As filed with the Securities and Exchange Commission on January 20, 1998.
Registration No. 333-______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
Form S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
FRED MEYER, INC.
(Exact name of registrant as specified in its charter)
-------------------
<TABLE>
<S> <C>
Delaware 91-1826443
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3800 SE 22nd Avenue Roger A. Cooke
Portland, Oregon 97202 Senior Vice President,
(503) 232-8844 General Counsel and Secretary
(Address, including zip code, and telephone number, Fred Meyer, Inc.
including area code, of registrant's principal executive offices) 3800 SE 22nd Avenue
Portland, Oregon 97202
(503) 232-8844
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
</TABLE>
-----------------
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
<TABLE>
<S> <C> <C> <C> <C>
Gary R. Barnum Michael A. Becker George G. Golleher Marc W. Evanger
Stoel Rives LLP Cahill Gordon & Reindel Food 4 Less Holdings, Inc. Quality Food Centers, Inc.
900 SW Fifth Avenue, Suite 2300 Eighty Pine Street 1100 West Artesia Blvd. 10112 NE 10th St., Ste 201
Portland, OR 97204 New York, NY 10005-1702 Compton, CA 90220 Bellevue, WA 98004
(503) 294-9114 (phone) (212) 701-3000 (phone) (310) 884-9000 (phone) (425) 462-2179 (phone)
(503) 220-2480 (fax) (212) 269-5420 (fax) (310) 884-2505 (fax) (425) 462-2217 (fax)
</TABLE>
-----------------
Approximate date of commencement of proposed
sale to the public: As promptly as practicable after
this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]_________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
--------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
maximum
Title of each class of aggregate Amount of
securities to be registered offering price(2) registration fee
- --------------------------------------------------------------------------------
Debt Securities(1) $2,000,000,000 $590,000
================================================================================
(1) Includes guarantees (if any) of Debt Securities by Co-Registrants, who are,
or will be, direct and indirect subsidiaries of Registrant.
(2) Determined solely for the purpose of calculating the Registration Fee
pursuant to Rule 457 of the General Rules and Regulations under the
Securities Act of 1933 or if any Debt Securities are issued (i) with a
principal amount denominated in one or more foreign currencies or currency
units, such principal amount as shall result in an aggregate initial public
offering price equivalent to $2,000,000,000 at the time of the initial
offering or (ii) at an original issue discount, such greater principal
amount as shall result in proceeds to the Registrant of $2,000,000,000.
-------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such a date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
The following entities are, or may become upon the completion of the merger
of Q-Acquisition Corp. with Quality Food Centers, Inc., or the merger of FFL
Acquisition Corp. with Food 4 Less Holdings, Inc., as the case may be, direct or
indirect subsidiaries of Registrant, and may guarantee an issue of the Debt
Securities and are Co-Registrants under this Registration Statement.
Jurisdiction of
Incorporation I.R.S. Employer
Name of Co-Registrant or Organization Identification No.
- --------------------- --------------- ------------------
Fred Meyer Stores, Inc. Delaware 93-0798201
B&B Stores, Inc. Montana 93-0798200
B&B Pharmacy, Inc. Montana 93-0798200
CB&S Advertising Agency, Inc. Oregon 93-0587794
Distribution Trucking Company Oregon 93-0786441
FM, Inc. Utah 93-1197669
FM Holding Corporation Delaware 93-0864302
Grand Central, Inc. Utah 87-0277527
FM Retail Services, Inc. Washington 91-1628326
Fred Meyer, Inc., a Washington corporation Washington 93-0801576
Fred Meyer of Alaska, Inc. Alaska 93-0802793
Fred Meyer of California, Inc. California 93-0979434
Fred Meyer Jewelers, Inc. Delaware 93-1197671
Merksamer Jewelers, Inc. California 68-0202947
Roundup Co. Washington 93-0798202
JH Properties, Inc. Washington 91-1816127
Smith's Food & Drug Centers, Inc. Delaware 87-0258768
Compare, Inc. Delaware 86-0609950
Richie's, Inc. Texas 74-2047032
Saint Lawrence Holding Company Delaware 86-0504830
Smith's Beverage of Wyoming, Inc. Wyoming 80-0126833
Smitty's Supermarkets, Inc. Delaware 86-0765032
Smitty's Equipment Leasing, Inc. Delaware 86-0758585
Smitty's Super Valu, Inc. Delaware 13-3054103
Treasure Valley Land Company, L.C. Idaho 82-0474377
Western Property Investment
Group, Inc. California 87-0485081
Quality Food Centers, Inc.** Washington 91-1330075
Hughes Markets, Inc.** California 95-1947206
Hughes Realty, Inc.** California 95-2253719
KU Acquisition Corporation** Washington 91-1765648
Second Story, Inc.** Washington 91-1753356
Quality Food, Inc.** Delaware 91-1829342
Quality Food Holdings, Inc.** Delaware 91-1829339
QFC Sub, Inc.** Washington [pending]
Food 4 Less Holdings, Inc.** Delaware 33-0642810
Ralphs Grocery Company** Delaware 95-4356030
Alpha Beta Company** California 95-1456805
Bay Area Warehouse Stores, Inc.** California 93-1087199
Bell Markets, Inc.** California 94-1569281
Cala Co.** Delaware 95-4200005
Cala Foods, Inc.** California 94-1342664
Crawford Stores, Inc.** California 95-0657410
Falley's, Inc.** Kansas 48-0605992
Food 4 Less of California, Inc.** California 33-0293011
Food 4 Less of Southern California, Inc.** Delaware 33-0483203
Food 4 Less Merchandising, Inc.** California 33-0483193
Food 4 Less GM, Inc.** California 95-4390406
**Each such Co-Registrant to guarantee the Debt Securities if (a) such entity
becomes a direct or indirect subsidiary of the Company and (b) such entity
otherwise approves the guarantee of such issue of Debt Securities.
I-2
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 20, 1998.
Prospectus
$2,000,000,000
FRED MEYER, INC.
Debt Securities
Fred Meyer, Inc. (the "Company") may offer from time to time up to
$2,000,000,000 of its debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities"). The Debt Securities will be
unsecured and unsubordinated obligations of the Company and will rank equally
and ratably, on a pari passu basis, with other unsecured and unsubordinated
obligations of the Company. The Debt Securities may be offered as separate
series in amounts, at prices and on terms to be determined in light of market
conditions at the time of sale and set forth in a Prospectus Supplement or
Prospectus Supplements.
The terms of each series of Debt Securities, including, where applicable,
the specific designation, aggregate principal amount, authorized denominations,
maturity, rate or rates, and time or times of payment of any interest, any terms
for optional or mandatory redemption, required repurchases or payment of
additional amounts or any sinking fund provisions, additional or different
covenants or events of default, the initial public offering price, guarantees
thereof, the proceeds to the Company and any other specific terms in connection
with the offering and sale of such series (the "Offered Debt Securities") will
be set forth in a Prospectus Supplement or Prospectus Supplements. Any
guarantees of the Debt Securities by Quality Food Centers, Inc. ("QFC") and its
direct and indirect subsidiaries and by Food 4 Less Holdings, Inc. ("FFL") and
its direct and indirect subsidiaries are conditioned upon QFC, FFL, and their
respective subsidiaries, as the case may be, becoming direct or indirect
subsidiaries of the Company.
The Debt Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution." If any agents of the Company or any underwriters are involved
in the sale of any Debt Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a Prospectus
Supplement. See "Plan of Distribution" for possible indemnification arrangements
for underwriters, dealers and agents.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
--------------------
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ____________, 1998.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in the Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities offered
hereby, nor does it constitute an offer to sell or the solicitation of an offer
to buy such securities in any circumstances in which such offer or solicitation
is unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
or thereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof or that
the information contained herein or therein is correct as of any time subsequent
to its date.
-----------------------------
TABLE OF CONTENTS
Page
Prospectus
Available Information.........................................................2
Incorporation of Certain Documents by Reference ..............................3
The Company...................................................................4
Use of Proceeds...............................................................4
Ratio of Earnings to Fixed Charges ...........................................4
Description of Debt Securities................................................4
Plan of Distribution.........................................................12
Legal Matters ...............................................................12
Experts......................................................................13
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy and information statements and other information can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following regional
offices of the Commission: New York Regional Office, 7 World Trade Center, New
York, New York 10048; and Chicago Regional Office, 1400 Citicorp Center, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. In addition, the
aforementioned material can also be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. Such material
may also be accessed through an Internet Web site maintained by the Commission
at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is made to the Registration Statement, copies of which are available from the
Public Reference Section of the Commission at prescribed rates as described
above. Statements contained herein concerning the provisions of documents filed
with, or incorporated by reference in, the Registration Statement as exhibits
are necessarily summaries of such provisions and documents, and each such
statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company and certain Guarantors (as
defined below) with the Commission pursuant to the Exchange Act are incorporated
into this Prospectus by reference:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
February 1, 1997, as amended;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
May 24, 1997, August 16, 1997 and November 9, 1997, as amended;
(iii) the Company's Current Reports on Form 8-K, dated September 9, 1997
and November 6, 1997;
(iv) the Annual Report on Form 10-K for Quality Food Center, Inc. ("QFC")
for the fiscal year ended December 28, 1996, as amended;
(v) QFC's Quarterly Reports on Form 10-Q for the quarters ended March 22,
1997, June 14, 1997 and September 6, 1997, as amended;
(vi) QFC's Current Reports on Form 8-K, dated March 19, 1997 and November
6, 1997, as amended;
(vii) the Annual Report on Form 10-K for Food 4 Less Holdings, Inc. ("FFL")
for the fiscal year ended February 2, 1997, as amended;
(viii) FFL's Quarterly Reports on Form 10-Q for the quarters ended April
27, 1997, July 20, 1997 and October 12, 1997, as amended;
(ix) FFL's Current Reports on Form 8-K, dated November 6, 1997; and
(x) the definitive Joint Proxy and Consent Solicitation
Statement/Prospectus of the Company, QFC and FFL dated ______, 1998;
All documents filed by the Company, QFC and FFL pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company, QFC and FFL undertake to provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus has
been delivered, on written or oral request, a copy of any and all of the
documents incorporated in this Prospectus by reference, other than exhibits to
such documents not specifically incorporated by reference therein. Requests for
such copies from the Company should be directed to Fred Meyer, Inc., at its
principal executive offices located at 3800 SE 22nd Avenue, Portland, Oregon
97202, Attention: Roger A. Cooke, Senior Vice President, General Counsel and
Secretary (Telephone: (503) 232-8844). Requests for such copies from QFC should
be directed to Quality Food Center, Inc., at its principal executive offices
located at 10112 NE 10th Street, Suite 201 Bellevue, Washington 98004,
Attention: Susan Obuchowski, Secretary (Telephone: (425) 462-2177). Requests for
such copies from FFL should be directed to Food 4 Less Holdings, Inc., at its
principal executive offices located at 1100 West Artesia Boulevard, Compton,
California 90220, Attention: Terrence J. Wallock, Secretary (Telephone: (310)
884-9900).
3
<PAGE>
THE COMPANY
The Company is a holding company which, through its subsidiaries, operates
as a regional retailer of a wide range of food and drug products and general
merchandise including: apparel, photo and electronics, products for the home and
fine jewelry.
The Company was incorporated in Delaware in July 1997. The Company's
principal executive offices are located at 3800 SE 22nd Avenue, Portland, Oregon
97202 and its telephone number is (503) 232-8844.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement, the net proceeds to
the Company from the issuance and sale of the Debt Securities will be used for
general corporate purposes, including the repayment of indebtedness that may be
incurred from time to time, working capital, future acquisitions and further
investments in subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company for each of the five
fiscal years ending the Saturday closest to January 31 and for the forty week
period ending November 9, 1996 and November 8, 1997 were as follows:
<TABLE>
<CAPTION>
Fiscal Years Ending 40 Weeks 40 Weeks
Ending Ending
-------------------------------------------- ----------- -----------
November 9, November 8,
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ----- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 5.50 6.37 1.29 1.95 3.19 2.46 2.76
</TABLE>
For the purpose of computing such ratios, "earnings" represents the
aggregate of (a) income before income taxes and (b) fixed charges. "Fixed
charges" represents (a) consolidated interest charges, (b) the amortization of
debt discount and expense and premium on indebtedness and (c) the portion of
rental expense which the Company considers representative of an interest factor.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (as amended or
supplemented from time to time, the "Indenture") among the Company, the
Guarantors and The First National Bank of Chicago, as Trustee (the "Trustee"), a
copy of which is filed as an exhibit to the Registration Statement. The
statements herein relating to the Debt Securities and the following summaries of
certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms,
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Wherever particular sections or defined terms of the Indenture are referred to
in this Prospectus or in a Prospectus Supplement, such sections or defined terms
are incorporated herein or therein by reference. The definitions of certain
terms used in the following summary are set forth below under "--Certain
Definitions."
