<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 1994.
REGISTRATION NO. 33-70610
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
DAIRY MART CONVENIENCE STORES, INC.
AND OTHER REGISTRANTS
(SEE TABLE OF OTHER REGISTRANTS BELOW)
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2497894
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE VISION DRIVE
ENFIELD, CONNECTICUT 06082
(203) 741-4444
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF THE REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
---------------
FRANK COLACCINO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DAIRY MART CONVENIENCE STORES, INC.
ONE VISION DRIVE
ENFIELD, CT 06082
(203) 741-4444
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
STANFORD N. GOLDMAN, JR. WILLIAM F. SCHWITTER DORSEY & WHITNEY
SCHATZ & SCHATZ, RIBICOFF & KOTKIN
90 STATE HOUSE SQUARE 350 PARK AVENUE
HARTFORD, CT 06103 NEW YORK, NY 10022
(203) 522-3234 (212) 415-9200
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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, check the following box. [_]
If the Registrants elect to deliver their latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item
11(a)(1) of this Form, check the following box. [_]
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
OTHER REGISTRANTS
<TABLE>
<CAPTION>
EXACT NAME OF STATE OR I.R.S.
REGISTRANT AS OTHER JURISDICTION EMPLOYER
SPECIFIED IN ITS OF INCORPORATION IDENTIFICATION
CHARTER OR ORGANIZATION NUMBER
---------------- ------------------ --------------
<S> <C> <C>
Dairy Mart East, Inc. Rhode Island 04-2741427
Dairy Mart Farms, Inc. Connecticut 06-0937127
Dairy Mart, Inc. Massachusetts 04-2235065
CONNA Corporation Kentucky 61-0960167
The Lawson Company Delaware 36-2998715
D.M. Insurance Limited Bermuda 98-0122232
LMC, Inc. Ohio 34-1225236
SNG of Southern Minnesota, Inc. Ohio 31-0744171
The Lawson Milk Company Ohio 34-0352180
Golden Stores, Inc. Ohio 34-1256236
Lakeside Wholesale, Inc. Ohio 34-1338109
Quik Shops, Inc. Ohio 34-1126799
Open Pantry Properties, Inc. Ohio 34-0898645
Remote Services, Inc. Kentucky 61-0667027
Convenient Industries of America, Inc. Kentucky 61-0567766
Oscar Ewing, Inc. Kentucky 61-0187240
Convenient Gasoline, Inc. New York 61-0667027
Jackson County Grocery Co., Inc. Indiana 35-1460917
Greenwell Grocery Co., Inc. Indiana 61-0999843
CIA Food Marts, Inc. New York 62-0941344
Food Merchandisers, Incorporated North Carolina 56-0889198
Dairy Mart Convenience Stores of Ohio, Inc. Ohio 34-1606435
</TABLE>
<PAGE>
The purpose of this Amendment No. 2 to the Registration Statement on Form S-2
(File No. 33-70610) is to file as Exhibit 4.1 the form of indenture and as
Exhibit 4.2 the form of Senior Subordinated Note and Form of Notation of
Guarantee which are included as exhibits to the indenture.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18TH DAY OF
FEBRUARY, 1994.
Dairy Mart Convenience Stores, Inc.
/s/ Frank Colaccino
By __________________________________
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino
- ------------------------------------ President, Chief Executive February 18, 1994
Frank Colaccino Officer and Director
(Principal Executive
Officer)
/s/ Gregory G. Landry
- ------------------------------------ Executive Vice President, February 18, 1994
Gregory G. Landry Chief Financial Officer,
and Director (Principal
Financial and Accounting
Officer)
/s/ Frank W. Barrett
- ------------------------------------ Director February 18, 1994
Frank W. Barrett
/s/ Mitchell J. Kupperman
- ------------------------------------ Director February 18, 1994
Mitchell J. Kupperman
- ------------------------------------ Director February 18, 1994
Theodore W. Leed
- ------------------------------------ Director February 18, 1994
Charles Nirenberg
/s/ Robert B. Stein, Jr.
- ------------------------------------ Director February 18, 1994
Robert B. Stein, Jr.
</TABLE>
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Dairy Mart East, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Dairy Mart Farms, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Dairy Mart, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
CONNA Corporation
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
The Lawson Company
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-8
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
D.M. Insurance Limited
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-9
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
LMC, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-10
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
SNG of Southern Minnesota, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-11
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
The Lawson Milk Company
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-12
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Golden Stores, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-13
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Lakeside Wholesale, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-14
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Quik Shops, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-15
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Open Pantry Properties, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-16
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Remote Services, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-17
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Convenient Industries of America, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-18
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Oscar Ewing, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-19
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Convenient Gasoline, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-20
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Jackson County Grocery Co., Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-21
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Greenwell Grocery Co., Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-22
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
CIA Food Marts, Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-23
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Food Merchandisers, Incorporated
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-24
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENFIELD, STATE OF CONNECTICUT, ON THIS 18th DAY OF
FEBRUARY, 1994
Dairy Mart Convenience Stores of Ohio,
Inc.
By /s/ Frank Colaccino
----------------------------------
Frank Colaccino
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank Colaccino President, Chief Executive Officer February 18, 1994
- ------------------------------------ and Director (Principal
Frank Colaccino Executive Officer)
/s/ Gregory G. Landry Executive Vice President, Chief February 18, 1994
- ------------------------------------ Financial Officer, and Director
Gregory G. Landry (Principal Financial and
Accounting Officer)
/s/ Mitchell J. Kupperman Director February 18, 1994
- ------------------------------------
Mitchell J. Kupperman
/s/ Robert B. Stein, Jr. Director February 18, 1994
- ------------------------------------
Robert B. Stein, Jr.
</TABLE>
II-25
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF DOCUMENT NUMBER
------- ----------------------- ----------
<C> <S> <C>
1 Form of Underwriting Agreement among the Company, the
Guarantors, and the Underwriter.
4.1 Form of Indenture dated , 1994, among the Com-
pany, the Guarantors and Society National Bank, as
trustee, relating to the % Senior Subordinated
Notes due 2004 being registered.
4.2 Form of % Senior Subordinated Note due 2004 and
form of Notation of Guarantee (included in Exhibit
4.1).
*5 Opinion of Schatz & Schatz, Ribicoff & Kotkin as to the
validity of the Notes and Guarantees being registered.
10.1 Credit Agreement dated as of January 9, 1991, among the
Company, Manufacturers Hanover Trust Company (prede-
cessor to Chemical Bank) and other financial institu-
tions ("Existing Credit Agreement") was filed as Ex-
hibit 10.5 to the Company's Form 10-K for the fiscal
year ended February 2, 1991, and is incorporated
herein by reference. The First Amendment dated as of
May 10, 1991 and the Second Amendment and Waiver dated
as of February 6, 1992, both of which amended the Ex-
isting Credit Agreement, were filed as Exhibit 10.1 to
the Company's Form 10-K for the fiscal year ended Feb-
ruary 1, 1992, and are incorporated herein by refer-
ence. The Third Amendment dated as of December 11,
1992 and the Fourth Amendment dated as of April 29,
1993, both of which further amended the Existing
Credit Agreement, were filed as Exhibit 10.1 to the
Company's Form 10-K for the fiscal year ended January
30, 1993, and are incorporated herein by reference.
The Fifth Amendment dated as of January 31, 1994, fur-
ther amending the Existing Credit Agreement, is in-
cluded as Exhibit 10.1 hereto.
*10.2 Credit Agreement among the Company, Fleet Bank, Na-
tional Association and Society National Bank dated as
of , 1994.
10.3 Amended and Restated 1985 Incentive Stock Option Plan.
Form of Incentive Stock Option Agreement was filed as
part of Exhibit 10.4 to the Company's annual report on
Form 10-K for the fiscal year ended January 30, 1988,
and is incorporated herein by reference.
10.4 1983 Incentive Stock Option Plan and form of Incentive
Stock Option Agreement thereunder were filed as Exhib-
its 4.1 and 4.2, respectively, to the Company's Regis-
tration Statement on Form S-8 (File No. 33-8209) filed
on August 26, 1986, and are incorporated herein by
reference.
