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THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.
TO
JPMORGAN CHASE BANK (successor by merger to
Manufacturers Hanover Trust Company),
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 4, 2001
to
INDENTURE
Dated as of January 1, 1991
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Relating to
$200,000,000
7.70% Senior Notes due 2004
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FIRST SUPPLEMENTAL INDENTURE dated as of December 4, 2001
(this "First Supplemental Indenture"), between THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., a corporation duly organized and existing under the laws of the
State of Maryland (the "Company" or the "Issuer"), having its principal office
at 2 Paragon Drive, Montvale, New Jersey 07645, and JPMORGAN CHASE BANK
(successor by merger to Manufacturers Hanover Trust Company), a corporation duly
organized and existing under the laws of the State of New York, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture, dated as of January 1, 1991 (the "Indenture"),
providing for the issuance from time to time of Securities (as defined in the
Indenture), to be issued in one or more series as provided in the Indenture;
WHEREAS, the Company has heretofore issued under the Indenture
$200,000,000 aggregate principal amount of 7.70% Senior Notes due 2004 (the
"2004 Notes");
WHEREAS, the Company desires by this First Supplemental
Indenture, pursuant to Section 902 of the Indenture, to amend certain provisions
in the Indenture as they relate to the 2004 Notes and thereby to modify the
rights of the Holders (as defined in the Indenture) of the 2004 Notes under the
Indenture;
WHEREAS, the Company, pursuant to an Offer to Purchase and
Consent Solicitation Statement, dated November 19, 2001 (the "Statement" and,
together with the related Consent and Letter of Transmittal, the "Offer
Documents"), has offered to purchase any and all of the outstanding 2004 Notes
(the "Offer") and solicited the consents of the Holders of the 2004 Notes to the
amendments to the Indenture contained herein (the "Consent Solicitation"), upon
the terms and subject to the conditions set forth in the Offer Documents;
WHEREAS, the Holders of a majority in principal amount of the
Outstanding (as defined in the Indenture) 2004 Notes have delivered, pursuant to
the Consent Solicitation and in accordance with the requirements of Section 902
of the Indenture, written consents to the amendments to the Indenture contained
herein;
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WHEREAS, all conditions precedent provided for in the
Indenture with respect to the execution of this First Supplemental Indenture
have been complied with; and
WHEREAS, in accordance with Section 902 of the Indenture, it
is not necessary for the Act of the Holders of the 2004 Notes under Section 902
of the Indenture to approve the particular form of this First Supplemental
Indenture, and it is sufficient for such Act to approve to the Proposed
Amendments (as defined in the Offer Documents).
NOW, THEREFORE, in consideration of the foregoing premises,
the Company and the Trustee, for the equal and proportionate benefit of the
Holders of the 2004 Notes, mutually covenant and agree as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISION OF GENERAL APPLICATION
Section 1.01. Definitions. Terms used but not otherwise
defined herein shall have the respective meanings given them in the Indenture.
Section 1.02. Effect of First Supplemental Indenture. In
accordance with Section 904 of the Indenture, upon the execution of this First
Supplemental Indenture, the Indenture shall be modified in accordance herewith,
and this First Supplemental Indenture shall form a part of the Indenture for all
purposes; and every Holder of 2004 Notes heretofore or hereafter authenticated
and delivered under the Indenture shall be bound hereby. Except as modified by
this First Supplemental Indenture, the Indenture and the 2004 Notes, and the
rights of the Holders of the 2004 Notes thereunder, shall remain unchanged and
in full force and effect.
Section 1.03. Operation of Amendments. Notwithstanding
anything to the contrary in Section 1.02 hereof, the provisions of this First
Supplemental Indenture shall not become operative until the date and time the
Company notifies (orally or in writing) JPMorgan Chase Bank, as depositary for
the 2004 Notes under the Offer and the Consent Solicitation (the "Depositary"),
that the Company has accepted for purchase the 2004 Notes tendered and not
withdrawn pursuant to the Offer. In the event the Company notifies (orally or in
writing) the Depositary that it has withdrawn or terminated the Offer and the
Consent Solicitation, this First Supplemental Indenture shall be terminated and
of no force or effect and the Indenture shall not be modified hereby. The
Company shall promptly notify the Trustee in writing of any notice it gives to
the Depositary.
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Section 1.04. No Effect on Rights of Holders of Securities of
Any Other Series. In accordance with Section 902 of the Indenture, the
amendments to the provisions of the Indenture contained herein have expressly
been included solely with respect to the 2004 Notes, and modify the rights of
the Holders of the 2004 Notes with respect to such provisions, and shall be
deemed not to effect the rights under the Indenture of the Holders of Securities
of any other series. Notwithstanding anything herein to the contrary, the
Indenture will not be deemed to have been amended hereby for any purpose with
respect to any series of Securities other than the 2004 Notes.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.01. Amendments to Section 501 of the Indenture.