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. The particular terms of the Offered Debt Securities
and the extent, if any, to which such general terms and provisions may not apply
to the Offered Debt Securities will be described in the Prospectus Supplement
relating to such Offered Debt Securities (the "Applicable Prospectus
Supplement").
4
<PAGE>
General
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and Debt Securities may be issued thereunder from time to time
in one or more series. The Debt Securities will be unsecured and unsubordinated
obligations of the Company and will rank equally and ratably, on a pari passu
basis, with other unsecured and unsubordinated obligations of the Company. The
Debt Securities will be effectively subordinated to any secured indebtedness of
the Company to the extent of the assets securing such indebtedness.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Debt Securities will be
payable, and the transfer of Debt Securities will be registrable, at the office
or agency to be maintained by the Company in the borough of Manhattan in The
City of New York and at any other office or agency maintained by the Company for
such purpose. (Sections 301, 305 and 1002) Unless otherwise indicated in the
Applicable Prospectus Supplement, the Debt Securities will be issued only in
fully registered form without coupons and in denominations of $1,000 and any
integral multiples thereof. (Section 302) No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith. (Section 305)
The Applicable Prospectus Supplement will describe the terms of the Offered
Debt Securities, including: (1) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities; (3)
the person or entity to whom any interest on the Offered Debt Securities shall
be payable, if other than the person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest; (4) the date or dates on which the principal of
and premium, if any, on the Offered Debt Securities is payable or the method of
determination thereof; (5) the rate or rates at which the Offered Debt
Securities shall bear interest, if any, or the method of calculating such rate
or rates of interest, the date or dates from which any such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for interest payable on any Interest Payment Date; (6) the
place or places where the principal of, premium, if any, and interest on the
Offered Debt Securities shall be payable; (7) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency units) in which and the other terms and conditions upon which the
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem or purchase
the Offered Debt Securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof and the period or periods within which, the
price or prices at which and the other terms and conditions upon which the
Offered Debt Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation; (9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which the Offered Debt
Securities shall be issuable; (10) the currency, currencies or currency units in
which payment of the principal of and any premium and interest on any Offered
Debt Securities shall be payable if other than the currency of the United States
of America and the manner of determining the equivalent thereof in the currency
of the United States of America; (11) if the amount of payments of principal of
or any premium or interest on any Offered Debt Securities may be determined with
reference to an index, formula or other method, the index, formula or other
method by which such amounts shall be determined; (12) if the principal of or
any premium or interest on any Offered Debt Securities is to be payable, at the
election of the Company or a holder thereof, in one or more currencies or
currency units other than that or those in which the Debt Securities are stated
to be payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on the Offered Debt Securities as
to which such election is made shall be payable, and the periods within which
and the other terms and conditions upon which such election is to be made; (13)
if other than the principal amount thereof, the portion of the principal amount
of the Offered Debt Securities which shall be payable upon declaration of
acceleration of the maturity thereof or the method by which such portion may be
determined; (14) the applicability of the provisions described under
"--Defeasance of Offered Debt Securities or Certain Covenants in Certain
Circumstances"; (15) if the Offered Debt Securities will be issuable only in the
form of a Book Entry Security as described under "--Book Entry Debt Securities",
the Depositary or its nominee with respect to the Offered Debt Securities and
the circumstances under which the Book Entry Security may be registered for
transfer or exchange or authenticated and delivered in the name of a person or
entity other than the Depositary or its nominee; (16) any additional, modified
or different covenants applicable to one or more particular series of Debt
Securities; (17) any
5
<PAGE>
addition to or change in the Events of Default of the Offered Debt Securities
and any change in the right of the Trustee or the requisite Holders to declare
the principal amount due and payable; (18) any additional terms with respect to
the Guarantees including, without limitation, terms relating to release of the
Guarantees and the addition of additional Guarantors; and (19) other terms of
the Offered Debt Securities. (Section 301)
Each Applicable Prospectus Supplement will describe, as to the Debt
Securities to which it relates, any guarantees (the "Guarantees") by the direct
and indirect subsidiaries of the Company (the "Guarantors"), and any terms
regarding the release of such Guarantees. Guarantees of the Debt Securities by
QFC, FFL and their respective subsidiaries, are conditioned upon such entities,
as the case may be, becoming direct or indirect subsidiaries of the Company.
(Sections 1401 and 1403)
Debt Securities may be issued under the Indenture as Original Issue
Discount Debt Securities to be offered and sold at a substantial discount below
their stated principal amount. Special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
upon the occurrence and continuance of an Event of Default. (Section 101)
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units, if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, material U.S. federal income tax considerations and other information
with respect to such issue of Debt Securities and such foreign currency or
currency units will be set forth in the Applicable Prospectus Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Debt Securities, material
U.S. federal income tax, accounting and other considerations applicable thereto
will be described in the Applicable Prospectus Supplement.
Book Entry Debt Securities
The following description of Book Entry Securities will apply to any series
of Debt Securities except as otherwise provided in the Prospectus Supplement
relating thereto.
The Debt Securities of a series may be issued in the form of one or more
Book Entry Securities that will be deposited with or on behalf of a Depositary,
which will be a clearing agent registered under the Exchange Act. Book Entry
Securities will be registered in the name of the Depositary or a nominee of the
Depositary, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof and any such other matters as may be provided
for pursuant to the Indenture. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive certificated form, a Book Entry Security
may not be transferred or exchanged except as a whole to the Depositary, its
successors or their respective nominees. (Section 305)
Upon the issuance of any Book Entry Security, and the deposit of such Book
Entry Security with or on behalf of the Depositary for such Book Entry Security,
the Depositary will credit on its book-entry registration and transfer system
the respective principal amounts of the Debt Securities represented by such Book
Entry Security to the accounts of institutions ("participants") that have
accounts with the Depositary. The accounts to be credited will be designated by
the underwriters or agents engaging in the distribution of such Debt Securities
or by the Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in a Book Entry Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests in a Book Entry Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Book Entry Security or by its nominee. Ownership of
beneficial interests in such Book Entry Security by persons who hold through
participants will be shown on, and the transfer of such beneficial interests
within such participants will be effected only through, records maintained by
such participants. The laws of some jurisdictions require that certain
purchasers
6
<PAGE>
of securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in such a Book
Entry Security.
So long as the Depositary for a Book Entry Security, or its nominee, is the
owner of such Book Entry Security, such Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Debt Security
represented by such Book Entry Security for all purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Book Entry
Security must rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a holder under such
Indenture. The Company understands that under existing industry practices, if it
requests any action of holders or if an owner of a beneficial interest in a Book
Entry Security desires to give or take any instruction or action which a holder
is entitled to give or take under the Indenture, the Depositary would authorize
the participants holding the relevant beneficial interests to give or take such
instruction or action, and such participants would authorize beneficial owners
owning through such participants to give or take such instruction or action or
would otherwise act upon the instructions of beneficial owners holding through
them. The Holder of any Book Entry Security may grant proxies and otherwise
authorize any Person to take any action which a Holder is entitled to take under
the Indenture or the Securities.
Unless otherwise specified in the Applicable Prospectus Supplement,
payments with respect to principal, premium, if any, and interest, if any, on
the Debt Securities represented by a Book Entry Security registered in the name
of the Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Book Entry Security. The
Company expects that the Depositary for any Debt Securities represented by a
Book Entry Security, upon receipt of any payment of principal or interest in
respect of such Book Entry Security, will credit immediately participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the Book Entry Security as shown on the records of the Depositary.
The Company also expects that payments by participants to owners of beneficial
interests in such Book Entry Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities in bearer form held for the accounts of customers or registered
in "street name", and will be the responsibility of such participants. None of
the Company, the Trustee or any agent of the Company or the Trustee shall have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial interests in any Book Entry Security, or
for maintaining, supervising or reviewing any records relating to such
beneficial interests.
Unless otherwise specified in the Applicable Prospectus Supplement,
transfers of any Book Entry Security will be limited to transfers in whole, but
not in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in the Book Entry Security may be transferred or
exchanged for definitive Securities in accordance with the rules and procedures
of the Depositary. In addition, definitive Securities will be exchangeable for a
Book Entry Security if the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for the Book Entry Security and a successor
depositary is not appointed by the Company within 90 days of such notice or if
an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depositary to issue definitive Securities.
Certain Covenants of the Company
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Indenture does not limit the amount of Debt that may be incurred by the Company
or its Subsidiaries or contain covenants specifically designed to protect
holders of Debt Securities in the event of a highly leveraged transaction,
restructuring, change in control, merger or similar transaction involving the
Company that may adversely affect holders of Debt Securities.
Events of Default
Any one of the following events will constitute an "Event of Default" under
the Indenture with respect to Debt Securities of any series: (a) failure to pay
any interest on any Debt Security of that series when due, continued for 30
days; (b) failure to pay principal of or any premium on any Debt Security of
that series when due; (c) failure to deposit any sinking fund payment, when due,
in respect of any Debt Security of that series; (d) failure to perform, or
breach of, any covenant or other agreement of the Company or any Guarantor in
the Indenture with
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respect to Debt Securities of that series continued for 60 days after written
notice as provided in the Indenture; (e) a default under any indebtedness for
money borrowed by the Company or any Subsidiary if (A) such default either (1)
results from the failure to pay the principal or interest of any such
indebtedness at its stated maturity or (2) relates to an obligation other than
the obligation to pay the principal or interest of such indebtedness at its
stated maturity and results in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due and
payable, (B) the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness in default for failure to pay
principal or interest at stated maturity or the maturity of which has been so
accelerated, aggregates $30.0 million or more at any one time outstanding and
(C) such indebtedness is not discharged, or such acceleration is not rescinded
or annulled, within 10 business days after written notice as provided in the
Indenture; (f) one or more judgments, orders, or decrees of any court or
regulatory or administrative agency for the payment of money in excess of $30.0
million either individually or in the aggregate shall have been rendered against
the Company or any Significant Subsidiary (whether or not a Guarantor) or any of
their respective properties and shall not have been discharged and either (A)
any creditor shall have commenced an enforcement proceeding upon such judgment,
order, or decree or (B) there shall have been a period of 60 consecutive days
during which a stay of enforcement of such judgment, order or decree, by reason
of a pending appeal or otherwise, shall not be in effect; (g) certain events of
bankruptcy, insolvency or reorganization of the Company or any Significant
Subsidiary (whether or not a Guarantor); (h) any Guarantee of a Guarantor which
is a Significant Subsidiary ceases to be in full force and effect (other than in
accordance with the terms of such Guarantee and the Indenture) or is declared
null and void and unenforceable or found to be invalid or any Guarantor denies
its liability under its Guarantee (other than by reason of release of a
Guarantor from its Guarantee in accordance with the terms of the Indenture and
the Guarantee); or (i) any other Event of Default provided in the Applicable
Prospectus Supplement with respect to Debt Securities of that series. (Section
501)
If an Event of Default (other than an Event of Default described in clause
(g) of the preceding paragraph with respect to the Company) with respect to the
Debt Securities of any series at the time Outstanding shall occur and be
continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series may
accelerate the maturity of all Debt Securities of that series; provided,
however, that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. If an Event of Default described in clause (g) of the immediately
preceding paragraph occurs with respect to the Company, the Outstanding Debt
Securities will ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. (Section 502)
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Debt
Securities for the particular provisions relating to acceleration of the Stated
Maturity of a portion of the principal amount of such series of Original Issue
Discount Debt Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders of Debt Securities, unless such
holders shall have offered to the Trustee reasonable indemnity. (Section 603)
Subject to such provisions for the indemnification of the Trustee and to certain
other conditions, the holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series. (Section 512)
No holder of Debt Securities of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such holder shall have previously given to the Trustee written notice of
a continuing Event of Default and unless the holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of that series
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the holders of
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a majority in aggregate principal amount of the Outstanding Debt Securities of
that series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Section 507) However, such
limitations do not apply to a suit instituted by a holder of Debt Securities for
enforcement of payment of the principal of and premium, if any, or interest on
such Debt Securities on or after the respective due dates expressed in such Debt
Securities. (Section 508)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1004)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Company,
the Guarantors and the Trustee without the consent of the holders of any of the
Debt Securities in order (i) to evidence the succession of another entity to the
Company and the assumption of the covenants and obligations of the Company under
the Debt Securities and the Indenture by such successor to the Company; (ii) to
add to the covenants of the Company or any Guarantor for the benefit of the
holders of all or any series of Debt Securities or to surrender any right or
power conferred on the Company by the Indenture; (iii) to add additional Events
of Default with respect to any series of Debt Securities; (iv) to add to or
change any provisions to such extent as may be necessary to permit or facilitate