10.5 1990 Stock Option Plan and forms of qualified and non-
qualified stock option agreements thereunder were
filed as Exhibit 10.4 to the Company's Form 10-K for
the fiscal year ended February 2, 1991, and are incor-
porated herein by reference.
10.6 Employment Agreement between the Company and Charles
Nirenberg, dated December 5, 1991, was filed as Ex-
hibit 10.5 to the Company's Form 10-K for the fiscal
year ended February 1, 1992, and is incorporated
herein by reference.
12 Statement concerning computation of ratios of earnings
to fixed charges.
23.1 Consent of Arthur Andersen & Co.
*23.2 Consent of Schatz & Schatz, Ribicoff & Kotkin (included
in Exhibit 5).
25 Statement of eligibility and qualification of Society
National Bank as Trustee on
Form T-1.
</TABLE>
- --------
* To be filed by amendment
E-1
<PAGE>
EXHIBIT 4.1
================================================================================
INDENTURE
Dated as of ____________, 1994
by and among
DAIRY MART CONVENIENCE STORES, INC.
AND
ITS SUBSIDIARIES EXECUTING A SIGNATURE PAGE HERETO,
as Guarantors
AND
SOCIETY NATIONAL BANK,
as Trustee
------------------------------------
$75,000,000
__% Senior Subordinated Notes due 2004
================================================================================
<PAGE>
CROSS REFERENCE TABLE /1/
<TABLE>
<CAPTION>
TIA Indenture
Section Section
<S> <C>
310 (a) (1)................................................... 7.10
(a) (2)................................................... 7.10
(a) (3)................................................... N.A./2/
(a) (4)................................................... N.A.
(b)....................................................... 7.10
(c)....................................................... N.A.
311 (a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312 (a)....................................................... 2.05
(b)....................................................... 12.03
(c)....................................................... 12.03
313 (a)....................................................... 7.06
(b) (1)................................................... N.A.
(b) (2)................................................... 7.06
(c)....................................................... 12.02
(d)....................................................... 7.06
314 (a)....................................................... 4.02
(c) (1)................................................... 12.04
(c) (2)................................................... 12.04
(c) (3)................................................... N.A.
(e)....................................................... 12.05
(f)....................................................... 4.03
315 (a)....................................................... 7.01
(b)....................................................... 7.05
(c)....................................................... 7.01
(e)....................................................... 6.11
316 (a) (last sentence)....................................... 2.08
(a) (1) (A)............................................... 6.05
(a) (1) (B)............................................... 6.04
(a) (2)................................................... N.A.
(b)....................................................... 6.07
317 (a) (1)................................................... 6.08
(a) (2)................................................... 6.09
(b)....................................................... 2.04
318 (a)....................................................... 12.01
- ------------------------------
</TABLE>
/1/. Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
/2/. N.A. means Not Applicable.
i
<PAGE>
TABLE OF CONTENTS/3/
-
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Other Definitions......................................... 17
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......... 17
SECTION 1.04. Rules of Construction..................................... 18
SECTION 1.05. Acts of Holders........................................... 18
<CAPTION>
ARTICLE 2
THE SECURITIES
<S> <C> <C>
SECTION 2.01. Form and Dating........................................... 19
SECTION 2.02. Execution and Authentication.............................. 20
SECTION 2.03. Registrar and Paying Agent................................ 21
SECTION 2.04. Paying Agent to Hold Money in Trust....................... 21
SECTION 2.05. Securityholder Lists...................................... 22
SECTION 2.06. Transfer and Exchange..................................... 22
SECTION 2.07. Replacement Securities.................................... 23
SECTION 2.08. Outstanding Securities; Determinations of Holders' Action. 23
SECTION 2.09. Temporary Securities...................................... 24
SECTION 2.10. Cancellation.............................................. 25
SECTION 2.11. CUSIP Numbers............................................. 25
SECTION 2.12. Defaulted Interest........................................ 25
<CAPTION>
ARTICLE 3
REDEMPTION AND REPURCHASE
<S> <C> <C>
SECTION 3.01. Right to Redeem; Notices to Trustee....................... 26
SECTION 3.02. Public Equity Offering Redemption......................... 26
SECTION 3.03. Selection of Securities to be Redeemed.................... 26
SECTION 3.04. Notice of Redemption...................................... 27
SECTION 3.05. Effect of Notice of Redemption............................ 27
SECTION 3.06. Deposit of Redemption Price............................... 28
SECTION 3.07. Securities Redeemed in Part............................... 28
SECTION 3.08. Offer to Repurchase Upon Change of Control................ 28
SECTION 3.09. Offer to Repurchase With Cash
Proceeds from Certain Asset Dispositions.................. 29
- ------------------
/3/ This Table of Contents shall not, for any purpose, be deemed to be part of
- this Indenture.
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE 4
COVENANTS
Page
----
<S> <C> <C>
SECTION 4.01. Payment of Securities.................................... 32
SECTION 4.02. SEC Reports.............................................. 32
SECTION 4.03. Compliance Certificates.................................. 32
SECTION 4.04. Further Instruments and Acts............................. 33
SECTION 4.05. Maintenance of Office or Agency.......................... 33
SECTION 4.06. Limitation on Additional Indebtedness
and New Operating Leases................................. 34
SECTION 4.07. Limitation on Restricted Payments........................ 34
SECTION 4.08. Limitation on Investments................................ 37
SECTION 4.09. Limitation on Liens...................................... 36
SECTION 4.10. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries...................... 36
SECTION 4.11. Limitation on Sale-Leaseback Transactions................ 37
SECTION 4.12. Limitation on Transactions with Affiliates............... 37
SECTION 4.13. Limitation on Other Senior Subordinated Indebtedness..... 38
SECTION 4.14. Additional Guarantors.................................... 38
SECTION 4.15. Use of Proceeds.......................................... 38
SECTION 4.16. Limitation on Sales of Assets............................ 39
SECTION 4.17. Payments of Taxes and Other Claims....................... 40
SECTION 4.18. Corporate Existence...................................... 41
SECTION 4.19. Maintenance of Properties and Insurance.................. 41
SECTION 4.20. Conflicting Agreements................................... 42
SECTION 4.21. Investment Company Act................................... 42
SECTION 4.22. Payments for Consents.................................... 42
SECTION 4.23. Covenant to Comply with Securities Laws
Upon Purchase of Securities.............................. 42
<CAPTION>
ARTICLE 5
SUCCESSOR CORPORATION
<S> <C> <C>
SECTION 5.01. When the Company or any Guarantor May Merge, Etc........ 42
<CAPTION>
ARTICLE 6
DEFAULTS AND REMEDIES
<S> <C> <C>
SECTION 6.01. Events of Default........................................ 44
SECTION 6.02. Acceleration............................................. 46
SECTION 6.03. Other Remedies........................................... 47
SECTION 6.04. Waiver of Past Defaults.................................. 47
</TABLE>
iii
<PAGE>
<TABLE>
Page
----
<S> <C> <C>
SECTION 6.05. Control by Majority...................................... 47
SECTION 6.06. Limitation on Suits...................................... 47
SECTION 6.07. Rights of Holders to Receive Payment..................... 48
SECTION 6.08. Collection Suit by Trustee............................... 48
SECTION 6.09. Trustee May File Proofs of Claim......................... 48
SECTION 6.10. Priorities............................................... 49
SECTION 6.11. Undertaking for Costs.................................... 49
SECTION 6.12. Waiver of Stay, Extension or Usury Laws.................. 50
<CAPTION>
ARTICLE 7
TRUSTEE
<S> <C> <C>
SECTION 7.01. Duties of Trustee........................................ 50
SECTION 7.02. Rights of Trustee........................................ 51
SECTION 7.03. Individual Rights of Trustee............................. 52
SECTION 7.04. Trustee's Disclaimer..................................... 52