Section 501 of the Indenture shall be amended as follows:
(a) Paragraphs (4) and (5) of Section 501 of the Indenture
shall be amended and restated in their entirety to read as follows:
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities (excluding for
purposes of this calculation the Company's 7.70% Senior Notes
due 2004) a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
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(5) a default under any bond, debenture, note or
other evidence of indebtedness of the Company for money
borrowed (including a default with respect to Securities of
any series other than that series) or under any mortgage,
indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness of
the Company for money borrowed (including this Indenture),
whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an
aggregate principal amount exceeding $10,000,000 of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount
exceeding $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or
annulled, within a period of 30 days after there shall have
been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding
Securities (excluding for purposes of this calculation the
Company's 7.70% Senior Notes due 2004) a written notice
specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; provided, however, that if such
Event of Default under such bond, debenture, note, mortgage,
indenture or other instrument or evidence of indebtedness
shall be remedied or cured by the company or waived pursuant
to such agreement or instrument, then, unless the maturity of
the Securities shall have been accelerated as provided herein,
the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the
Trustee or the Holders. Subject to the provisions of Sections
601 and 602, the Trustee shall not be deemed to have knowledge
of such default unless either (A) a Responsible Officer of the
Trustee assigned to its Corporate Trust Department shall have
actual knowledge of such default or (B) such Responsible
Officer shall have received written notice thereof from the
Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
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(b) The following paragraph shall be added at the end of
Section 501 of the Indenture:
Notwithstanding the foregoing, none of the events
specified in Paragraphs (4), (5), (6), (7) or (8) of this Section 501
shall constitute an "Event of Default" with respect to the Company's
7.70% Senior Notes due 2004 and the Holders thereof shall have no
rights under this Article Five as a consequence of any such event.
Section 2.02. Amendments to Section 801 of the Indenture.
Section 801 of the Indenture shall be amended as follows:
(a) Paragraph (3) of Section 801 of the Indenture shall be
amended and restated in its entirety to read as follows:
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or
assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which
would not be permitted by this Indenture, the Company or such
successor corporation or Person, as the case may be, shall
take such steps as shall be necessary effectively to secure
the Securities (other than the Company's 7.70% Senior Notes
due 2004) equally and ratably with (or prior to) all
indebtedness secured thereby; and
(b) The following paragraph shall be added at the end of
Section 801 of the Indenture:
Notwithstanding any other provision in this
Indenture, the provisions of this Section 801 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 801.
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Section 2.03. Amendments to Section 1004 of the Indenture.
Section 1004 of the Indenture shall be amended and restated in its entirety to
read as follows:
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the
Holders (excluding from consideration the Holders of the Company's
7.70% Senior Notes due 2004).
Notwithstanding any other provision in this
Indenture, the provisions of this Section 1004 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1004.
Section 2.04. Amendments to Section 1005 of the Indenture.
Section 1005 of the Indenture shall be amended and restated in its entirety to
read as follows:
SECTION 1005. Maintenance of Properties.
The Company will use its reasonable efforts to cause
all material properties used or useful in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (subject to wear and tear)
and supplied with all necessary material equipment and will use its
reasonable efforts to cause to be made all necessary material repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business
carried on in connection therewith may be property and advantageously
conducted at all time; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the company, desirable in the conduct of its business or
the business of any Restricted Subsidiary and not disadvantageous in
any material respect to the Holders (excluding from consideration the
Holders of the Company's 7.70% Senior Notes due 2004).
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Notwithstanding any other provision in this
Indenture, the provisions of this Section 1005 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1005.
Section 2.05. Amendments to Section 1006 of the Indenture.
Section 1006 of the Indenture shall be amended by adding the following paragraph
at the end thereof:
Notwithstanding any other provision in this
Indenture, the provisions of this Section 1006 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1006.
Section 2.06. Amendments to Section 1007 of the Indenture.
Section 1007 of the Indenture shall be amended by adding the following paragraph
at the end thereof:
Notwithstanding any other provision in this
Indenture, the provisions of this Section 1007 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1007.
Section 2.07. Amendments to Section 1008 of the Indenture.
Section 1008 of the Indenture shall be amended as follows:
(a) The first paragraph of Section 1008 of the Indenture shall
be amended and restated in its entirety to read as follows:
The Company covenants and agrees that it will not,
and will not permit any Restricted Subsidiary to, create, issue, incur,
assume or guarantee any Secured Debt without making effective provision
(and the Company covenants that in such case it will make or cause to
be made effective provision) whereby the Securities then outstanding
and any other indebtedness of or guaranteed by the Company or such
Restricted Subsidiary (other than the Company's 7.70% Senior Notes due
2004) then entitled thereto shall be secured by such mortgage, pledge,
lien or encumbrance equally and ratably with (or prior to) any and all
other obligations and indebtedness thereby secured for so long as any
such other obligations and indebtedness shall be so secured; provided,
however, that the foregoing covenants shall not be applicable to the
following:
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(b) The following paragraph shall be added at the end of
Section 1008 of the Indenture:
Notwithstanding any other provision in this
Indenture, the provisions of this Section 1008 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1008.
Section 2.08. Amendments to Section 1009 of the Indenture.
Section 1009 of the Indenture shall be amended by adding the following paragraph
at the end thereof:
Notwithstanding any other provision in this
Indenture, the provisions of this Section 1009 will not apply to the
Company's 7.70% Senior Notes due 2004 and the Holders thereof shall not
be entitled to the benefits of this Section 1009.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.01. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision which is
required or deemed to be included in this First Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required or deemed provision
shall control.
Section 3.02. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
Section 3.03. Successors and Assigns. All covenants and
agreements in this First Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
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Section 3.04. Separability Clause. In case any provision in
this First Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 3.05. Benefits of this First Supplemental Indenture.
Nothing in this First Supplemental Indenture, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and the
Holders of the 2004 Notes, any benefit or any legal or equitable right, remedy
or claim under this First Supplemental Indenture.
Section 3.06. Governing Law. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 3.07. Counterparts. This instrument may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 3.08. Recitals. In accordance with Section 604 of the
Indenture, the recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture.
[Remainder of page intentionally left blank;
signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
By: /s/ Mitchell P. Goldstein
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Name: Mitchell P. Goldstein
Title: Senior Vice President
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Walter I. Johnson III
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Name: Walter I. Johnson III
Title: Assistant Treasurer