the issuance of Debt Securities in bearer form or to facilitate the issuance of
Book Entry Securities; (v) to add to, change or eliminate any provision
affecting only Debt Securities not yet issued; (vi) to secure the Debt
Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to evidence and provide for successor Trustees or to add or
change any provisions to such extent as may be necessary to provide for or
facilitate the appointment of a separate Trustee or Trustees for specific series
of Debt Securities; (ix) to permit payment in respect of Debt Securities in
bearer form in the United States to the extent allowed by law; (x) to cure any
ambiguity, to correct or supplement any mistaken or inconsistent provisions or
to make any other provisions with respect to matters or questions arising under
the Indenture, the Debt Securities of any series or any Guarantee provided that
any such action described in this clause (x) (other than in respect of a
mistaken provision) does not adversely affect in any material respect the rights
of any holder of Debt Securities of any series then outstanding; (xi) to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended; and (xii) to add or remove a Guarantor in accordance with the terms of
the Indenture. (Section 901)
Modifications and amendments of, and waivers with respect to, the Indenture
also may be made by the Company and the Trustee with the consent of the holders
of not less than a majority in aggregate principal amount of the Outstanding
Debt Securities of each series issued under the Indenture and affected by the
modification or amendments; provided, however, that no such modification or
amendment may, without the consent of the holders of all Debt Securities
affected thereby, (i) change the Maturity or Stated Maturity of the principal
amount of, or any installment of principal of or interest on, any Debt Security;
(ii) reduce the principal amount of, or the premium, if any, or interest on any
Debt Security (including in the case of an Original Issue Discount Debt Security
the amount payable upon acceleration of the maturity thereof ); (iii) change the
place or currency of payment of principal of, premium, if any, or interest on
any Debt Security; (iv) impair the right to institute suit for the enforcement
of any payment on any Debt Security on or after the Stated Maturity thereof (or
in the case of redemption or repurchase, on or after the Redemption Date or
repurchase date, as applicable); or (v) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the consent of whose
holders is required for modification or amendment of the Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults; (vi) modify any of the provisions of the Indenture relating to the
time at which any Security may be redeemed or requiring the repurchase of such
Security by the Company; (vii) modify any of the provisions of the Indenture
relating to the modification and amendment provisions of the Indenture or the
waiver of past defaults, except to increase any percentage set forth in such
provisions or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the Holder of each outstanding
Security affected thereby; (viii) modify the ranking or priority of the Debt
Securities or any Guarantee thereof; and (ix) release any Guarantor from any of
its obligations under its Guarantee or the Indenture otherwise than in
accordance with the Indenture. (Section 902)
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The holders of at least a majority in aggregate principal amount of the
outstanding Debt Securities of any series may, on behalf of all holders of Debt
Securities of that series, waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 902) The holders of not less
than a majority in aggregate principal amount of the outstanding Debt Securities
of any series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the Indenture, except a default in the payment of
principal, premium or interest or in respect of a covenant or provision of the
Indenture that cannot be modified or amended without the consent of the holder
of each outstanding Debt Security of such series affected thereby. (Section 513)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge with or into any other entity
or transfer or lease, in one transaction or a series of related transactions,
all or substantially all of its properties and assets to any entity, unless (i)
either the Company is the continuing corporation, or any successor or purchaser
is a corporation organized under the laws of the United States of America, any
State thereof or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations under the Debt Securities and the
Indenture pursuant to a supplemental indenture, (ii) immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing, (iii) if a supplemental indenture is to be executed in
connection with such consolidation, merger, transfer or lease, the Company and
the Guarantors have delivered to the Trustee an officers' certificate and an
opinion of counsel stating compliance with these provisions; and (iv) such other
conditions, if any, are satisfied as provided in the Applicable Prospectus
Supplement with respect to Offered Debt Securities. (Section 801)
Defeasance of Offered Debt Securities or Certain Covenants in Certain
Circumstances
Defeasance and Discharge
The Indenture provides that the terms of any series of Debt Securities may
provide that the Company and the Guarantors, at the Company's option, will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, to maintain paying agencies and to hold monies for
payment in trust) upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations (as defined in the Indenture)which, through the
payment of interest and principal thereof in accordance with their terms, will
provide money in an amount sufficient to pay any installment of principal (and
premium, if any) and interest on, and any mandatory sinking fund payments in
respect of, the Debt Securities of such series on the Stated Maturity of such
payments in accordance with the terms of the Indenture and such Debt Securities.
Such discharge may only occur if, among other things, the Company has delivered
to the Trustee an opinion of counsel to the effect that the Company has received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or there has been a change in tax law, in either case to the effect
that such discharge will not be deemed, or result in, a taxable event with
respect to holders of the Debt Securities of such series. (Sections 1302 and
1304)
Defeasance of Certain Covenants
The Indenture provides that the terms of any series of Debt Securities may
provide the Company with the option for it and the Guarantors to be released
from certain restrictive covenants described in this Prospectus under
"--Consolidation, Merger and Sale of Assets" and any other covenants made
applicable to any series of Debt Securities as described in the Applicable
Prospectus Supplement and the Event of Default described in (d) under "--Events
of Default" as it relates to such covenant and any other Events of Default made
applicable to any series of Debt Securities that are determined to be applicable
to this provision as described in the Applicable Prospectus Supplement. The
Company, in order to exercise such option, will be required to deposit with the
Trustee money and/or U.S. Government Obligations which, through the payment of
interest and principal thereof in accordance with their terms, will provide
money in an amount sufficient to pay principal (and premium, if any) and
interest on, and any mandatory sinking fund payments in respect of, the Debt
Securities of such series on the Stated Maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. The Company will also
be required to deliver to the Trustee an opinion of counsel to the effect that
the deposit and related
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covenant defeasance will not cause the holders of the Debt Securities of such
series to recognize income, gain or loss for federal income tax purposes.
(Sections 1303 and 1304)
In the event the Company exercises this option and the Debt Securities of
such series are declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations on deposit with
the Trustee will be sufficient to pay amounts due on the Debt Securities of such
series at the time of their Stated Maturity but may not be sufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company shall
remain liable for such payments.
The Applicable Prospectus Supplement will state if any defeasance
provisions will apply to the Offered Debt Securities.
Concerning the Trustee
The First National Bank of Chicago is the Trustee under the Indenture. The
Trustee may resign at any time or may be removed by the holders of at least a
majority in aggregate principal amount of the Outstanding Debt Securities. If
the Trustee resigns, is removed or becomes incapable of acting as Trustee or if
a vacancy occurs in the office of the Trustee for any cause, a successor Trustee
shall be appointed in accordance with the provisions of the Indenture.
Certain Definitions
For all purposes of this Prospectus, except as otherwise expressly provided
or unless the context otherwise requires, the terms are defined as follows:
"Book Entry Security" means a Debt Security in the form prescribed by the
Indenture or any supplement to the Indenture, evidencing all or part of the
securities of any series, issued to the Depositary for such series or its
nominee, and registered in the name of such Depositary or such nominee.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Book Entry
Securities, the Person designated as Depositary for such series by the Company,
pursuant to the Indenture, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person 'Depositary' as used with respect to the Debt Securities of any
series shall mean the Depositary with respect to the Debt Securities of such
series.
"Interest Payment Date", when used with respect to any Debt Security, means
the Stated Maturity of an installment of interest on such security.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered pursuant to the Indenture in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Debt Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Debt Security.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Debt Securities of any series means the date specified for that purpose
as contemplated by the Indenture.
"Stated Maturity", when used with respect to any Debt Security or any
installment of principal thereof or interest thereon, means the date specified
in such Debt Security as the fixed date on which the principal of such Debt
Security or such installment of principal or interest is due and payable.
"Subsidiary" means, in respect of any person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of capital stock or other interests
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(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, manager or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
person, (ii) such person and one or more Subsidiaries of such person or (iii)
one or more Subsidiaries of such person.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to one or more underwriters for
public offering and sale by them or may sell the Offered Debt Securities to
investors directly or through agents, which agents may be affiliated with the
Company. Any such underwriter or agent involved in the offer and sale of the
Offered Debt Securities will be named in the Applicable Prospectus Supplement.
Sales of Offered Debt Securities offered pursuant to any Applicable
Prospectus Supplement may be effected from time to time in one or more
transactions at a fixed price or prices which may be changed, at prices related
to the prevailing market prices at the time of sale or at negotiated prices. The
Company also may, from time to time, authorize underwriters acting as the
Company's agents to offer and sell the Offered Debt Securities upon the terms
and conditions set forth in the Applicable Prospectus Supplement. In connection
with the sale of Offered Debt Securities, underwriters may be deemed to have
received compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of Offered Debt
Securities for whom they may act as agent. Underwriters may sell Offered Debt
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from purchasers of Offered Debt Securities for whom they may act as
agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Debt Securities may
be deemed to be underwriters, and any discounts, concessions or commissions
received by them and any profit realized by them on resale of the Offered Debt
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers and agents may be entitled, under
agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act. Any such indemnification arrangements will be described in the
Applicable Prospectus Supplement.
Unless otherwise specified in the Applicable Prospectus Supplement, each
series of Offered Debt Securities will be a new issue with no established
trading market. The Company may elect to list any series of Offered Debt
Securities on any exchange, but is not obligated to do so. It is possible that
one or more underwriters may make a market in a series of Offered Debt
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for the Offered Debt Securities.
Certain of the underwriters, agents and their affiliates may be customers
of, engage in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the Offered Debt Securities will
be passed upon for the Company by Stoel Rives LLP, Portland, Oregon, and for any
underwriters, dealers or agents by Cahill Gordon & Reindel (a partnership
including a professional corporation), New York, New York. Cahill Gordon &
Reindel may rely on the opinion of Stoel Rives LLP as to matters of Oregon law.
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EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from the Annual Report on Form 10-K of Fred Meyer, Inc. for the year
ended February 1, 1997 have been audited by Deloitte & Touche LLP (Portland
office), independent auditors, as stated in their report, which is incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report of said firm given upon its
authority as experts in accounting and auditing.
The financial statements of Quality Food Centers, Inc. ("QFC"), as of
December 30, 1995 and December 28, 1996 and for each of the three years in the
period ended December 28, 1996 included in the QFC Form 10-K/A for the year
ended December 28, 1996, dated July 23, 1997, have been audited by Deloitte &
Touche LLP (Seattle office), independent auditors, as stated in their report
included therein and incorporated herein by reference. Such financial statements
are incorporated herein by reference in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
The consolidated balance sheets of Food 4 Less Holdings, Inc., as of
February 2, 1997, January 28, 1996 and January 29, 1995 and the related
consolidated statements of operations, cash flows and stockholders' equity for
the 53 weeks ended February 2, 1997, the 52 weeks ended January 28, 1996, and
the 31 weeks ended January 29, 1995 and the 52 weeks ended June 25, 1994 and the
related financial schedules incorporated by reference in this Prospectus, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated herein by
reference in reliance upon the authority of said firm as experts in giving said
reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by registrant in connection with
the sale of the Debt Securities being registered. All amounts are estimates
except the registration fee.
Registration fee (a)...................................$ 590,000
Legal fees and expenses (b)............................ 200,000
Rating Agencies - Shelf Registration and Takedown...... 100,000
Accounting fees and expenses........................... 50,000
Trustee................................................ 8,000
Printing and engraving ................................ 250,000
Miscellaneous.......................................... 100,000
----------
Total...........................................$1,298,000
- ----------------
(a) SEC registration fee is calculated by multiplying the aggregate offering
amount by .000295.
(b) Issuer's Counsel only.
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware GCL") grants each corporation the power to indemnify officers and
directors under certain circumstances. Article V of the Company's Amended and
Restated Bylaws (the "Bylaws") provides for indemnification to the fullest
extent permitted by Section 145.
As authorized by Section 102 of the Delaware GCL, the Company has included
in its Certificate of Incorporation a provision eliminating the liability of a
director to the Company or its stockholders for monetary damages for breaches of
a director's fiduciary duty to the Company. Liability may not be and has not
been limited for breaches of the duty of loyalty, intentional misconduct,
distributions made in contravention of Section 174 of the Delaware GCL or for
any transaction in which a director derives an improper personal benefit.
The Company has a directors and officers liability insurance policy, under
certain circumstances, insures its directors and officers against the costs of
defense, settlement or payment of a judgment.
The rights of indemnification described above are not exclusive of any
other rights of indemnification to which the persons indemnified may be entitled
under any agreement, vote of stockholders or directors or otherwise.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
Item 16. Exhibits
*1.1 Form of Underwriting Agreement
2.1 FM/QFC Merger Agreement (incorporated by reference to Exhibit 99.1 to
the Company's Report on Form 8-K, filed November 6, 1997)
2.2 FM/FFL Merger Agreement (incorporated by reference to Exhibit 99.2 to
the Company's Report on Form 8-K, filed November 6, 1997)
4 Form of Indenture
**5 Opinion by Stoel Rives LLP Regarding Legality of Debt Securities
12 Statement Regarding Computation of Ratios
II-1
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23.1 Consent of Deloitte & Touche LLP (Portland)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP (Seattle)
23.4 Consent of Stoel Rives LLP (See Exhibit 5)
24 Power of Attorney (See also signature page of this Registration
Statement)
25 Statement of Eligibility of Trustee
* To be filed in Company's Form 8-K Report.