SECTION 7.05. Notice of Defaults....................................... 52
SECTION 7.06. Reports by Trustee to Holders............................ 52
SECTION 7.07. Compensation and Indemnity............................... 53
SECTION 7.08. Replacement of Trustee................................... 53
SECTION 7.09. Successor Trustee by Merger.............................. 54
SECTION 7.10. Eligibility; Disqualification............................ 55
SECTION 7.11. Preferential Collection of Claims Against the Company.... 55
<CAPTION>
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS;
UNCLAIMED MONEYS
<S> <C> <C>
SECTION 8.01. Satisfaction and Discharge of Indenture.................. 55
SECTION 8.02. Application by Trustee of Funds Deposited
for Payment of Securities................................ 59
SECTION 8.03. Repayment of Moneys Held by Paying Agent................. 59
SECTION 8.04 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Three Years................... 59
<CAPTION>
ARTICLE 9
AMENDMENTS
<S> <C> <C>
SECTION 9.01. Without Consent of Holders............................... 60
SECTION 9.02. With Consent of Holders.................................. 60
</TABLE>
iv
<PAGE>
<TABLE>
Page
----
<S> <C> <C>
SECTION 9.03. Compliance with Trust Indenture Act...................... 61
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions... 62
SECTION 9.05. Notation on or Exchange of Securities.................... 62
SECTION 9.06. Trustee to Sign Supplemental Indentures.................. 62
SECTION 9.07. Effect of Supplemental Indentures........................ 63
<CAPTION>
ARTICLE 10
SUBORDINATION
<S> <C> <C>
SECTION 10.01. Securities Subordinated to Senior Indebtedness........... 63
SECTION 10.02. Priority and Payment Over of Proceeds in
Certain Events........................................... 63
SECTION 10.03. Payments to Be Made Prior to Dissolution................. 65
SECTION 10.04. Rights of Holders of Senior Indebtedness Not
to Be Impaired........................................... 66
SECTION 10.05. Authorization to Trustee to Take Action to
Effectuate Subordination................................. 66
SECTION 10.06. Subrogation.............................................. 66
SECTION 10.07. Obligations of Company Unconditional..................... 67
SECTION 10.8. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.......................... 67
SECTION 10.09. Right of Trustee to Hold Senior Indebtedness............. 68
<CAPTION>
ARTICLE 11
GUARANTEE OF SECURITIES
<S> <C> <C>
SECTION 11.01. Guarantee................................................ 68
SECTION 11.02. Agreement to Subordinate................................. 70
SECTION 11.03. Release of Guarantor..................................... 71
SECTION 11.04. Guarantor May Consolidate, etc., on Certain Terms........ 71
SECTION 11.05. Limitation on Guarantee.................................. 72
SECTION 11.06. Execution and Delivery of Guarantees..................... 72
SECTION 11.07. Successors............................................... 73
<CAPTION>
ARTICLE 12
MISCELLANEOUS
<S> <C> <C>
SECTION 12.01. Trust Indenture Act Controls............................. 73
SECTION 12.02. Notices.................................................. 73
SECTION 12.03. Communications by Holders with Other Holders............. 74
</TABLE>
v
<PAGE>
<TABLE>
Page
----
<S> <C> <C>
SECTION 12.04. Certificate and Opinion as to Conditions Precedent....... 74
SECTION 12.05. Statements Required in Certificate or Opinions........... 75
SECTION 12.06. Severability Clause...................................... 75
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar............. 75
SECTION 12.08. Legal Holidays........................................... 75
SECTION 12.09. GOVERNING LAW............................................ 76
SECTION 12.10. No Recourse Against Others............................... 76
SECTION 12.11. Successors............................................... 76
SECTION 12.12. Multiple of Originals.................................... 76
SECTION 12.13. No Adverse Interpretation of Other Agreements............ 76
SECTION 12.14. Table of Contents, Headings, etc......................... 76
SECTION 12.15. Benefits of Indenture.................................... 76
SIGNATURES ......................................................... 78
EXHIBIT I - FORM OF SECURITY
EXHIBIT 2 - FORM OF NOTATION OF GUARANTEE ENDORSED ON
SECURITY
</TABLE>
vi
<PAGE>
INDENTURE, dated as of ___________, 1994, by and among DAIRY MART
CONVENIENCE STORES, INC., a Delaware corporation (the "Company"), each of the
subsidiaries of the Company executing a signature page hereto, as Guarantors
(as hereinafter defined), and SOCIETY NATIONAL BANK, as trustee (the
"Trustee").
The Company has authorized the issuance of the Securities (as hereinafter
defined), and to provide therefor, the Company and each of the Guarantors have
duly authorized the execution and delivery of this Indenture. All things
necessary to make the Securities, and each of the Guarantees (as hereinafter
defined), when duly issued and executed by the Company and each Guarantor and
authenticated and delivered hereunder, the valid obligations of the Company and
each Guarantor, and to make this Indenture a valid and binding agreement of
the Company and each Guarantor, in accordance with their respective terms,
have been done.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's ______% Senior
Subordinated Notes due 2004 (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
-----------
"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person becomes a Subsidiary (or such Person is merged into the Company or a
Subsidiary) or assumed in connection with the acquisition of properties or
assets from any such Person and not incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary or such acquisition.
"Acquired Operating Lease" means any Operating Lease of a Person existing
at the time such Person becomes a Subsidiary (or such Person is merged into the
Company or a Subsidiary) or assumed in connection with the acquisition of
properties or assets from any such Person after the Issue Date and not entered
into in connection with, or in contemplation of, such Person becoming a
Subsidiary or in contemplation of such acquisition, and includes any
replacements or renewals of any such Operating Lease.
"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 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. A
specified Person beneficially owning 30% or more of the voting power of the
Voting Stock of a corporation will be
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presumed to control such corporation unless another Person beneficially owns
more Voting Stock than such specified Person beneficially owns and such other
Person has actual control. Notwithstanding the foregoing, the term Affiliate
shall not include any Wholly Owned Subsidiary which is a Guarantor but shall
include the Non-Recourse Subsidiary.
"Asset Disposition" means any sale, lease, sublease, transfer, issuance or
other disposition (or series of related sales, leases, subleases, transfers,
issuances or dispositions) of shares of Capital Stock of the Company, any
Subsidiary or the Non-Recourse Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the purposes of this
definition as a "disposition"), by the Company, any Subsidiary or the Non-
Recourse Subsidiary, including any disposition by means of a merger,
consolidation, or similar transaction (other than (i) a disposition of inventory
at not less than fair market value in the ordinary course of business, (ii) a
disposition of obsolete assets in the ordinary course of business, (iii) a sale
or issuance of Capital Stock of the Company which is not Exchangeable Stock,
(iv) sales of individual assets in the ordinary course of business having a fair
market value of less than, and for consideration less than, $5,000, (v) any
disposition of assets of the Non-Recourse Subsidiary not constituting, together
with any related dispositions by the Non-Recourse Subsidiary, a sale of all or
substantially all of the assets of the Non-Recourse Subsidiary, and (vi) any
disposition to a Wholly Owned Subsidiary which is a Guarantor).
"Attributable Indebtedness" in respect of a Sale-Leaseback Transaction
means, as at the time of the Sale-Leaseback Transaction, the greater of (i) the
fair value of the property subject to such arrangement (as determined in good
faith by the Board of Directors) or (ii) the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such arrangement (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
the numbers of years from the date of determination to the dates of each
successive scheduled principal payment of such Indebtedness multiplied by the
amount of such principal payment by (ii) the sum of all such principal payments.
"beneficial owner" has the meaning ascribed thereto in Rules 13d-3 and 13d-
5 promulgated by the Commission under the Exchange Act, except that a person
shall be deemed to be the beneficial owner of all shares that such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time; and the terms "beneficial ownership" and
"beneficially owns" have meanings correlative to the foregoing.
