE PRICE IS
$946.25; (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $53.75; (3) THE ISSUE
DATE IS JUNE 6, 1996; (4) THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS
11 1/2%.
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RALPHS GROCERY COMPANY
10.45% Senior Note
due 2004
No. $
RALPHS GROCERY COMPANY, a Delaware corporation (the "Company",
which term includes any successor corporation), for value received promises to
pay to
or registered assigns, the principal sum of Dollars, on June 15, 2004.
Interest Payment Dates: June 15 and December 15 commencing on June
15, 1996.
Record Dates: June 1 and December 1 provided that with respect to
the interest payment on June 15, 1996, the Record Date shall be the Issue Date.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
RALPHS GROCERY COMPANY
By:
Name: Jan Charles Gray
Title: Executive Vice President
and Chief Financial Officer
By:
Name: Grey Mays
Title: Senior Vice President,
General Counsel and
Secretary
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110
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
National Association,
as Trustee
By
Authorized Signatory
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RALPHS GROCERY COMPANY
10.45% Senior Note
due 2004
1. Interest.
RALPHS GROCERY COMPANY, a Delaware corporation (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 each
June 15 and December 15 of each year (the "Interest Payment Date"), commencing
June 15, 1996 to the Holders of record on the immediately preceding June 1 and
December 1; provided that the interest payment on June 15, 1996 shall be paid
to the Holders of record on the Issue Date. 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 date of original issuance. 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 payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date
even if the Securities 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.
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112
3. Paying Agent and Registrar.
Initially, Norwest Bank Minnesota, National Association (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 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
June 1, 1995 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise 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 {{ 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 general unsecured obligations of the Company limited in
aggregate principal amount to $100,000,000. Payment on each Security is
guaranteed on a senior basis, jointly and severally, by the Subsidiary
Guarantors pursuant to Article Ten of the Indenture.
5. Optional Redemption.
On or after June 15, 2000 the Securities may be redeemed in whole
at any time or in part from time to time, at the option of the Company, at a
redemption price equal to the applicable percentage of the principal amount
thereof set forth below, together with accrued and unpaid interest to the
Redemption Date, if redeemed during the 12 months commencing on June 15 in the
years set forth below:
Year Percentage
2000 ...................... 105.225%
2001 ...................... 103.483%
2002 ...................... 101.742%
2003 and thereafter ....... 100.000%
A-7
113
In addition, on or prior to June 15, 1998, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the principal amount of the Securities
originally issued, at a redemption price equal to 110.450% of the principal
amount thereof if redeemed during the period commencing on the Issue Date and
ending on June 14, 1995, 108.957% of the principal amount thereof if redeemed
during the 12 months commencing on June 15, 1996 and 107.464% of the principal
amount thereof if redeemed during the 12 months commencing on June 15, 1997, in
each case plus accrued and unpaid interest, if any, to the redemption date.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 60 days after the consummation of such Public
Equity Offering. Securities in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Securities called for redemption will cease to bear
interest and the only right of the Holders of such Securities will be to
receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the repurchase of such Holder's Securities pursuant to a
Change of Control Offer at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of purchase.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply the
net proceeds from Asset Sales to the repayment of Pari Passu Indebtedness, to
make Related Business Investments, an investment in properties and assets that
replace the properties and assets that are the subject of such Asset Sale, an
investment in properties and assets that will be used in the
A-8
114
business of the Company and its Subsidiaries existing on the Issue Date or in a
business reasonably related thereto or to purchase in a Net Proceeds Offer (at
a price equal to 100% of the aggregate principal amount thereof, plus accrued
interest to the date of purchase) such aggregate principal amount of Securities
which, when added to the accrued interest thereon, shall be equal to the net
proceeds required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, 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 portions 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 redemption 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
(including the financial covenants, but excluding its obligation to pay the
principal of and interest on the Securities).
A-9
115
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 outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Securities to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated Securities in addition to
or in place of certificated Securities, comply with Article Five or Section
10.05 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 limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
15. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities 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 provided
in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Securities. Subject to certain limitations,
Holders of
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116
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) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, 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 Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company 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
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117
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 Indenture. Requests may be made to:
Ralphs Grocery Company, Inc., c/o The Yucaipa Companies, 10000 Santa Monica
Boulevard, Fifth Floor, Los Angeles, California 90067, Attn: Mark Resnik.
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[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture (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 person under the Indenture) have unconditionally
guaranteed on a senior unsecured 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 otherwise, 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 Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or 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 Guarantee and the Indenture are
expressly set forth and are senior unsecured obligations of each such
Subsidiary Guarantor, to the extent and in the manner provided, in Article Ten
of the 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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119
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 signature of one of its authorized officers.
SUBSIDIARY GUARANTORS:
CALA CO.
CALA FOODS, INC.
CRAWFORD STORES, 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: Greg Mays
(for each of the above-listed
Subsidiary Guarantors)
By:
Name: Jan Charles Gray
(for each of the above-listed
Subsidiary Guarantors)
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120
[FORM OF ASSIGNMENT]
To assign this Security fill in the form below:
I or we assign and transfer this Security to
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Please insert Social Security or other
identifying number of assignee
- ------------------------------------------
and irrevocably appoint _______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated:_______________ Signature:____________________________
- -------------------------------------------------------------------------------
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:__________________________________________
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) June 6, 1999, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Security is being transferred:
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[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that has furnished to the Trustee a
signed letter containing certain representations and
agreements (the form of which letter can be obtained
from the Trustee); or
(4) __ outside the United states to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) __ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act; or
(6) __ pursuant to an effective registration statement under
the Securities Act; or
(7) __ pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided that if box (3), (4), (5) or (7)
is checked, the Company or the Trustee may require, prior to registering any
such transfer of the Securities, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act.
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If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.15 of the Indenture shall have
been satisfied.
Dated: __________________ Signed: ____________________________
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: __________________ ____________________________
NOTICE: To be executed by
an executive officer
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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 4.15 or Section 4.16 of the Indenture, as the case may be,
check the appropriate box below: Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, as
the case may be, state the amount you want to be purchased:
$
Date:__________ Signature:____________________________
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee:______________________________________
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EXHIBIT B
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR
A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
Norwest Bank Minnesota,
National Association
Sixth and Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Division
Re: Ralphs Grocery Company (the
"Company") 10.45% Senior
Notes due 2004 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Notes, we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated June 3, 1996, relating to the Notes and
such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agreed to the
matters stated on pages (1)-(3) of the Offering Memorandum and in the
section entitled "Transfer Restrictions" of the Offering Memorandum,
including the restrictions on duplication and circulation of the Offering
Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of June 6, 1996 relating to the Notes (the "Indenture") and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
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126
3. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except as permitted in the following sentence.
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell or otherwise
transfer any Notes we will do so only (i) to the Company or any
subsidiary thereof, (ii) inside the United States in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the United
States to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you a signed letter containing certain
representatives and agreements relating to the restrictions on transfer
of the Notes, substantially in the form of this letter, (iv) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available), or (vi) pursuant to
an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing any of the Notes from
us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will
not transfer the Notes to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except
as permitted in the section entitled "Transfer Restrictions" of the
Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such certification,
legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our
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investment in the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or their investment, as
the case may be.
7. We are acquiring the Notes purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You, the Company and the Initial Purchaser (as defined in the
Offering Memorandum) are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
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EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
______Pursuant to Regulation S_____
______________, ____
Norwest Bank Minnesota,
National Association
Sixth and Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Division
Re: Ralphs Grocery Company (the
"Company") 10.45% Senior
Notes due 2004 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
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(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
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