** To be filed by Amendment.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(c) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(d) The undersigned Registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the high or low end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
II-2
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for purposes of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(f) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Act.
II-3
<PAGE>
SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Fred Meyer, Inc., and the Co-Registrants named below, certify that they have
reasonable grounds to believe that they meet all of the requirements for filing
on Form S-3 and have duly caused this registration statement to be signed on
their behalf by the undersigned, thereunto duly authorized, in the City of
Portland, State of Oregon, on January 20, 1998.
FRED MEYER, INC.
By: DAVID R. JESSICK
-------------------------------------
David R. Jessick
Senior Vice President and
Assistant Secretary
CO-REGISTRANTS
Fred Meyer Stores, Inc.
Smith's Food & Drug Centers, Inc.
By: KENNETH THRASHER
-------------------------------------
Kenneth Thrasher
Executive Vice President
B&B Stores, Inc.
B&B Pharmacy, Inc.
CB&S Advertising Agency, Inc.
Distribution Trucking Company
FM, Inc.
FM Holding Corporation
Grand Central, Inc.
FM Retail Services, Inc.
Fred Meyer, Inc., a Washington
corporation
Fred Meyer of Alaska, Inc.
Fred Meyer of California, Inc.
Fred Meyer Jewelers, Inc.
Merksamer Jewelers, Inc.
Roundup Co.
JH Properties, Inc.
Compare, Inc.
Saint Lawrence Holding Company
Smith's Beverage of Wyoming, Inc.
Smitty's Supermarkets, Inc.
Smitty's Equipment Leasing, Inc.
Smitty's Super Valu, Inc.
Western Property Investment
Group, Inc.
By: KENNETH THRASHER
--------------------------------------
Kenneth Thrasher
Vice President
II-4
<PAGE>
Treasure Valley Land Company, L.C.
By: Smith's Food and Drug Centers,
Inc. its member
By: KENNETH THRASHER
-------------------------------------
Kenneth Thrasher
Executive Vice President
Richie's, Inc.
By: ROGER A. COOKE
-------------------------------------
Roger A. Cooke
Vice President
Quality Food Centers, Inc.
Hughes Markets, Inc.
Hughes Realty, Inc.
KU Acquisition Corporation
Second Story, Inc.
Quality Food, Inc.
Quality Food Holdings, Inc.
QFC Sub, Inc.
By: MARC W. EVANGER
-------------------------------------
Marc W. Evanger
Senior Vice President, Finance &
Administration
Food 4 Less Holdings, Inc.
Ralphs Grocery Company
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 of Southern California, Inc.
Food 4 Less Merchandising, Inc.
Food 4 Less GM, Inc.
By: JOHN STANDLEY
-------------------------------------
John Standley
Senior Vice President and Chief
Financial Officer
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the following
capacities effective on January 20, 1998.
REGISTRANT OFFICERS AND DIRECTORS
Signature Title
ROBERT G. MILLER
- ----------------------------------- Director, President and
Robert G. Miller Chief Executive Officer
(Principal Executive Officer)
KENNETH THRASHER
- ----------------------------------- Executive Vice President
Kenneth Thrasher (Principal Administrative Officer)
DAVID R. JESSICK
- ----------------------------------- Senior Vice President and
David R. Jessick Assistant Secretary
(Principal Financial Officer)
RONALD W. BURKLE Chairman
- -----------------------------------
Ronald W. Burkle
VIVIAN A. BULL Director
- -----------------------------------
Vivian A. Bull
JAMES J. CURRAN Director
- -----------------------------------
James J. Curran
A.M. GLEASON Director
- -----------------------------------
A.M. Gleason
BRUCE KARATZ Director
- -----------------------------------
Bruce Karatz
JOHN G. KING Director
- -----------------------------------
John G. King
ROGER S. MEIER Director
- -----------------------------------
Roger S. Meier
STEVEN R. ROGEL Director
- -----------------------------------
Steven R. Rogel
II-6
<PAGE>
FRED L. SMITH Director
- -----------------------------------
Fred L. Smith
JEFF P. SMITH Director
- -----------------------------------
Jeff P. Smith
II-7
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of Debt Securities of Fred Meyer, Inc., and any and all
amendments (including post-effective amendments) thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission; granting unto said attorneys and agents, and
each of them, full power and authority to do any and all acts and things
necessary or advisable to be done, as fully and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys and agents or any of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the following
capacities effective on January 20, 1998.
CO-REGISTRANT OFFICERS AND DIRECTORS
Signature Title Date
Fred Meyer Stores, Inc.
ROBERT G. MILLER
- ------------------------------ Director, President and January 19, 1998
Robert G. Miller Chief Executive Officer
(Principal Executive Officer)
DAVID R. JESSICK
- ------------------------------ Senior Vice President January 19, 1998
David R. Jessick Assistant Secretary
(Principal Financial Officer)
JAMES C. AALBERG
- ------------------------------ Vice President and January 19, 1998
James C. Aalberg Treasurer
(Principal Accounting Officer)
KENNETH THRASHER
- ------------------------------ Director and Executive January 19, 1998
Kenneth Thrasher Vice President
ROGER A. COOKE
- ------------------------------ Director, Senior Vice January 19, 1998
Roger A. Cooke President and Secretary
II-8
<PAGE>
B&B Stores, Inc.
B&B Pharmacy, Inc.
CB&S Advertising Agency, Inc.
Distribution Trucking Company
FM, Inc.
FM Holding Corporation
Grand Central, Inc.
FM Retail Services, Inc.
Fred Meyer, Inc., a Washington
corporation
Fred Meyer of Alaska, Inc.
Roundup Co.
ROBERT G. MILLER
- ------------------------------ Director and President January 19, 1998
Robert G. Miller (Principal Executive Officer)
JAMES C. AALBERG
- ------------------------------ Vice President and January 19, 1998
James C. Aalberg Treasurer
(Principal Financial and
Accounting Officer)
KENNETH THRASHER
- ------------------------------ Director, Vice January 19, 1998
Kenneth Thrasher President and Assistant
Secretary
ROGER A. COOKE Director, Vice January 19, 1998
- ------------------------------ President and Secretary
Roger A. Cooke
Fred Meyer of California, Inc.
ROBERT G. MILLER
- ------------------------------ Director and President January 19, 1998
Robert G. Miller (Principal Executive Officer)
DAVID R. JESSICK
- ------------------------------ Vice President January 19, 1998
David R. Jessick (Principal Financial Officer)
JAMES C. AALBERG
- ------------------------------ Vice President and January 19, 1998
James C. Aalberg Treasurer
(Principal Accounting Officer)
KENNETH THRASHER
- ------------------------------ Director, Vice President January 19, 1998
Kenneth Thrasher and Assistant Secretary
ROGER A. COOKE
- ------------------------------ Director, Vice President January 19, 1998
Roger A. Cooke and Secretary
II-9
<PAGE>
Fred Meyer Jewelers, Inc.
Merksamer Jewelers, Inc.
MICHAEL H. DON
- ------------------------------ Director and Chief January 19, 1998
Michael H. Don Executive Officer
(Principal Executive Officer)
DAVID R. JESSICK
- ------------------------------ Vice President and January 19, 1998
David R. Jessick Chief Financial Officer
(Principal Financial Officer)
JAMES C. AALBERG
- ------------------------------ Vice President and January 19, 1998
James C. Aalberg Treasurer
(Principal Accounting Officer)
EDWARD A. DAYOOB Director and President January 19, 1998
- -----------------------------
Edward A. Dayoob
KENNETH THRASHER
- ------------------------------ Director, Vice President January 19, 1998
Kenneth Thrasher and Assistant Secretary
JH Properties, Inc.
ROBERT G. MILLER
- ------------------------------ Director and President January 19, 1998
Robert G. Miller (Principal Executive Officer)
KENNETH THRASHER Director and Vice January 19, 1998
- ------------------------------ President
Kenneth Thrasher
ROGER A. COOKE
- ------------------------------ Director, Vice President January 19, 1998
Roger A. Cooke and Secretary
II-10
<PAGE>
Smith's Food & Drug Centers, Inc.
ROBERT G. MILLER
- ------------------------------ Director, Chief Executive January 19, 1998
Robert G. Miller Officer and President
(Prinicipal Executive Officer)
DAVID R. JESSICK Senior Vice President January 19, 1998
- ------------------------------ (Principal Financial Officer)
David R. Jessick
ROBERT B. DIMOND Vice President and January 19, 1998
- ------------------------------ Treasurer
Robert B. Dimond (Principal Accounting Officer)
KENNETH THRASHER Director and Executive January 19, 1998
- ------------------------------ Vice President
Kenneth Thrasher
ROGER A. COOKE Director, Senior Vice January 19, 1998
- ------------------------------ President and Secretary
Roger A. Cooke
Compare, Inc.
Saint Lawrence Holding Company
Smith's Beverage of Wyoming, Inc.
Smitty's Supermarkets, Inc.
Smitty's Equipment Leasing, Inc.
Smitty's Super Valu, Inc.
Western Property Investment
Group, Inc.
ROBERT G. MILLER Director and President January 19, 1998
- ------------------------------ (Principal Executive Officer)
Robert G. Miller
ROBERT B. DIMOND Vice President and January 19, 1998
- ------------------------------ Treasurer (Principal Financial
Robert B. Dimond and Accounting Officer)
KENNETH THRASHER Director and Vice President January 19, 1998
- ------------------------------
Kenneth Thrasher
ROGER A. COOKE Director, Vice President January 19, 1998
- ------------------------------ and Secretary
Roger A. Cooke
Richie's, Inc.
ROGER A. COOKE Director, Vice President January 19, 1998
- ------------------------------ and Secretary
Roger A. Cooke
DALE SCHIER Director and President January 19, 1998
- ------------------------------ (Principal Executive Officer)
Dale Schier
KEITH C. LARSON Director and Vice President January 19, 1998
- ------------------------------ (Principal Financial and
Keith C. Larson Accounting Officer)
II-11
<PAGE>
Treasure Valley Land Company, L.C.
ROBERT G. MILLER Director, Smith's Food January 14, 1998
- ------------------------------ & Drug Centers, Inc.
Robert G. Miller
KENNETH THRASHER Director, Smith's Food January 14, 1998
- ------------------------------ & Drug Centers,Inc.
Kenneth Thrasher
ROGER A. COOKE Director, Smith's Food January 14, 1998
- ------------------------------ & Drug Centers, Inc.
Roger A. Cooke
II-12
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that prior to the completion of the merger
of certain of the Company's subsidiaries with and into Quality Food Centers,
Inc. and Food 4 Less Holdings, Inc., the undersigned constitutes and appoints
George G. Golleher, John Standley, Christopher S. Hall, Greg Mays and each of
them, his true and lawful attorneys and agents, with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Form S-3 Registration Statements under the
Securities Act of 1933, prepared in connection with the issuance and/or sale of
Debt Securities of Fred Meyer, Inc., and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission; granting unto said attorneys and agents, and each of them,
full power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys and
agents or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Upon completion of the merger of certain of the Company's subsidiaries with
and into Quality Food Centers, Inc. and Food 4 Less Holdings, Inc., the
undersigned constitutes and appoints Robert G. Miller, Kenneth Thrasher, David
R. Jessick, and Roger A. Cooke, and each of them, his true and lawful attorneys
and agents, with full power of substitution and resubstitution for him and in
his name, place and stead, in any and all capacities, to sign one or more Form
S-3 Registration Statements under the Securities Act of 1933, prepared in
connection with the issuance and/or sale of Debt Securities of Fred Meyer, Inc.,
and any and all amendments (including post-effective amendments) thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the following
capacities on the date hereof.
Food 4 Less Holdings, Inc.