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"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which the principal office of the Trustee or banking institutions in New York
are required to close.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) corporate stock, including any Preferred Stock.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Section 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders or any Person or
Persons controlled by one or more Permitted Holders, is or becomes the
"beneficial owner", directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by the Directors then still in office
who either were Directors at the beginning of such period or whose election or
nomination for Director was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office;
(iii) the direct or indirect, sale, lease, exchange or other transfer of all or
substantially all of the assets of the Company to any "person" (as such term is
used in Section 13(d) or 14(d) of the Exchange Act), provided that the foregoing
shall not apply to the granting of Liens on such assets to the extent permitted
by this Indenture; (iv) the Permitted Holders cease to control at least 10% of
the total voting power of the Voting Stock of the Company; (v) any acceleration
of any Indebtedness under the New Credit Agreement occurs as a result of a
change in the beneficial ownership of the Capital Stock of the Company; or (vi)
the Company consolidates with or merges into another corporation or any Person
consolidates with or merges into the Company, in either event pursuant to a
transaction in which either (A) the outstanding Voting Stock of the Company is
changed into or exchanged for cash, securities or other property (other than any
such transaction where the outstanding Voting Stock of the Company is changed
into or exchanged
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for Voting Stock of the surviving corporation which is neither Redeemable Stock
nor Exchangeable Stock) or (B) the holders of a majority of the voting power of
the Voting Stock of the Company immediately prior to such transaction own,
directly or indirectly, less than a majority of the voting power of the Voting
Stock of the surviving corporation immediately after such transaction.
"Code" means the Internal Revenue Code of 1986, as from time to time
amended.
"Company Senior Indebtedness" means all Indebtedness of the Company under:
(i) the New Credit Agreement as in effect on the date hereof; and (ii) all
additional Indebtedness that is permitted under the Indenture that is not by its
terms subordinated to or pari passu with the Securities (it being understood
that Indebtedness permitted under the Indenture that is not by its terms
subordinated to or pari passu with the Securities shall not in any event
constitute Company Senior Indebtedness if such Indebtedness is subordinated by
its terms to any other Indebtedness that constitutes Company Senior
Indebtedness). Notwithstanding anything to the contrary in the foregoing,
Company Senior Indebtedness shall not include (w) the Company's 14.25%
Subordinated Debentures Due 2000, (x) any liability of the Company, any
Subsidiary or the Non-Recourse Subsidiary for state, local or other taxes, (y)
any Indebtedness between or among the Company, any Subsidiary or the Non-
Recourse Subsidiary, or (z) any Indebtedness of the Company, any Subsidiary or
the Non-Recourse Subsidiary incurred for the purchase of goods or materials or
for services obtained in the ordinary course of business (other than
Indebtedness incurred under any revolving credit facility under the New Credit
Agreement for such purpose).
"Consolidated Fixed Charge Coverage Ratio" of the Company for any period
means the ratio, on a pro forma basis, of (i) the sum of Consolidated Net
Income, Consolidated Fixed Charges and Consolidated Tax Expense, plus
depreciation, and without duplication, all amortization, in each case, for such
period, of the Company and its subsidiaries (other than the Non-Recourse
Subsidiary) on a consolidated basis, as determined in accordance with GAAP, to
(ii) Consolidated Fixed Charges; provided, that in calculating Consolidated
Fixed Charges on a pro forma basis, any Indebtedness bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation has
been the applicable rate for the entire period and the aggregate amount of
available commitments under any revolving credit facility (excluding any letter
of credit facility) of the Company or any Subsidiary will be deemed to be
outstanding.
"Consolidated Fixed Charges" of the Company means, for any period, the sum
of: (i) the aggregate amount of interest which, in conformity with GAAP, would
be set opposite the caption "interest expense" or any like caption on an income
statement for the Company and its subsidiaries (other than the Non-
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Recourse Subsidiary) on a consolidated basis (including, without limitation,
imputed interest included on Capital Lease Obligations, all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, the net costs associated with any Interest
Rate Agreement, foreign currency exchange agreement, option or futures
contract or other similar agreement or arrangement relating to interest rates
or foreign exchange rates); (ii) an amount equal to one-third of Consolidated
Operating Lease Payments; and (iii) dividends on Preferred Stock of the
Company or a Subsidiary held by Persons other than the Company or a Wholly
Owned Subsidiary which is a Guarantor. For purposes of clause (iii) of the
preceding sentence, dividends shall be deemed to be an amount equal to the
actual dividends paid divided by one minus the applicable combined federal,
state and local income tax rate of the Company (expressed as a decimal), on a
consolidated basis, for the fiscal year immediately preceding the date of the
transaction giving rise to the need to calculate Consolidated Fixed Charges.
"Consolidated Net Income" means, for the Company for any period, the net
income of the Company and its subsidiaries (other than, except as expressly
provided below, the Non-Recourse Subsidiary) determined on a consolidated basis
in accordance with GAAP; however, there will not be included in such
Consolidated Net Income: (i) subject to clause (iv) below, any net income of
the Non-Recourse Subsidiary or any Person which is not a Subsidiary, except that
(A) the Company's equity in the net income of the Non-Recourse Subsidiary or any
such Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by the Non-Recourse
Subsidiary (including as a result of sales by the Non-Recourse Subsidiary of
Capital Stock pledged or delivered by borrowers who are franchisees of
convenience stores of the Company or any Subsidiary) or any such Person during
such period to the Company or a Guarantor as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Guarantor, to the
limitations contained in clause (iii) below) and (B) the Company's equity in a
net loss of the Non-Recourse Subsidiary or any such Person for such period shall
be included in determining such Consolidated Net Income (ii) any net income (but
not net loss) of any Person acquired by the Company or a Subsidiary in a pooling
of interests transaction for any period prior to the date of such acquisition;
(iii) any net income of any Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Subsidiary, directly or indirectly, to the Company,
except that (A) the Company's equity in the net income of any such Subsidiary
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Subsidiary during such
period to the Company or a Guarantor as a dividend or other distribution
(subject, in the case of a dividend or other distribution to another Subsidiary,
to the limitation contained in this clause) and (B) the Company's equity in a
net loss of any such Subsidiary for such period shall be included in determining
such Consolidated Net Income; (iv) any gain (but not loss) realized upon the
sale or other disposition of any property, plant or
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equipment of the Company or its consolidated subsidiaries (including the Non-
Recourse Subsidiary and including pursuant to any Sale-Leaseback Transaction)
which is not sold or otherwise disposed of in the ordinary course of business
and any gain (but not loss) realized upon the sale or other disposition of any
Capital Stock of any Person (except for sales by the Non-Recourse Subsidiary of
Capital Stock pledged or delivered by borrowers who are franchisees of
convenience stores of the Company or any Subsidiary up to the aggregate amount
of cash actually distributed by the Non-Recourse Subsidiary during such period
to the Company or a Guarantor as a dividend or other distribution); (v) any
gains or losses from currency exchange transactions not in the ordinary course
of business consistent with past practice; (vi) any gains (but not losses)
attributable to any extraordinary items; (vii) all extraordinary expenses,
including as a result of the write-off of deferred loan costs in connection with
the application of the proceeds from the sale of the Securities; (viii) the
amount of any premium payable on the Company's 14.25% Subordinated Debentures
Due 2000 as a result of prepayment of such Debentures with the proceeds of the
Securities in accordance with the Prospectus; and (ix) the cumulative effect of
a change in accounting principles.
"Consolidated Net Worth" of any Person means the total of the amounts shown
on the balance sheet of such Person and its consolidated subsidiaries
(including, with respect to the Company, the Non-Recourse Subsidiary),
determined on a consolidated basis in accordance with GAAP, as of the end of the
most recent fiscal quarter of such Person ending prior to the taking of any
action for the purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of such Person plus (ii) paid-
in capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated deficit, (B) any
amounts attributable to Redeemable Stock (only to the extent such amounts shall
be due prior to the final maturity of the Securities) and (C) any amounts
attributable to Exchangeable Stock.
"Consolidated Operating Lease Payments" means for any Reference Period: (i)
the aggregate amount of all rents paid or payable (net of sublease income) by
the Company or any of its consolidated subsidiaries (other than the Non-Recourse
Subsidiary) under all Operating Leases of the Company or any of its consolidated
subsidiaries, all as determined in accordance with GAAP; (ii) less $2.5 million.
"Consolidated Tax Expense" means, for the Company for any period, the
provision (benefit) for taxes based on income and profits (or losses) of the
Company and its subsidiaries (other than the Non-Recourse Subsidiary) on a
consolidated basis to the extent such income or profits (or losses) were
included in computing Consolidated Net Income of the Company for such period.
"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" means any Capital Stock which is exchangeable or
convertible into another security (other than Capital Stock of the Company which
is neither Exchangeable Stock nor Redeemable Stock).
"Existing Indebtedness" means Indebtedness of the Company and each
Subsidiary in existence on the Issue Date.
"FINOP" means Financial Opportunities, Inc., a Kentucky corporation,
licensed as an SBIC by the SBA, all of the Capital Stock of which is owned by
the Company or a Wholly Owned Subsidiary.
"Fixed Assets" means assets of the Company, a Subsidiary or a Non-Recourse
Subsidiary which are "fixed assets" as defined in accordance with GAAP.
"Franchise Agreements" means franchise agreements entered into by the
Company or any Subsidiary in the ordinary course of business in connection with
the franchising of the Company's convenience retail stores.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are applicable as of the date of
determination; provided, however, that these definitions and all ratios and
calculations contained in the covenants set forth in Sections 4.06, 4.07, 4.11
and 4.16 shall be determined in accordance with GAAP as in effect and applied by
the Company on the Issue Date, consistently applied.
"Guarantee" means the guarantee by a Guarantor of the Company's obligations
under the Securities.
"Guarantor" means each Subsidiary executing a signature page hereto on the
Issue date and any Person who becomes a Guarantor by execution of a supplement
to this Indenture pursuant to Section 4.14 hereof, and any of their respective
successors or assigns.
"Guarantor Subordinated Indebtedness" means, with respect to a specified
Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue
Date or thereafter Incurred) which is subordinate or junior in right of payment
to the Guarantee of such Guarantor.
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"Holder" or "Securityholder" means a Person in whose name a Security is
registered on the Registrar's books.
"Incurrence" means the incurrence, creation, assumption, issuance,
guarantee of the payment of, or in any other manner becoming liable with respect
to, the payment of, any Indebtedness. "Incur" and "Incurred" shall have a
comparable meaning.
"Indebtedness" means, with respect to any Person, without duplication, (i)
the principal of and premium (if any) in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by Securities,
debentures, bonds or other similar instruments (including purchase money
obligations) for payment of which such Person is responsible or liable; (ii) all
Capital Lease Obligations of such Person; (iii) all obligations of such Person
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such Person and all obligations of such Person under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
Securities purchase facility or similar credit transaction (other than
obligations with respect to letters of credit securing obligations (other than
obligations described in (i) through (iii) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third business day following receipt by such Person of a demand
for reimbursement following payment on the letter of credit); (v) all
obligations of the type referred to in clauses (i) through (iv) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable as obligor, guarantor or otherwise; (vi)
all obligations of the type referred to in clauses (i) through (v) of other
Persons secured by any Lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), the amount of such obligation
being deemed to be the lesser of the value of such property or assets or the
amount of the obligation so secured; (vii) Redeemable Stock of such Person; and
(viii) with respect to the Company or any Subsidiary, Preferred Stock of any
Subsidiary (other than Preferred Stock held by the Company or any Wholly Owned
Subsidiary which is a Guarantor); provided, however, that Indebtedness will not
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include endorsements of negotiable instruments for collection in the ordinary
course of business.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
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"Interest Rate Agreement" means the obligation of any Person pursuant to
any interest rate swap agreement, interest rate collar agreement, currency
exchange agreement, or other similar agreement or arrangement entered into by
such Person in the ordinary course of business.
"Investment" in any Person means any loan or advance to, any acquisition of
Capital Stock of, equity interest in, obligation or other security of, or
capital contribution to or other investment in, such Person.
"Issue Date" means the date on which the Securities are originally issued.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give any security interest in and any filing or other agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Net Available Cash Proceeds" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a Security or installment receivable or otherwise, but
only as and when received, but excluding any other consideration received in the
form of assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash form)
therefrom, in each case net of all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Disposition, and in each case net of all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law, be repaid out of the proceeds from such Asset Disposition,
and net of all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition.
"Net Proceeds" means, with respect to a specified transaction, total cash
proceeds net of all customary legal expenses, commissions and other fees and
expenses incurred and all Federal, state, provincial, foreign and local taxes
required to be accrued as a liability under GAAP as a consequence of, and in
connection with, such transaction.
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"New Credit Agreement" means the Credit Agreement dated as of ,
1994, among the Company, Fleet Bank, National Association and Society National
Bank, as such agreement may be amended, supplemented or otherwise modified from
time to time and any agreement evidencing any refunding, replacement,
refinancing or renewal, in whole or in part, of the Indebtedness permitted to be
borrowed thereunder on the date of execution thereof. The term New Credit
Agreement shall include all agreements executed in connection therewith on the
date hereof, including, without limitation, any agreement executed by the
Guarantors to evidence any guarantee by the Guarantors of the Company's
obligations under the New Credit Agreement and shall also include any agreements
evidencing amendments, supplements or modifications of such agreements.
"New Operating Leases" means Operating Leases entered into by the Company
or any of its consolidated subsidiaries (other than the Non-Recourse Subsidiary)
following the Issue Date for the purpose of leasing real property, gasoline
equipment or other equipment in connection with the operation of retail
convenience stores not owned, operated or franchised by the Company or any of
its consolidated subsidiaries on or prior to the Issue Date; provided, however,
that the term New Operating Leases shall not be deemed to include Acquired
Operating Leases.
"Non-Convertible Capital Stock" means, with respect to any corporation, any
nonconvertible Capital Stock of such corporation and any Capital Stock of such
corporation convertible solely into nonconvertible common stock of such
corporation which is not Redeemable Stock or Exchangeable Stock; provided,
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however, that Non-Convertible Capital Stock does not include any Redeemable
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Stock or Exchangeable Stock.
"Non-Recourse Subsidiary" means FINOP, provided that:
(a) no portion of FINOP's Indebtedness or any of its other obligations
(contingent or otherwise), (i) is guaranteed by the Company or any
Subsidiary, (ii) is recourse to or obligates the Company or any
Subsidiary in any way or (iii) subjects any property or asset of the
Company or any Subsidiary, directly or indirectly, contingently or
otherwise, to satisfaction thereof;
(b) neither the Company nor any Subsidiary has any contract, agreement,
arrangement, understanding with FINOP or is subject to an obligation
of any kind, written or oral, other than on terms no less favorable
to the Company or such Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company;
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(c) neither the Company nor any Subsidiary has any obligation (i) to
subscribe for additional shares of Capital Stock or other equity
interests of FINOP or (ii) to maintain or preserve FINOP's financial
condition or to cause FINOP to achieve certain levels of operating
results;
(d) FINOP continues to be an SBIC, regulated and licensed as such by the
SBA, and performs no activities or engages in no business other than
as an SBIC;
(e) FINOP maintains a bank account or accounts separate from those of the
Company and each Subsidiary and does not otherwise commingle its
funds or any other properties or assets with those of the Company or
any Subsidiary;
(f) the Board of Directors of FINOP contains at least one independent
director who is not an officer, director, employee, shareholder
(other than a Shareholder owning less than 1% of the outstanding
Capital Stock of any class of the Company's or any Subsidiary's
Capital Stock) or Affiliate of the Company or any Subsidiary; and
(g) the sum of Indebtedness and aggregate liquidation preference of
Preferred Stock of FINOP does not exceed $20 million, unless at the
time of the Incurrence of additional Indebtedness or the issuance of
Preferred Stock by FINOP, the Consolidated Fixed Charge Coverage
Ratio for the Company is equal to or greater than 2.0 to 1.0.
At the time FINOP ceases to meet any of the requirements set forth above
for characterization as the Non-Recourse Subsidiary, FINOP shall be deemed to be
a Subsidiary for all purposes of the Indenture if, at such time, it is properly
characterized as such in accordance with the definition of "Subsidiary" set
forth below.