GEORGE G. GOLLEHER Director and Chief January 14, 1998
- ------------------------------ Executive Officer
George G. Golleher (Principal Executive Officer)
JOHN STANDLEY Senior Vice President January 14, 1998
- ------------------------------ and Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Group Vice President January 14, 1998
- ------------------------------ and Chief Accounting Officer
Christopher S. Hall (Principal Accounting Officer)
RONALD W. BURKLE Chairman of the Board January 14, 1998
- ------------------------------ of Directors
Ronald W. Burkle
JOE S. BURKLE Director and Executive January 14, 1998
- ------------------------------ Vice President
Joe S. Burkle
PATRICK L. GRAHAM Director January 14, 1998
- ------------------------------
Patrick L. Graham
ROBERT I. BERNSTEIN Director January 14, 1998
- ------------------------------
Robert I. Bernstein
II-13
<PAGE>
LAWRENCE KALANTARI Director January 14, 1998
- ------------------------------
Lawrence Kalantari
JOHN H. KISSICK Director January 14, 1998
- ------------------------------
John H. Kissick
PETER P. COPSES Director January 14, 1998
- ------------------------------
Peter P. Copses
ROBERT D. BEYER Director January 14, 1998
- ------------------------------
Robert D. Beyer
Ralphs Grocery Company
GEORGE G. GOLLEHER Director and Chief January 14, 1998
- ------------------------------ Executive Officer
George G. Golleher (Principal Executive Officer)
JOHN STANDLEY Senior Vice President January 14, 1998
- ------------------------------ Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Group Vice President January 14, 1998
- ------------------------------ and Chief Accounting Officer
Christopher S. Hall (Principal Accounting Officer)
RONALD W. BURKLE Chairman of the Board January 14, 1998
- ------------------------------ of Directors
Ronald W. Burkle
JOE S. BURKLE Director and Executive January 14, 1998
- ------------------------------ Vice President
Joe S. Burkle
PATRICK L. GRAHAM Director January 14, 1998
- ------------------------------
Patrick L. Graham
ROBERT I. BERNSTEIN Director January 14, 1998
- ------------------------------
Robert I. Bernstein
LAWRENCE KALANTARI Director January 14, 1998
- ------------------------------
Lawrence Kalantari
JOHN H. KISSICK Director January 14, 1998
- ------------------------------
John H. Kissick
PETER P. COPSES Director January 14, 1998
- ------------------------------
Peter P. Copses
ROBERT D. BEYER Director January 14, 1998
- ------------------------------
Robert D. Beyer
II-14
<PAGE>
Alpha Beta Company
RONALD W. BURKLE Chairman and Chief January 14, 1998
- ------------------------------ Executive Officer
Ronald W. Burkle (Principal Executive Officer)
JOHN STANDLEY Senior Vice President and January 14, 1998
- ------------------------------ Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Vice President and January 14, 1998
- ------------------------------ Controller
Christopher S. Hall (Principal Accounting Officer)
GEORGE G. GOLLEHER Director and President January 14, 1998
- ------------------------------
George G. Golleher
Bay Area Warehouse Stores, Inc.
Cala Co.
Food 4 Less of California, Inc.
Food 4 Less of Southern California, Inc.
Food 4 Less Merchandising, Inc.
Food 4 Less GM, Inc.
GEORGE G. GOLLEHER Director, Chief Executive January 14, 1998
- ------------------------------ Officer and President
George G. Golleher (Principal Executive Officer)
JOHN STANDLEY Senior Vice President and January 14, 1998
- ------------------------------ Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Vice President and January 14, 1998
- ------------------------------ Controller
Christopher S. Hall (Principal Accounting Officer)
RONALD W. BURKLE Chairman of the Board January 14, 1998
- ------------------------------ of Directors
Ronald W. Burkle
Bell Markets, Inc.
Cala Foods, Inc.
Crawford Stores, Inc.
GEORGE G. GOLLEHER Director and Chief January 14, 1998
- ------------------------------ Executive Officer
George G. Golleher (Principal Executive Officer)
JOHN STANDLEY Senior Vice President and January 14, 1998
- ------------------------------ Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Vice President and January 14, 1998
- ------------------------------ Controller
Christopher S. Hall (Principal Accounting Officer)
RONALD W. BURKLE Chairman of the Board of January 14, 1998
- ------------------------------ Directors
Ronald W. Burkle
II-15
<PAGE>
Falley's, Inc.
JOE S. BURKLE Chief Executive Officer January 14, 1998
- ------------------------------ (Principal Executive Officer)
Joe S. Burkle
JOHN STANDLEY Senior Vice President and January 14, 1998
- ------------------------------ Chief Financial Officer
John Standley (Principal Financial Officer)
CHRISTOPHER S. HALL Vice President and January 14, 1998
- ------------------------------ Controller
Christopher S. Hall (Principal Accounting Officer)
RONALD W. BURKLE Chairman of the Board January 14, 1998
- ------------------------------ of Directors
Ronald W. Burkle
GEORGE G. GOLLEHER Director and Executive January 14, 1998
- ------------------------------ Vice President
George G. Golleher
II-16
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that prior to the completion of the merger
of Q-Acquisition Corp. with Quality Food Centers, Inc., the undersigned
constitutes and appoints Marc W. Evanger and Dan Kourkoumelis and each of them,
his true and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Form S-3 Registration Statements under the
Securities Act of 1933, prepared in connection with the issuance and/or sale of
Debt Securities of Fred Meyer, Inc., and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission; granting unto said attorneys and agents, and each of them,
full power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys and
agents or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Upon completion of the merger of Q-Acquisition Corp. with Quality Food
Centers, Inc., the undersigned constitutes and appoints Robert G. Miller,
Kenneth Thrasher, David R. Jessick, and Roger A. Cooke and each of them, his
true and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Form S-3 Registration Statements under the
Securities Act of 1933, prepared in connection with the issuance and/or sale of
Debt Securities of Fred Meyer, Inc., and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission; granting unto said attorneys and agents, and each of them,
full power and authority to do any and all acts and things necessary or
advisable to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys and
agents or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the following
capacities on the date hereof.
Quality Food Centers, Inc.
CHRISTOPHER A. SINCLAIR Director, President and January 19, 1998
- ------------------------------ Chief Executive Officer
Christopher A. Sinclair (Principal Executive Officer)
MARC W. EVANGER Senior Vice President, January 19, 1998
- ------------------------------ Finance and Administration
Marc W. Evanger (Principal Financial and
Accounting Officer)
STUART M. SLOAN Chairman of the Board January 19, 1998
- ------------------------------ of Directors
Stuart M. Sloan
JOHN W. CREIGHTON, JR. Director January 19, 1998
- ------------------------------
John W. Creighton, Jr.
ROGER K. HUGHES Director January 19, 1998
- ------------------------------
Roger K. Hughes
DAN KOURKOUMELIS Director January 19, 1998
- ------------------------------
Dan Kourkoumelis
MAURICE F. OLSON Director January 19, 1998
- ------------------------------
Maurice F. Olson
MARC H. RAPAPORT Director January 19, 1998
- ------------------------------
Marc H. Rapaport
SHELI Z. ROSENBERG Director January 19, 1998
- ------------------------------
Sheli Z. Rosenberg
II-17
<PAGE>
RONALD A. WEINSTEIN Director January 19, 1998
- ------------------------------
Ronald A. Weinstein
SAMUEL ZELL Director January 19, 1998
- ------------------------------
Samuel Zell
Quality Food, Inc.
Quality Food Holdings, Inc.
CHRISTOPHER A. SINCLAIR President and Chief January 19, 1998
- ------------------------------ Executive Officer
Christopher A. Sinclair (Principal Executive Officer)
MARC W. EVANGER Vice President and Chief January 19, 1998
- ------------------------------ Financial Officer
Marc W. Evanger (Principal Financial and
Accounting Officer)
SAMUEL ZELL Director January 19, 1998
- ------------------------------
Samuel Zell
SHELI Z. ROSENBERG Director January 19, 1998
- ------------------------------
Sheli Z. Rosenberg
QFC Sub, Inc.
MARC W. EVANGER President and Secretary January 19, 1998
- ------------------------------ (Principal Executive Officer)
Marc W. Evanger
SAMUEL ZELL Director January 19, 1998
- ------------------------------
Samuel Zell
SHELI Z. ROSENBERG Director January 19, 1998
- ------------------------------
Sheli Z. Rosenberg
Hughes Markets, Inc.
DAN KOURKOUMELIS President and Chief January 19, 1998
- ------------------------------ Executive Officer
Dan Kourkoumelis (Principal Executive Officer)
DAVID OLIVER Director, Chief Financial January 19, 1998
- ------------------------------ Officer
David Oliver (Principal Financial Officer)
STEVE STRICKLER Corporate Treasurer January 19, 1998
- ------------------------------ (Principal Accounting Officer)
Steve Strickler
CHRISTOPHER A. SINCLAIR Director January 19, 1998
- ------------------------------
Christopher A. Sinclair
MARC W. EVANGER Director January 19, 1998
- ------------------------------
Marc W. Evanger
STUART M. SLOAN Director January 19, 1998
- ------------------------------
Stuart M. Sloan
ROGER K. HUGHES Chairman of the Board January 19, 1998
- ------------------------------ of Directors
Roger K. Hughes
II-18
<PAGE>
Hughes Realty, Inc.
ROGER K. HUGHES Director and Chief January 19, 1998
- ------------------------------ Executive Officer
Roger K. Hughes (Principal Executive Officer)
ALLAN P. BRENNAN Director and Chief January 19, 1998
- ------------------------------ Financial Officer
Allan P. Brennan (Principal Financial and
Accounting Officer)
PAUL A. HUGHES Director and Secretary January 19, 1998
- ------------------------------
Paul A. Hughes
KU Acquisition Corporation
DAN KOURKOUMELIS Director and President January 19, 1998
- ------------------------------ (Principal Executive Officer)
Dan Kourkoumelis
MARC W. EVANGER Director, Vice President, January 19, 1998
- ------------------------------ Secretary and Treasurer
Marc W. Evanger (Principal Financial Officer)
Second Story, Inc.
MARC W. EVANGER Director, President and January 19, 1998
- ------------------------------ Secretary
Marc W. Evanger (Principal Executive and
Financial Officer)
II-19
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Exhibit
*1.1 Form of Underwriting Agreement
2.1 FM/QFC Merger Agreement (incorporated by reference
to Exhibit 99.1 to the Company's Report on Form 8-K,
filed November 6, 1997)
2.2 FM/FFL Merger Agreement (incorporated by reference
to Exhibit 99.2 to the Company's Report on Form 8-K,
filed November 6, 1997)
4 Form of Indenture
**5 Opinion by Stoel Rives LLP Regarding Legality of
Debt Securities
12 Statement Regarding Computation of Ratios
23.1 Consent of Deloitte & Touche LLP (Portland)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP (Seattle)
23.4 Consent of Stoel Rives LLP (See Exhibit 5)
24 Powers of Attorney (See also signature page of this
Registration Statement)
25 Statement of Eligibility of Trustee
* To be filed in Company's Form 8-K Report.
** To be filed by Amendment.
EXHIBIT 4
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
FRED MEYER, INC.