"Officer" means, with respect to any corporation, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Treasurer or the Secretary of such corporation.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 12.04 and 12.05 herein, signed in the name of
the Company, any Guarantor or other obligor on the Securities, as the case may
be, by any two of its Officers, and delivered to the Trustee.
"Operating Lease" shall mean, as applied to any Person, any lease with
respect to which such Person is the lessee (including, without limitation,
leases which may be terminated by the lessee at any time) of any property
(whether real, personal or
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mixed) which is not a lease which is required to be classified and accounted for
as a capital lease on the face of the balance sheet of such Person prepared in
accordance with GAAP.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 12.04 and 12.05 hereof, rendered by legal counsel who is
reasonably acceptable to the Trustee.
"Permitted Holders" means Frank Colaccino and his Related Parties, or in
the event of the death or mental or physical incapacity of Frank Colaccino, any
of Gregory Landry, Robert Stein or Mitchell Kupperman and their respective
Related Parties.
"Permitted Indebtedness" means (i) Indebtedness incurred by the Company
under the New Credit Agreement as in effect on the Issue Date, provided that
such amount shall be permanently reduced by (x) the amount of any revolving loan
commitment reductions from time to time effected under the New Credit Agreement,
and (y) the amount of any prepayments of such Indebtedness which is not
reborrowed and invested as described in the first proviso set forth in Section
4.16 hereof, and provided further that the aggregate amount of all Indebtedness
permitted to be outstanding thereunder at any one time shall not exceed $30.0
million and the aggregate amount of Indebtedness evidenced by all letters of
credit permitted to be outstanding thereunder (including the outstanding
principal amount of any loans advanced for drawings thereunder) at any one time
shall not exceed $15.0 million); (ii) guarantees by Subsidiaries of the
Company's Indebtedness referred to in clause (i) of this paragraph; (iii)
Existing Indebtedness and Indebtedness represented by the Securities; (iv)
Indebtedness issued to repay, refund or refinance Indebtedness of the Company or
any Subsidiary permitted under clauses (i), (ii) and (iii) of this paragraph
(such Indebtedness being referred to herein as "Refinancing Indebtedness"),
provided such Refinancing Indebtedness (a) does not exceed the principal or
accreted amount of, (b) ranks in right of payment to the Securities no more than
to the same extent as, (c) has an Average Life and Stated Maturity equal to, or
greater than, and (d) shall not provide for any mandatory redemption,
amortization or sinking fund requirements in an amount greater than or at a time
prior to the amounts and times specified with respect to, the Indebtedness so
repaid, refunded or refinanced; (v) intercompany Indebtedness permitted under
Section 4.07 hereof; (vi) Indebtedness under Interest Rate Agreements; (vii)
guarantees by the Company or any Wholly Owned Subsidiary which is a Guarantor of
loans (other than loans made by the Non-Recourse Subsidiary) in the ordinary
course of business to franchisees of the Company's or any Subsidiary's
convenience retail stores for the purpose of financing costs of equipment,
leasehold improvements and/or inventory for such stores pursuant to a Franchise
Agreement, provided that the aggregate liability in respect of all such
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<PAGE>
Indebtedness shall not exceed $5.0 million at any one time under this clause
(vii); (viii) Capitalized Lease Obligations of the Company or any Subsidiary for
the purpose of purchasing or financing personal computers, equipment, software,
supplies and/or other assets necessary for the operation of the Company's POS
System, provided that the aggregate liability in respect of all such
Indebtedness shall not exceed $6.0 million at any time; (ix) Indebtedness
incurred by FINOP at a time when it satisfied the definition of Non-Recourse
Subsidiary; or (x) Indebtedness not otherwise permitted in an aggregate
principal amount not in excess of $7.5 million at any one time outstanding.
"Permitted Investments" means: (a) certificates of deposit with a maturity
of one year or less issued by U.S. commercial banks having capital and surplus
in excess of $100.0 million; (b) commercial paper with a minimum rating of A1
and/or P1 by Standard & Poor's Corporation and/or Moody's Investors Service,
Inc., respectively; (c) direct obligations of the United States or of a United
States agency with a maturity of one year or less; and (d) shares of money
market mutual or similar funds having assets in excess of $100.0 million.
"Permitted Liens" means with respect to any Person, (i) pledges or deposits
by such Person under workmen's compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness), utility services or
leases to which such Person is a party, or deposits to secure public or
statutory obligations of such Person or deposits of cash or U.S. Government
bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the payment of
rent and incurred in the ordinary course of such Person's business; (ii) Liens
determined by law, such as carriers', warehousemen's, mechanics' and bankers'
Liens and incurred in the ordinary course of such Person's business; (iii) Liens
for taxes not yet subject to penalties for non-payment or which are being
contested in good faith and by appropriate proceedings, if adequate reserve, as
may be required by GAAP, shall have been made therefor; (iv) Liens in favor of
issuers of surety bonds (other than to satisfy any judgment or judgments) issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business; and (v) survey exceptions, encumbrances, easements or
reservations of, or rights of others for, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real properties or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties and
incurred in the ordinary course of such Person's business.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
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<PAGE>
"POS System" means the automated reporting system to be installed by the
Company in certain of its retail convenience stores for the purpose of entering
into a central data system maintained by the Company certain information with
respect to such stores through the use of personal computers, equipment,
software, supplies and/or other assets located at such stores.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Prospectus" means the Company's Prospectus dated ________, 1994 with
respect to the offer and sale of the Securities on the Issue Date.
"Public Equity Offering" means an underwritten public offering of common
stock of the Company (other than Redeemable Stock or Exchangeable Stock),
pursuant to an effective registration statement filed pursuant to the Securities
Act of 1933, as amended.
"Redeemable Stock" means any Capital Stock that by its terms or otherwise
is required to be redeemed prior to the first anniversary of the Stated Maturity
of the Securities or is redeemable at the option of the holder thereof any time
prior to the first anniversary of the Stated Maturity of the Securities.
"Redemption Date" or "redemption date" means the date specified for
redemption of Securities in accordance with the terms of the Securities and this
Indenture.
"Redemption Price" or "redemption price" shall have the meaning set forth
in paragraph 5 of the Securities.
"Reference Period" means, with respect to any computation of the
Consolidated Fixed Charge Coverage Ratio, the most recent four fiscal quarters
of the Company for which internal financial statements of the Company are
available prior to the date of determination of the Consolidated Fixed Charge
Coverage Ratio.
"Related Party" with respect to each Permitted Holder means (a) any spouse
or immediate family member of such Permitted Holder or (b) any trust,
corporation, partnership or other entity, all of the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of Permitted Holders and/or such other
Persons referred to in the immediately preceding clause (a).
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<PAGE>
"Sale-Leaseback Transaction" means any arrangement relating to property now
owned or hereafter acquired whereby the Company or a Subsidiary transfers such
property to a Person and leases it back from such Person.
"SBA" means the Small Business Administration or any successor thereto
established by the Small Business Act (15 U.S.C., Section 633), or any successor
statute to carry out the policies of that Act.
"SBIC" means a small business investment company approved by the SBA to
operate under the provisions of the Small Business Investment Act of 1958, as
amended (15 U.S.C., Section 662), or any successor statute and issued a license
as provided in Section 681 of that Act.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means any of the Company's _________% Senior Subordinated
Notes due 2004, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" or "Holder" means a Person in whose name a Security is
registered on the Registrar's books.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the principal of such security is
due and payable, including pursuant to any mandatory redemption provision.
"Subordinated Indebtedness" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinated or
junior in right of payment to the Securities.
"Subsidiary" means 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 interest (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries, or (iii) one or more Subsidiaries. Notwithstanding the foregoing,
the Non-Recourse Subsidiary shall not be deemed to be a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 as amended and as in effect on
the date of this Indenture; provided, however, that in the event the TIA is
-------- -------
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
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<PAGE>
"Trust Officer", when used with respect to the Trustee, means the chairman
or vice-chairman of the Board of Directors, the chairman or vice-chairman of the
executive committee of the Board of Directors, the President, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller and any assistant controller 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.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Voting Stock" means, with respect to a corporation, all classes of capital
stock then outstanding of such corporation normally entitled to vote in
elections of directors.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of which
(other than directors' qualifying shares) is owned by the Company or another
Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
-----------------
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Act"............................................ 1.05
"Bankruptcy Law"................................. 6.01
"Change of Control Offer"........................ 3.08
"Change of Control Purchase Date"................ 3.08
"Custodian"...................................... 6.01
"Disposition Purchase Date"...................... 3.09
"Disposition Offer".............................. 3.09
"Disposition Offer Amount"....................... 3.09
"Event of Default"............................... 6.01
"Excess Proceeds"................................ 4.16
</TABLE>
-16-
<PAGE>
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Existing Liens"................................. 4.09
"Guarantor Senior Indebtedness".................. 11.02
"Legal Holiday".................................. 12.08
"Notice of Default".............................. 6.01
"Participating Indebtedness"..................... 11.05
"Paying Agent"................................... 2.03
"Refinancing Indebtedness"....................... 1.01
"Register"....................................... 2.03
"Registrar"...................................... 2.03
"Restricted Payment"............................. 4.07
"Significant Company Senior Indebtedness"........ 10.02
"Successor Person"............................... 5.01
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
----------------------------------- -------------
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities; with respect to the requirements of Section 3.12 to
3.17, inclusive of the TIA, such terms shall include the Guarantors if the
Company fails to perform its obligations under such Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise requires:
---------------------
(1) A term has the meaning assigned to it;
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<PAGE>
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
SECTION 1.05. Acts of Holders.
---------------
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given 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 an 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 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 conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(3) The ownership of Securities shall be proved by the Register.
(4) 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.
(5) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at
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<PAGE>
its option, by or pursuant to a resolution of its Board of Directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such request, demand, authorization,
direction, notice or consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating. The Securities, the notation thereon
---------------
relating to the Guarantees and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A attached hereto. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The form of the Securities and any notation, legend or endorsement shall
be in a form acceptable to the Company. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the Securities, annexed hereto as
Exhibit A, and the notation thereon relating to the Guarantees shall constitute,
and are hereby expressly made, a part of this Indenture. To the extent
applicable, the Company, the Guarantors and the Trustee by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
SECTION 2.02. Execution and Authentication. The Securities shall be
----------------------------
executed on behalf of the Company by its Chief Executive Officer, its President
or one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any such Officer on the Securities may be manual or facsimile.
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.
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<PAGE>
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 in Exhibit
I annexed hereto duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and made available for delivery hereunder.
The Trustee shall authenticate and make available for delivery Securities
for original issue in the aggregate principal amount of $75,000,000 upon a Board
of Directors resolution and a written order of the Company signed by two
Officers of the Company, but without any further action by the Company. Such
order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
delivered. The aggregate principal amount of Securities outstanding at any time
may not exceed $75,000,000, except as provided in Section 2.07 hereof.
The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent reasonably acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as a Paying Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain or
--------------------------
cause to be maintained an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented or surrendered for purchase or payment
("Paying Agent") and an office or agency where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange (the "Register"). The Company may have one or more co-Registrars and
one or more additional Paying Agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-Registrar (if not the Trustee or the Company).
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and address of any
such
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<PAGE>
agent. If the Company fails to maintain a Registrar, Paying Agent or agent for
service of notices or demands, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07 hereof.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar or co-Registrar or agent for service of notices and
demands.
The Company initially appoints the Trustee as Registrar and Paying Agent and
agent for service of notices and demands.
SECTION 2.04. Paying Agent to Hold Money in Trust. Except as otherwise
-----------------------------------
provided herein, prior to each due date of the principal, premium, if any, and
interest on any Security, the Company shall deposit with the Paying Agent a sum
of money sufficient to pay such principal, premium, if any, and interest so
becoming due. The Company shall require each Paying Agent (other than the
Trustee or the Company) to agree in writing that such Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, and interest on the
Securities (whether such money has been paid to it by the Company, any Guarantor
or any other obligor on the Securities) and shall notify the Trustee of any
default by the Company (or any Guarantor or other obligor on the Securities) in
making any such payment. At any time during the continuance of any such
default, the Paying Agent shall, upon the request of the Trustee, forthwith pay
to the Trustee all money so held in trust and account for any money disbursed by
it. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any money disbursed by it. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to
the Trustee. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
--------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee on or before
each interest payment date and at such other times as the Trustee may request in
writing, within five Business Days of such request, a list in such form as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. When Securities are presented to the
---------------------
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met. To permit
registrations of transfer and exchanges, the Company shall execute and the
Trustee shall authenticate Securities
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<PAGE>
and each Guarantor will execute its notation therein relating to its Guarantee
thereof, all at the Registrar's request.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not charge a service charge for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Security for a period beginning at
the opening of business 15 days before the mailing of a notice of repurchase of
Securities and ending at the close of business on the day of such mailing, (b)
any Security selected, called or being called for redemption, except, in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed or (c) any Security between a record date and the next succeeding
interest payment date.
SECTION 2.07. Replacement Securities. If (a) any mutilated Security is
----------------------
surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such Security or
indemnity as may be required by them to save each 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 in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding, each Guarantor shall execute the notation on
such new Security relating to its Guarantee thereof, and the Trustee shall
authenticate and make such new Security available for delivery.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, or is about to be purchased by the Company
pursuant to Article 3 hereof, the Company in its discretion may, instead of
issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07, the Company
may require the payment of a sum sufficient to cover any tax or other
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<PAGE>
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security, and every Guarantee with respect
thereto, shall constitute an original additional contractual obligation of the
Company and each Guarantor thereunder, as the case may be, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 2.07 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 2.08. Outstanding Securities; Determinations of Holders' Action.
---------------------------------------------------------
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those referred to in Section 2.07 hereof, or purchased by the Company pursuant
to Article 3 hereof and those described in this Section 2.08 as not outstanding.
A Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security; provided, however, that in determining whether the
-------- -------
Holders of the requisite principal amount of Securities have given or concurred
in any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company, any Guarantor or other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in
any such determination (including determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, in accordance with this
Indenture, at maturity or on a Redemption Date, money sufficient to pay the
Securities payable on that date, then immediately on the date of maturity or
such Redemption Date, as the case may be, such Securities shall cease to be
outstanding and interest, if any, on such Securities shall cease to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities are ready
--------------------
for delivery, the Company may execute temporary Securities, each Guarantor shall
execute the notation thereon relating to its Guarantee thereof, and upon the
Company's written request, signed by two Officers of the Company, the Trustee
shall
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<PAGE>
authenticate and make such temporary Securities available for delivery.
Temporary Securities shall be 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 of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03
hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute a like principal
amount of definitive Securities of authorized denominations, each Guarantor
shall execute the notation thereon of its Guarantee thereof and the Trustee,
upon written request of the Company signed by two Officers of the Company, shall
authenticate and make such Securities available for delivery in exchange
therefor. Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.10. Cancellation. All Securities surrendered for payment,
------------
purchase by the Company, redemption by the Company pursuant to Article 3 hereof,
or registration of transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and made available for
delivery hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. The
Company may not reissue, or issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 2.10, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of destruction to the Company.
SECTION 2.11. CUSIP Numbers. The Company, in issuing the Securities may
-------------
use "CUSIP" numbers (if then generally in use), and the Trustee shall use CUSIP
numbers in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall 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 redemption or exchange and that reliance may be
placed only on the
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<PAGE>
other identification numbers printed on the Securities and any redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of
------------------
interest on the Securities, it shall pay the defaulted interest, plus to the
extent lawful) any interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, and such special record
date, as used in this Section 2.12 with respect to the payment of any defaulted
interest, shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before the subsequent special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest to be
paid. The Company may also pay defaulted interest in any other lawful manner.