AND THE GUARANTORS NAMED HEREIN
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
INDENTURE
Dated as of _________, 1998
Providing for Issuance of
Debt Securities in Series
<PAGE>
FRED MEYER, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
ss.310 (a) (1) . . . . . . . . . 609
(a) (2) . . . . . . . . . 609
(a) (3) . . . . . . . . . Not Applicable
(a) (4) . . . . . . . . . Not Applicable
(b) . . . . . . . . . 608
610
ss.311 (a) . . . . . . . . . 613
(b) . . . . . . . . . 613
(c) . . . . . . . . . Not Applicable
ss.312 (a) . . . . . . . . . 701
702(a)
(b) . . . . . . . . . 702(b)
(c) . . . . . . . . . 702(c)
ss.313 (a) . . . . . . . . . 703(a)
(b) . . . . . . . . . 703(a)
(c) . . . . . . . . . 703(a)
(d) . . . . . . . . . 703(b)
ss.314 (a) . . . . . . . . . 704
(a) (4) . . . . . . . . . 101
1004
(b) . . . . . . . . . Not Applicable
(c) (1) . . . . . . . . . 102
(c) (2) . . . . . . . . . 102
(c) (3) . . . . . . . . . Not Applicable
(d) . . . . . . . . . Not Applicable
(e) . . . . . . . . . 102
ss.315 (a) . . . . . . . . . 601
(b) . . . . . . . . . 602
(c) . . . . . . . . . 601
(d) . . . . . . . . . 601
(e) . . . . . . . . . 514
ss. 316 (a) . . . . . . . . . 101
(a) (1) (A) . . . . . . . . . 502
512
(a) (1) (B) . . . . . . . . . 513
(a) (2) . . . . . . . . . Not Applicable
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(b) . . . . . . . . . 508
(c) . . . . . . . . . 104(c)
ss.317 (a) (1) . . . . . . . . . 503
(a) (2) . . . . . . . . . 504
(b) . . . . . . . . . 1003
ss.318 (a) . . . . . . . . . 107
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
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TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.....................................................1
Section 102. Compliance Certificates and Opinions............................8
Section 103. Form of Documents Delivered to Trustee..........................9
Section 104. Acts of Holders; Record Dates...................................9
Section 105. Notices, Etc., to Trustee, the Company and the Guarantors......10
Section 106. Notice to Holders; Waiver......................................11
Section 107. Conflict with Trust Indenture Act..............................11
Section 108. Effect of Headings and Table of Contents.......................11
Section 109. Successors and Assigns.........................................12
Section 110. Separability Clause............................................12
Section 111. Benefits of Indenture..........................................12
Section 112. Governing Law..................................................12
Section 113. Legal Holidays.................................................12
Section 114. Independence of Covenants......................................12
Section 115. Counterparts...................................................13
Section 116. Duplicate Originals............................................13
ARTICLE TWO
Security Forms
Section 201. Forms Generally................................................13
Section 202. Additional Provisions Required in Book-Entry Security..........13
Section 203. Form of Trustee's Certificate of Authentication................14
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series...........................14
Section 302. Denominations..................................................17
Section 303. Execution, Authentication, Delivery and Dating.................17
Section 304. Temporary Securities...........................................19
Section 305. Registration, Registration of Transfer and Exchange............20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............21
Section 307. Payment of Interest; Interest Rights Preserved.................22
Section 308. Persons Deemed Owners..........................................23
Section 309. Cancellation...................................................23
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Section 310. Computation of Interest........................................24
Section 311. CUSIP Numbers..................................................24
Section 312. Deposits of Monies ............................................24
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture........................25
Section 402. Application of Trust Money.....................................25
ARTICLE FIVE
Remedies
Section 501. Events of Default..............................................26
Section 502. Acceleration of Maturity; Rescission and Annulment.............28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee30
Section 504. Trustee May File Proofs of Claim...............................30
Section 505. Trustee May Enforce Claims Without Possession of Securities....31
Section 506. Application of Money Collected.................................31
Section 507. Limitation on Suits............................................32
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest...................................................32
Section 509. Restoration of Rights and Remedies.............................33
Section 510. Rights and Remedies Cumulative.................................33
Section 511. Delay or Omission Not Waiver...................................33
Section 512. Control by Holders.............................................33
Section 513. Waiver of Past Defaults........................................34
Section 514. Undertaking for Costs..........................................34
Section 515. Waiver of Usury, Stay or Extension Laws........................34
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities............................35
Section 602. Notice of Defaults.............................................35
Section 603. Certain Rights of Trustee......................................35
Section 604. Not Responsible for Recitals or Issuance of Securities.........36
Section 605. May Hold Securities............................................36
Section 606. Money Held in Trust............................................37
Section 607. Compensation and Reimbursement.................................37
Section 608. Disqualification; Conflicting Interests .......................38
Section 609. Corporate Trustee Required; Eligibility........................38
Section 610. Resignation and Removal; Appointment of Successor..............38
Section 611. Acceptance of Appointment by Successor.........................40
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Section 612. Merger, Conversion, Consolidation or Succession to Business....41
Section 613. Preferential Collection of Claims Against Company..............42
Section 614. Appointment of Authenticating Agent............................42
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders......43
Section 702. Preservation of Information; Communications to Holders.........44
Section 703. Reports by Trustee.............................................44
Section 704. Reports by Company.............................................44
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........45
Section 802. Successor Substituted..........................................45
Section 803. Officers' Certificate and Opinion of Counsel...................46
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.............46
Section 902. Supplemental Indentures with Consent of Holders; Waiver........47
Section 903. Execution of Supplemental Indentures...........................49
Section 904. Effect of Supplemental Indentures..............................49
Section 905. Conformity with Trust Indenture Act............................49
Section 906. Reference in Securities to Supplemental Indentures.............49
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.....................50
Section 1002. Maintenance of Office or Agency................................50
Section 1003. Money for Securities Payments to Be Held in Trust..............50
Section 1004. Statement by Officers as to Default............................52
Section 1005. Existence......................................................52
Section 1006. INTENTIONALLY LEFT BLANK.......................................52
Section 1007. Payment of Taxes and Other Claims..............................52
Section 1008. Maintenance of Properties......................................52
Section 1009. Calculation of Original Issue Discount.........................53
Section 1010. Additional Guarantors..........................................53
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.......................................53
Section 1102. Election to Redeem: Notice to Trustee..........................54
Section 1103. Selection by Trustee of Securities to Be Redeemed..............54
Section 1104. Notice of Redemption...........................................54
Section 1105. Deposit of Redemption Price....................................55
Section 1106. Securities Payable on Redemption Date..........................55
Section 1107. Securities Redeemed in Part....................................56
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.......................................56
Section 1202. Satisfaction of Sinking Fund Payments with Securities..........56
Section 1203. Redemption of Securities for Sinking Fund......................57
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.........................................57
Section 1302. Defeasance and Discharge.......................................57
Section 1303. Covenant Defeasance............................................58
Section 1304. Conditions to Defeasance or Covenant Defeasance................58
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions..........................60
Section 1306. Reinstatement..................................................61
ARTICLE FOURTEEN
Guarantees
Section 1401. Unconditional Guarantees.......................................61
Section 1402. Severability...................................................62
Section 1403. Release of a Guarantor.........................................62
Section 1404. Limitation of a Guarantor's Liability..........................63
Section 1405. Guarantors May Consolidate, etc., on Certain Terms.............63
Section 1406. Contribution...................................................63
Section 1407. Waiver of Subrogation..........................................64
Section 1408. Execution of Guarantee.........................................64
Section 1409. No Suspension of Remedies......................................65
Section 1410. Obligations Reinstated.........................................65
Section 1411. No Obligation to Take Action Against the Company...............65
Section 1412. Dealing with the Company and Others............................65
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<PAGE>
INDENTURE, dated as of ____________, 1998, among Fred Meyer, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 3800 SE 22nd
Avenue, Portland, Oregon, each of the Guarantors (as defined in Section 101
below) and The First National Bank of Chicago, a national banking association,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean, unless otherwise
provided in a supplemental
<PAGE>
indenture or board resolution relating to the issuance of a series of
securities, such accounting principles as are generally accepted at the
date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means 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 specified 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 "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of the Company or
any Guarantor, as applicable, or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or any Guarantor, as applicable, to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in this
Indenture, or any supplement to this Indenture or Board Resolution, evidencing
all or part of the Securities of any series, issued to the Depositary for such
series or its nominee, and registered in the name of such Depositary or such
nominee, and bearing the legend set forth in Section 202.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
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<PAGE>
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of original execution of this Indenture is located at One
First National Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate
Trust Administration, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the Trustee at
which at any particular time its corporate agency business shall be conducted,
which at the date of original execution of this Indenture is located at c/o
First Chicago Trust Company of New York, 14 Wall Street, 8th Floor-Window 2, New
York, New York 10005.
"Corporation" means a corporation, limited liability company, association,
company, joint-stock company or business trust.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Book-Entry Securities,
the Person designated as Depositary for such series by the Company pursuant to
Section 301, which Person shall be a clearing agency registered under the
Securities Exchange Act of 1934; and if at any time there is more than one such
Person 'Depositary' as used with respect to the Securities of any series shall
mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Guarantee" means the guarantee of Securities of any applicable series and
the Company's obligations under this Indenture with respect to such series by
each Guarantor under this Indenture.
-3-
<PAGE>
"Guarantors" means (i) the Subsidiaries of the Company which have executed
this Indenture as a Guarantor as of the date hereof; and (ii) each of the
Company's Subsidiaries, whether formed, created or acquired before or after the
issue date of Securities of any Series, which becomes a guarantor of Securities
pursuant to the provisions of this Indenture.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the forms and terms of particular series of
Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal or interest
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption required
repurchase or otherwise.
"Obligor" means the Company, each of the Guarantors, or any other obligor
on the Securities of a series or any Guarantees thereof or under this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, of the Company or any Guarantor, as
applicable, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company or any Guarantor, as
applicable. Each such certificate shall include the statements provided for in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or any Guarantor, as applicable, and who shall be acceptable to
the Trustee. Each such opinion shall include the statements provided for in
Section 102.
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<PAGE>
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or any Guarantor or any Affiliate thereof) in trust
or set aside and segregated in trust by the Company or any Guarantor or any
Affiliate thereof (if the Company or such Guarantor or such Affiliate shall
act as Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to Section 1104 of this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calcula tions required
by section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making
-5-
<PAGE>
such determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) Securities owned by the Company, any
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
The Company shall notify the Trustee, in writing, when it or any Guarantor or
any of their respective Affiliates repurchases or otherwise acquires Securities
and of the aggregate principal amount of such Securities so repurchased or
otherwise acquired. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company, any Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Guarantor or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 301 and 1002. Unless otherwise provided as contemplated by Section 301,
a Place of Payment will be at the office or agency maintained by the Company in
the borough of Manhattan in the City of New York.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
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<PAGE>
"Responsible Officer," when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" means, at any date of determination, (i) any
Subsidiary that, together with its Subsidiaries (a) for the most recent fiscal
year of the Company accounted for more than 10.0% of the consolidated revenues
of the Company and the Subsidiaries or (b) as of the end of such fiscal year,
owned more than 10.0% of the consolidated assets of the Company and the
Subsidiaries, and (ii) for purposes of Section 501 any other Subsidiary that
when aggregated with all other Subsidiaries that are not otherwise Significant
Subsidiaries and as to which any event described in (7), (8), or (9) of Section
501 has occurred, together with their respective Subsidiaries, would constitute
a Significant Subsidiary pursuant to clause (i) of this sentence, all as set
forth on the consolidated financial statements of the Company and the
Subsidiaries for such year prepared in conformity with GAAP. For purposes of
Section 1010, "Significant Subsidiary" shall include (i) any Subsidiary that
would constitute a Significant Subsidiary pursuant to clause (i) of the previous
sentence and (ii) all other Subsidiaries that are not Significant Subsidiaries
pursuant to clause (i) of the previous sentence if all such Subsidiaries in the
aggregate, together with their respective Subsidiaries, would constitute a
Significant Subsidiary pursuant to clause (i) of the previous sentence,
provided, however, that, in the case of clauses (i) and (ii) of this sentence,
the 10.0% threshold in clause (i) of the previous sentence shall be 3.0%, all as
set forth on the consolidated financial statements of the Company and the
Subsidiaries for such year prepared in conformity with GAAP.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of capital stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or
-7-
<PAGE>
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person. Unless the context otherwise
requires, reference to "Subsidiary" is to a Subsidiary of the Company.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section 1304.
"Vice President," when used with respect to the Company, any Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
such Guarantor, as applicable, shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company or such Guarantor, as applicable, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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;
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<PAGE>
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or such
Guarantor, as applicable, stating that the information with respect to such
factual matters is in the possession of the Company or such Guarantor, as
applicable, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or repre sentations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to
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Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee, the Company and the Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing
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to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company, or any Guarantor, by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company, or to any Guarantor, addressed to it at the address of the
Company's principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or the
Guarantees 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the Guarantees, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
THIS INDENTURE, THE SECURITIES OF EACH SERIES, AND THE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date of
required repurchase, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section)) payment of interest or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, the Redemption Date, date of required
repurchase, or at the Stated Maturity or Maturity.
Section 114. Independence of Covenants.
All covenants and agreements in this Indenture shall be given independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default if such action is taken or condition exists.
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Section 115. Counterparts.
This Indenture may be executed in any number of counterparts and by
telecopier, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 116. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may, con
sistently herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form of Securities of any
series is established by, or by action taken pursuant to, a Board Resolution, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, typewritten, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the Securities of any series and the
Guarantees shall constitute, and be expressly made, a part of this Indenture.
The terms and provisions contained in the Securities of any series shall
constitute, and are expressly made, part of this Indenture.
Section 202. Additional Provisions Required in Book-Entry Security.
Any Book-Entry Security issued hereunder shall bear a legend in
substantially the following form:
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"This Security is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security is exchangeable for Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture and may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or its nominee to a successor Depositary or its nominee."
Section 203. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
Dated: ______________
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago
As Trustee
----------
By..........................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
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(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) Places of Payment for Securities of the series;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, formula or
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other method, the index, formula or other method by which such amounts
shall be determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the other terms
and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(14) the application, if any, of Section 1302 or 1303 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
(16) any additional, modified or different covenants applicable to one
or more particular series of Securities;
(17) any addition to or change in the Events of Default which apply to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any additional terms with respect to the Guarantees, including,
without limitation, terms relating to release of Guarantees and the
addition of additional Guarantors; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture
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supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Each Guarantor shall execute the Guarantee in the manner set forth in Section
1408.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that, in the case of Securities of
a series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been estab lished in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this
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Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Book-Entry Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver or make available for delivery one or more Securities
in such form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Book-Entry Security or Securities, (ii) shall
be registered in the name of the Depositary for such Book-Entry Security or
Securities or the nominee of such Depositary, (iii) shall be delivered to the
Trustee as custodian for such Depositary and (iv) shall bear the legend set
forth in Section 202.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities
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Exchange Act of 1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so registered.
The Holder of any Book-Entry Security may grant proxies and otherwise
authorize any Person, including Persons that may hold interests through
participants in such Depositary, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver
or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver or make available for delivery in exchange
therefor one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
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Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver or make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such
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mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Transfers of any Book-Entry Security shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Book-Entry Security may be
transferred or exchanged for definitive Securities in accordance with the rules
and procedures of the Depositary. In addition, definitive Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a Book-Entry Security if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Book-Entry Security 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 Depositary to issue definitive
Securities.
In connection with any transfer or exchange of a portion of the beneficial
interest in any Book-Entry Security to beneficial owners pursuant to the above
paragraph, the Security Registrar shall (if one or more definitive Securities
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Book-Entry Security in an amount equal to the
principal amount of the beneficial interest in the Book-Entry Security to be
transferred, and the Company and the Guarantors shall execute, and the Trustee
shall authenticate and deliver, one or more definitive Securities of like tenor
and amount.
In connection with the transfer of an entire Book-Entry Security to
beneficial owners, the Book-Entry Security shall be deemed to be surrendered to
the Trustee for cancellation, and the Company and the Guarantors shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Book-Entry Security, an equal aggregate principal amount of definitive
Securities of authorized denominations.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver or make available for
delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for
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the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by the Trustee and such
cancellation shall be noted conspicuously on each such Security. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
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acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. Unless the Company directs otherwise by a Company Order, all canceled
Securities held by the Trustee may be destroyed, but the Trustee shall not be
obligated to so destroy such Securities, and, if any such canceled Security is
destroyed, the Trustee shall furnish to the Company a certificate with respect
to such destruction.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
Section 312. Deposits of Monies.
Prior to 12:00 p.m. noon New York City time on each Interest Payment Date,
Redemption Date, Stated Maturity and date of required repurchase, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Stated Maturity and date of required repurchase, as the case
may be, in a timely manner which permits the Paying Agent to remit payment to
the Holders entitled to such payment on such Interest Payment Date, Redemption
Date, Stated Maturity and date of required repurchase, as the case may be.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of any series (except as to any surviving rights of
registration of transfer, exchange or replacement of such Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) such Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency unit or units
in which such Securities are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for
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relating to the satisfaction and discharge of this Indenture with respect
to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of and any premium
and interest on the Securities for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or any Guarantor in this Indenture with respect to
Securities of that series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such
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default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series 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 (except in the case of a
default or breach of any covenant or warranty in Article Eight which will
constitute an Event of Default with notice but without such passage of
time); or
(5) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness for money borrowed of the Company or
any Subsidiary, whether such indebtedness now exists or shall hereafter be
created, if (A) such default either (1) results from the failure to pay the
principal or interest of any such indebtedness at its stated maturity or
(2) relates to an obligation other than the obligation to pay the principal
or interest of such indebtedness at its stated maturity and results in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, (B) the principal
amount of such indebtedness, together with the principal amount of any
other such indebtedness in default for failure to pay principal or interest
at stated maturity or the maturity of which has been so accelerated,
aggregates $30.0 million or more at any one time outstanding and (C) such
indebtedness is not discharged, or such acceleration is not rescinded or
annulled within a period of 10 Business Days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of Outstanding Securities a written notice specifying such event of default
and requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such indebtedness to be discharged and stating that
such notice is a "Notice of Default" hereunder; or
(6) one or more judgments, order, or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$30.0 million either individually or in the aggregate shall have been
rendered against the Company or any Significant Subsidiary (whether or not
a Guarantor) or any of their respective properties and shall not have been
discharged and either (a) any creditor shall have commenced an enforcement
proceeding upon such judgement, order, or decree or (b) there shall have
been a period of 60 consecutive days during which a stay of enforcement of
such judgment, order or decree, by reason of appending appeal or otherwise,
shall not be in effect;
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary (whether or not a Guarantor) in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
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respect of the Company or any Significant Subsidiary (whether or not a
Guarantor) under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary (whether or
not a Guarantor) or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(8) the commencement by the Company or any Significant Subsidiary
(whether or not a Guarantor) of a voluntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company or any Significant Subsidiary (whether or
not a Guarantor) in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking pos session by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Significant Subsidiary (whether or not a Guarantor) or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Significant Subsidiary (whether or
not a Guarantor) in furtherance of any such action; or
(9) any Guarantee of a Guarantor which is a Significant Subsidiary
ceases to be in full force and effect (other than in accordance with the
terms of such Guarantee and this Indenture) or is declared null and void
and unenforceable or found to be invalid or any Guarantor denies its
liability under its Guarantee (other than by reason of release of a
Guarantor from its Guarantee in accordance with the terms of this Indenture
and the Guarantee); or
(10) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default described in clause
7 or 8 of Section 501 with respect to the Company) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of such
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Securities as may be specified in the terms thereof) of all of the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or, in the case of Original Issue Discount Securities or
Indexed Securities, such specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 7 or 8 of Section 501 occurs
with respect to the Company, the Outstanding Securities shall ipso facto become
immediately due and payable without need of any declaration or other act on the
part of the Trustee or any Holder.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and interest on any
overdue principal and premium and, to the extent of such interest payment be
legally enforceable, on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion, but is not obligated under
this paragraph to, (i) proceed to protect and enforce its rights and the rights
of the Holders under this Indenture or any Guarantee by such appropriate private
or judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted herein, including, without limitation, seeking recourse against any
Guarantor or (ii) proceed to protect and enforce any other proper remedy,
including, without limitation, seeking recourse against any Guarantor. No
recovery of any such judgment upon any property of the Company or any Guarantor
shall affect or impair any rights, powers or remedies of the Trustee or the
Holders. If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities, including any Guarantor), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order (a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in
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order to have the claims of the Trustee (including any claim for the reasonable
compensation, fees, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
any Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
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THIRD: The balance, if any, to the Company, or to such other Person or
Persons entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee before or during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or any required repurchase, on the
Redemption Date or such purchase date, as applicable) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantors, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable counsel fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, the Trustee or any Holder, or group of
Holders, holding 10% in aggregate principal amount of the Outstanding Securities
of any series, or in any suit instituted by any Holder for the enforcement of
the payment of the principal of, premium, if any, or interest on any Security on
or after the respective Stated Maturities or Maturities expressed in such
Security (or, in the case of redemption or any required repurchase, on or after
the Redemption Date or purchase date, as applicable).
Section 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee,
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but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. Notwithstanding the
foregoing, 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. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default within 90 days after the occurrence thereof as and to the extent
provided by the Trust Indenture Act.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein
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specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness 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, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and in the Guarantees,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company and the Guarantors, and neither the Trustee nor any
Authenticating Agent assumes any responsi bility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities except that the Trustee represents that it is
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duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 to be supplied to the Company are
true and accurate subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and act as
trustee under other indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding in
the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the
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costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 607, except with respect to funds held in trust
for the benefit of the Holders of particular Securities or for the redemption
price or repurchase price for Securities to be redeemed or repurchased.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and an office in the
Borough of Manhattan, The City of New York at which at any particular time its
corporate trust business may be administered. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of any
Federal or state supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall
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be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee
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is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; provided,
however, that to the extent that such property and money is not held by the
Trustee in trust for the benefit of the Holders of particular Securities, such
retiring Trustee shall transfer and deliver to such successor Trustee such
property and money upon payment of its charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such suc cessor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities including the Guarantors), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
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provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
Dated: _______________
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
__________________, As Trustee
By_______________________________________________
As Authenticating Agent
By_______________________________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding January 1 or July 1, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of then shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 1 following the date of the first issuance deliver to
Holders a brief report, dated as of such May 1, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease, in one transaction or a series of related
transactions, all or substantially all its properties and assets to any Person,
unless:
(1) either the Company shall be the continuing corporation, or any
successor Person or purchaser shall be a corporation organized and validly
existing under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under
this Indenture and the Securities.
(2) immediately after giving effect to such transaction, or series of
related transactions, no Default or Event of Default, shall have occurred
and be continuing; and
(3) if a supplemental indenture is to be executed in connection with
such consolidation, merger, transfer or lease, the Company and Guarantors
shall have delivered to the Trustee (A) an Officers' Certificate and (B) an
Opinion of Counsel attesting to compliance with these provisions; and
(4) such other conditions are satisfied as provided with respect to
Securities of a series as contemplated by Section 301.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company with
or into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company substantially as an
entirety in accordance with Section 801 in which the Company is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
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Section 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, the Guarantors, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company or any Guarantor; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to
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such provision or (ii) shall become effective only when there is no
Securities of such series Outstanding; or
(6) to secure the Securities; or
(7) to establish the form and terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which is mistaken or may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture, the Securities, or any Guarantee provided
that such action pursuant to this clause (10), other than with respect to a
mistaken provision, shall not adversely affect the rights of the Holders of
Securities of any series in any material respect.
(11) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
(12) to add a Guarantor pursuant to Section 1010 or remove a Guarantor
in respect of any series which, in accordance with the terms of this
Indenture applicable to the particular series, ceases to be liable in
respect of its Guarantee.
Section 902. Supplemental Indentures with Consent of Holders; Waiver.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series (voting as a
separate class), affected by such supplemental indenture (or other waiver
document, in the case of a waiver), by Act of said Holders delivered to the
Company and the Trustee, the Company when authorized by a Board Resolution, the
Guarantors, and the Trustee may enter into an indenture or indentures
supplemental hereto (or other waiver document, in the case of a waiver) for the
purpose of adding any provisions to or changing in any manner or eliminating or
waiving any of the provisions of this Indenture or of modifying in any manner
the rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental
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indenture (or such waiver document) shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Maturity or Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption or repurchase thereof, or reduce the amount of
the principal of an Original Issue Dis count Security or any other Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repurchase, on or after the Redemption
Date or repurchase date, as applicable), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any provision of this Indenture relating to the time at
which any Security may be redeemed or requiring the repurchase of such
Security by the Company, or any of the definitions with respect thereto, or
(4) modify any of the provisions of this Section or Section 513,
except to increase any percentage set forth in such Sections or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
(5) modify the ranking or priority of the Securities of any series or
the Guarantee thereof;
(6) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise in accordance with the terms of this
Indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securi ties of that series and this Indenture
may be served. The office of the Trustee at its Corporate Trust Office shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more other purposes. The Company
will give prompt written 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 Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series 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 each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company, any Guarantor, or any of their respective affiliates shall
at any time act as Paying Agent with respect to any series of Securities, it
will, and shall cause such Guarantor or Affiliate, if applicable, on or before
each due date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
and interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents (other than the
Company, a Guarantor, or any Affiliate thereof) for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held in trust as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act and this Indenture applicable to it as a Paying Agent; (ii)
give the Trustee notice of any Default or Event of Default by the Company or any
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, premium, or interest in respect of the
Securities of that series; and (iii) during the continuance of any such Default
or Event of Default and upon the written request of the Trustee, forthwith pay
to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
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Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight and Article Fourteen, the Company and any
Subsidiary will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights (charter and statutory), licenses
and franchises; provided, however, that the Company or any Subsidiary shall not
be required to preserve any such right, license 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 or such Subsidiary and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 1006. INTENTIONALLY LEFT BLANK.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 1008. Maintenance of Properties.
The Company shall cause all material properties owned or leased by the
Company or any of the Subsidiaries or used or held for use in the conduct of
their respective businesses 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 the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section 1008 shall prevent the Company from selling property in the ordinary
course of business, or selling such properties
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which are no longer necessary or desirable for the conduct of its business or
the business of its Subsidiaries, or discontinuing the 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 of the
Subsidiaries.
Section 1009. Calculation of Original Issue Discount.
If the Trustee is requested or required to send Form 1099 (or any successor
form) to Holders of Original Issue Discount Securities, the Company shall file
with the Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
Section 1010. Additional Guarantors.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, if the Company or any of the Guarantors transfers or causes to be
transferred, in one transaction or a series of related transactions, any
property to any Subsidiary of the Company that is not a Guarantor, or if the
Company or any of the Guarantors shall organize, acquire or otherwise invest in
another Person that becomes a Subsidiary of the Company and such Subsidiary is a
Significant Subsidiary, then the Company shall cause such transferee or acquired
or other Subsidiary or Significant Subsidiary, as applicable, to (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such Subsidiary shall unconditionally guarantee
all of the Company's obligations under the Securities of any series that has the
benefit of Guarantees of other Subsidiaries of the Company and this Indenture
(as it relates to all such series) on the terms set forth in this Indenture and
(ii) deliver to the Trustee an Opinion of Counsel that such supplemental
indenture has been duly authorized, executed and delivered by such Subsidiary
and constitutes a legal, valid, binding and enforceable obligation of such
Subsidiary. Thereafter, such Subsidiary shall be a Guarantor for all purposes of
this Indenture (as it relates to all such series).
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable in whole or in part before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
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Section 1102. Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities or portions thereof to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed, or if the Securities are
not listed on a national securities exchange, by lot or by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including, if applicable, CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof shall be
issued and authenticated;
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to 12:00 noon New York City time on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company, any
Guarantor or any Affiliate thereof is acting as a Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities,
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registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor, and the Company and the Guarantors shall execute, and
the Trustee shall authenticate and deliver or make available for delivery to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such
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purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1302 (if applicable) or Section 1303 (if
applicable) applied to the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section applied to
any series of Securities the Company and the Guarantors shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
of such series on and after the date the conditions precedent set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series which
shall
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thereafter be deemed to be "Outstanding" only for the purposes of the Sections
of this Indenture referred to in clauses (A) and (B) of this Section, 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: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1304 as
more fully set forth in such Section, payments of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's and the Guarantors' obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003 and such obligations as shall be ancillary
thereto, (C) the rights, powers, trusts, duties, immunities and other provisions
in respect of the Trustee hereunder and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may exercise its option under
this Section 1302 notwithstanding the prior exercise of its option under Section
1303 with respect to the Securities of such series. Following a defeasance,
payment of such Securities may not be accelerated because of an Event of
Default.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any series of Securities the Company and the Guarantors shall be
released from its obligations under Section 801 (and any covenant made
applicable to such Securities pursuant to Section 301 to be subject to this
provision) and the occurrence of an event specified in Section 501(4) (with
respect to Section 801) (and any other Event of Default applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 801 (and any other
covenant made applicable to such Security pursuant to Section 301), 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 of such series, the Company and the Guarantors may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in Section 801 (and any other covenant made applicable to such
Security pursuant to Section 301) or such other covenant whether directly or
indirectly by reason of any reference elsewhere herein to Section 801 or such
other covenant or by reason of any reference in Section 801 or such other
covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either
Section 1302 or Section 1303 to the Outstanding Securities of or within such
series:
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(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount (in such currency, currencies or currency units in which
such Securities are then specified as payable at Maturity), or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof in an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Stated Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities;
provided, however, that the Trustee shall have been irrevocably instructed
to apply such cash or the proceeds of such U.S. Government Obligations to
said payments with respect to such Securities. Before such a deposit the
Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with
Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depositary receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(2) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in
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respect of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1302, 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 date of this Indenture 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 of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series 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.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) 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 defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other
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qualifying trustee (collectively, for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of
such series 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 (but not including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304 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 defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and each Guarantor's obligations under the
Securities of such series and this Indenture shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Thirteen until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (and premium, if any) or interest on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
Guarantees
Section 1401. Unconditional Guarantees.
Subject to any other provisions set forth in the Board Resolution or
supplemental indenture relating to a particular series, each Guarantor hereby
unconditionally, jointly and severally, guarantees (each such guarantee to be
referred to herein as the "Guarantee") to each Holder of Securities of such
Series authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the
Securities of such se-
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ries will be promptly paid in full when due, whether at Maturity, by
acceleration or otherwise and interest on the overdue principal, if any, and
interest on any interest of the Securities of such series and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Securities of such series 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 whether at Maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 1404; provided, however, that notwithstanding
anything contained herein to the contrary, no Guarantor shall be liable under
this Indenture until it becomes a direct or indirect Subsidiary of the Company.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities of such series or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities of such
series 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 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, subject
to Section 1403, this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities of the applicable
series, this Indenture and in this Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company, any Guarantor, or
any custodian, trustee, liquidator or other similar official acting in relation
to the Company or any Guarantor, any amount paid by the Company or any Guarantor
to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between each 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 Five 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 Five,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
Section 1402. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1403. Release of a Guarantor.
Upon the sale or disposition (whether by merger, stock purchase, asset sale
or otherwise) of a Guarantor (or all or substantially all its assets) to a
Person which is not a Subsidiary and which sale or disposition is otherwise in
compliance with the terms of this Indenture, then such
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<PAGE>
Guarantor (in the event of a sale or other disposition of such Guarantor) or the
Person acquiring such assets (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor) shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Article Fourteen without any further action required on the part of
the Trustee or any Holder.
Any Guarantor not released in accordance with this Section 1403 remains
liable for the full amount of principal of and interest on the Securities as
provided in this Article Fourteen.
Section 1404. Limitation of a Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
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 Guarantor hereby
irrevocably agree that the obligations of such 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 Guarantor and after giving effect to
any collections or rights with respect thereto from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 1406, result in the
obligations of such Guarantor under the Guarantee not constituting such
fraudulent transfer or conveyance.
Section 1405. Guarantors May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale of assets or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor that is a Significant Subsidiary of the Company.
Upon any such consolidation, merger, sale or conveyance, the Guarantee given by
such Guarantor shall no longer have any force or effect.
Section 1406. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guaran tor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
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 any Securities or any other Guarantor's obligations
with respect to the Guarantee. "Adjusted Net Assets" of such Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value of the
property of such 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 and after
giving effect to any collection from any
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other Subsidiary of the Guarantor in respect of the obligations of its
Guarantee), but excluding liabilities under the Guarantee of such Guarantor at
such date and (y) the present fair salable value of the assets of such Guarantor
at such date exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any other Subsidiary of the Company in respect of
the obligations of such Guarantor under its Guarantee), excluding debt in
respect of the Guarantee of such Guarantor, as they become absolute and matured.
Section 1407. Waiver of Subrogation.
Until all guaranteed obligations under this Indenture and with respect to
all Securities of an applicable series are paid in full, each 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 Guarantor's obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Securities of the applicable series 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 Guarantor in
violation of the preceding sentence and the Securities of the applicable series
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities of the applicable series, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities of the applicable series, whether matured or
unmatured, in accordance with the terms of this Indenture. Each 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 1407 is knowingly made in contemplation of such benefits.
Section 1408. Execution of Guarantee.
To evidence their guarantee to the Holders set forth in this Article
Fourteen, the Guarantors hereby agree to execute the Guarantee in substantially
the form set forth in the Board Resolution or supplemental indenture pertaining
to the applicable series, which shall be endorsed on each Security ordered to be
authenticated and delivered by the Trustee. Each Guarantor hereby agrees that
its Guarantee set forth in this Article Fourteen 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 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 Guarantor. Such signatures upon the
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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 who signed the Guarantee had not ceased to be such officer of the
Guarantor.
Section 1409. No Suspension of Remedies
Nothing contained in this Article Fourteen shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 1410. Obligations Reinstated
Except as provided in Section 1403, the obligations of each Guarantor
hereunder shall continue to be effective or shall be reinstated, as the case may
be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor hereunder (whether such payment shall have been
made by or on behalf of the Company or by or on behalf of a Guarantor) is
rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy,
liquidation or reorganization of the Company or any Guarantor or otherwise, all
as though such payment had not been made. If demand for, or acceleration of the
time for, payment by the Company is stayed upon insolvency, bankruptcy,
liquidation or reorganization of the Company, all such indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
Section 1411. No Obligation to Take Action Against the Company
Neither the Trustee nor any other Person shall have any obligation to
enforce or exhaust any rights or remedies or to take any other steps under any
security for the obligations under this Indenture or against the Company or any
other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by any or all Guarantors
of their liabilities and obligations under their Guarantees or under this
Indenture.
Section 1412. Dealing with the Company and Others
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Company or any other Person;
(b) take or abstain from taking any action in obtaining security or
collateral from the Company or in perfecting a security interest in any security
or collateral of the Company;
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(c) release, discharge, compromise, realize, enforce or otherwise deal with
or do any act or thing in respect of (with or without consideration) any and all
collateral, mortgages or other security given by the Company or any third party
with respect to the obligations or matters contemplated by this Indenture or the
Securities;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from any
security upon such part of the obligations under this Indenture as the Holders
may see fit or change any such application in whole or part from time to time as
the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with, the
Company and all other Persons and any security as the Holders or the Trustee may
see fit.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
FRED MEYER, INC.
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
[LIST OF GUARANTORS]
By
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By
------------------------------------------
Name:
Title:
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<PAGE>
STATE OF OREGON )
) ss
County of Multnomah )
On the _______day of _________, 1998 before me personally came
________________________ and ______________________, to me known, who, being by
me duly sworn, did depose and say that they are _________________________, and
________________________, respectively, of Fred Meyer, Inc., one of the
corporations described in and which executed the foregoing instrument; and that
they signed their names thereto by like authority of the Board of Directors of
said corporation.
--------------------------------------------
Notary Public
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<PAGE>
STATE OF ILLINOIS )
) ss
County of Cook )
On the _________ day of _________, 1998, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he is _______________________ of The First National Bank of
Chicago, one of the corporations described in and which executed the foregoing
instrument; that it was so affixed by authority of the Board of Directors of
said corporation, and that she/he signed her/his name thereto by like authority
of the Board of Directors of said corporation.
--------------------------------------------
Notary Public
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EXHIBIT 12
FRED MEYER, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Fiscal Year Ending 40 Weeks Ended
---------------------------------------------------- -----------------------
November 9, November 8,
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ----
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Income before tax & $ 96,170 $120,502 $ 11,561 $ 48,849 $ 94,428 $ 49,853 $ 84,846
extraordinary loss
Add fixed charges 20,875 20,423 28,914 43,743 42,998 33,851 47,822
-------- -------- -------- -------- -------- -------- --------
Earnings for computation 117,045 140,925 40,475 92,592 137,426 83,704 132,668
purposes
Fixed charges (interest on
debt, expensed or 21,289 22,112 31,434 47,372 43,119 33,972 48,152
capitalized)
-------- -------- -------- -------- -------- -------- --------
Ratio of earnings to fixed
charges 5.50 6.37 1.29 1.95 3.19 2.46 2.76
======== ======== ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Fred Meyer, Inc. on Form S-3 of our report dated March 12, 1997, appearing in
the Annual Report on Form 10-K of Fred Meyer, Inc. for the fiscal year ended
February 1, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Portland, Oregon
January 16, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in the Prospectus, constituting part of this Registration Statement
on Form S-3, of our report dated March 21, 1997 (except with respect to the
matter discussed in Note 14, as to which the date is April 17, 1997) included in
the Food 4 Less Holdings, Inc. Form 10-K for the year ended February 2, 1997 and
to all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Los Angeles, California
January 19, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Fred Meyer, Inc. on Form S-3 of our report dated March 21, 1997 appearing in
the Annual Report on Form 10-K/A, dated July 23, 1997 of Quality Food Centers,
Inc. ("QFC"), for the year ended December 28, 1996 and to the references to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Seattle, Washington
January 16, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
ROBERT G. MILLER
---------------------------------------
Robert G. Miller
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
RONALD W. BURKLE
---------------------------------------
Ronald W. Burkle
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
VIVIAN A. BULL
---------------------------------------
Vivian A. Bull
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
JAMES J. CURRAN
---------------------------------------
James J. Curran
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
A.M. GLEASON
---------------------------------------
A.M. Gleason
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
BRUCE KARATZ
---------------------------------------
Bruce Karatz
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
JOHN G. KING
---------------------------------------
John G. King
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
ROGER S. MEIER
---------------------------------------
Roger S. Meier
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
STEVEN R. ROGEL
---------------------------------------
Steven R. Rogel
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
FRED L. SMITH
---------------------------------------
Fred L. Smith
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints Robert G. Miller, Kenneth Thrasher, David R. Jessick, and Roger A.
Cooke, and each of them, his true and lawful attorneys and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign one or more Form S-3 Registration
Statements under the Securities Act of 1933, prepared in connection with the
issuance and/or sale of shares of Debt Securities of Fred Meyer, Inc., and any
and all amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission; granting unto said
attorneys and agents, and each of them, full power and authority to do any and
all acts and things necessary or advisable to be done, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys and agents or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: December 18, 1997.
JEFF P. SMITH
---------------------------------------
Jeff P. Smith
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
FRED MEYER, INC.
(Exact name of obligor as specified in its charter)
Delaware 91-1826443
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
3800 SE 22nd Avenue
Portland, Oregon 97202
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
2
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 8th day of
January, 1998.
The First National Bank of Chicago,
Trustee
By /s/ RICHARD D. MANELLA
Richard D. Manella
Vice President and Senior Counsel
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica Inc. filed with the Securities and Exchange Commission on October 25,
1996 (Registration No. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 8, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Fred Meyer, Inc.
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ RICHARD D. MANELLA
Richard D. Manella
Vice President and Senior Counsel
4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).............. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)....................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................. RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses.......................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve.............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)............................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)................................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 277,105 10.
11. Other assets (from Schedule RC-F)..................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).............................. 2170 56,108,875 12.
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
Dollar Amounts in
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)........................................ RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)......................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing............................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing............................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing............................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)............................ RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less..................... RCFD 2332 2,608,057 16.a
b. With a remaining maturity of than one year through three years.... A547 379,893 16.b
. c. With a remaining maturity of more than three years................ A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)................................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20)........................ RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... RCFD 3838 0 23
24. Common stock.......................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).............. RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves............................. RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments................... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..................... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)......... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external Number
auditors as of any date during 1996.................................. RCFD 6724............. N/A M.1
------
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
6