ARTICLE 3
REDEMPTION AND REPURCHASE
SECTION 3.01. Right to Redeem; Notices to Trustee. Except as provided for
-----------------------------------
under Section 3.02 hereof, the Securities may not be redeemed at the option of
the Company prior to __________________, 1999. On or after such date, the
Securities may be redeemed at the option of the Company in whole, or from time
to time in part, at the following redemption prices (expressed in percentages of
the principal amount), plus accrued interest to the date of redemption, if
redeemed during the twelve-month period beginning _________ of the years
indicated below.
Year Percentage
---- ----------
1999
2000
2001
2002 and thereafter 100.00
SECTION 3.02. Public Equity Offering Redemption. In addition to the
---------------------------------
optional redemption of the Securities provided for under Section 3.01 hereof, up
to $20.0 million aggregate principal amount of the Securities will be
redeemable, at the option of the Company in whole or in part, with the Net
Proceeds of a Public Equity Offering, at a redemption price equal to ______% of
the principal amount of the Securities to be redeemed, plus accrued and unpaid
interest to the date of redemption; provided, however, that no such optional
-------- -------
redemption pursuant to this Section 3.02 may be effected on or after the third
anniversary of the Issue Date. The New Credit Agreement may restrict the
Company's ability to redeem the Securities as described in sections 3.01 and
3.02 hereof.
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SECTION 3.03. Selection of Securities to be Redeemed. If less than all
--------------------------------------
the outstanding Securities are to be redeemed at any time, the Trustee shall
select the Securities to be redeemed in compliance with the rules 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,
on a pro rata basis, by lot or, any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Securities not previously
called for redemption. Securities and portions of them the Trustee selects
shall be in principal amounts of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.04. Notice of Redemption. At least 30 days but not more than 60
--------------------
days before a Redemption Date (which may, in the case of redemption in
connection with a Public Equity Offering, be adjusted to the extent necessary
and appropriate under the circumstances and based solely on the timing of the
consummation of the Public Equity Offering), a notice of redemption shall be
mailed by first-class mail, postage prepaid, by the Company or, at the request
of the Company, the Trustee to each Holder of Securities to be redeemed at the
Holder's last address, as it shall appear on the registry book. A copy of such
notice shall be mailed to the Trustee on the same day the notice is mailed to
Holders of Securities.
The notice shall identify the Securities to be redeemed the provision of
the Securities or this Indenture pursuant to which the Securities called for
redemption are being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the CUSIP number (subject to the provisions of Section 2.11 hereof);
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(6) if fewer than all the outstanding Securities are to be redeemed, the
identification and principal amounts of the particular Securities to be redeemed
and that, on and after the Redemption Date, upon surrender of such Securities, a
new Security or Securities in principal amount equal to the unredeemed portion
thereof will be issued; and
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(7) that, unless the Company defaults in making such redemption payment,
interest will cease to accrue on Securities called for redemption on and after
the Redemption Date.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption
------------------------------
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon the later of the Redemption
Date and the date such Securities are surrendered to the Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price plus
accrued interest to the Redemption Date, if money sufficient for that purpose
has been deposited as provided in Section 3.05 hereof.
Notice of redemption shall be deemed to be given when mailed, whether or
not the Holder receives such notice. In any event, failure to give such notice,
or any defect therein, shall not affect the validity of the proceedings for the
redemption of the Securities.
SECTION 3.06. Deposit of Redemption Price. Prior to the Redemption Date,
---------------------------
the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation.
SECTION 3.07. Securities Redeemed in Part. Upon surrender of a Security
---------------------------
that is redeemed in part, the Company shall execute a new Security in an
authorized denomination equal in principal amount to the unredeemed portion of
the Security surrendered, each Guarantor shall execute the notation thereon
relating to its Guarantee thereof and the Trustee shall authenticate and make
such new Security available for delivery to the Holder.
SECTION 3.08. Offer to Repurchase Upon Change of Control. (a) Upon a
-----------------------------------------
Change of Control, the Company shall promptly notify the Trustee thereof and
shall purchase Securities tendered by Securityholders pursuant to a tender offer
which shall be made by the Company for the Securities (a "Change of Control
Offer") at the purchase price in cash equal to 101% of the principal amount
thereof plus accrued interest, if any, to the Change of Control Purchase Date
(as defined in paragraph (b) of this Section 3.08), in accordance with the
procedures set forth in paragraph (b) of this Section 3.08.
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(b) Promptly, and in any event within 30 days, after each Change of
Control, the Company shall be obligated to deliver to the Trustee and send, by
first-class mail to each Holder, a written notice stating that, pursuant to this
Section 3.08:
(i) a Change of Control has occurred and the Holder may elect to
have his Securities purchased by the Company either in whole or in part, at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase;
(ii) the repurchase date (which shall be no less than 30 days nor
more than 60 days after the date such notice is mailed) (the "Change of
Control Purchase Date");
(iii) the circumstances and relevant facts known to the Company
regarding such Change of Control (including, to the extent applicable,
information with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of Control) which the Company
in good faith believes will enable such Holders to make an informed decision;
and
(iv) all instructions and materials necessary to tender Securities
pursuant to the Change of Control Offer, together with the information contained
in paragraph (c) below.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days prior to the
Change of Control Purchase Date. Holders will be entitled to withdraw their
election if the Corporate Trust Department of the Trustee or the Company
receives, not later than three Business Days prior to the Change of Control
Purchase Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Security which was delivered
for purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security Purchased.
(d) On the Change of Control Purchase Date, all Securities purchased by
the Company under this Section shall be delivered by the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued interest
to the Holders entitled thereto. In connection with Holders whose Securities
are purchased only in part, the Company shall execute new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered, each
Guarantor shall execute the notation therein relating to its Guarantee thereof
and the Trustee (at the Company's expense) shall authenticate and make such new
Securities available for delivery to such Holders. At the time the Company
delivers Securities to the Trustee which are
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to be accepted for purchase, the Company will also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time payment therefor is
mailed or delivered to the surrendering Holder.
SECTION 3.09. Offer to Repurchase With Net Cash Proceeds from Certain
-------------------------------------------------------
Asset Dispositions. (a) In the event of an Asset Disposition that requires the
- ------------------
purchase of Securities pursuant to Section 4.16, the Company will be required to
make an offer for the Securities (a "Disposition Offer") and repurchase the
Securities tendered pursuant thereto in an amount equal to the aggregate amount
of Excess Proceeds, at a repurchase price in cash equal to 100% of their
principal amount plus accrued interest to the date of repurchase in accordance
with the procedures (including prorating in the event of oversubscription) set
forth in paragraph (b) below. Upon completion of the repurchase, if any, of
Securities pursuant to the Disposition Offer, the amount of Excess Proceeds
shall be reset to zero. If the aggregate repurchase price of Securities
tendered pursuant to the Disposition Offer is less than the Excess Proceeds
allotted to the repurchase of the Securities, the Company may use the remaining
Excess Proceeds for general corporate purposes.
(b) (1) Promptly, and in any event within 30 days, after the date the
Company must make a Disposition Offer for Securities pursuant to Section 4.16
hereof, the Company shall be obligated to deliver to the Trustee and send, by
first-class mail to each Holder, a written notice stating that, pursuant to this
Section, the Holder may elect to have his Securities purchased by the Company
either in whole or in part (subject to prorating as hereinafter described in the
event the Disposition Offer is oversubscribed) in integral multiples of $1,000
of principal amount, at the applicable purchase price. The notice shall specify
a purchase date not less than 30 days nor more than 60 days after the date of
such notice (the "Disposition Purchase Date") and shall contain information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which will include (i)
the most recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report, other than Current Reports
describing Asset Dispositions otherwise described in the offering materials (or
corresponding successor reports), or if the Company does not and is not required
to file such reports, information similar to that required by such reports; (ii)
a description of material developments in the Company's business subsequent to
the date of the latest of such Reports; and (iii) if material, appropriate pro
forma financial information) and all instructions and materials necessary to
tender Securities pursuant to the Disposition Offer, together with the
information contained in clause (3) below.
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(2) Not later than the date upon which written notice of a
Disposition Offer is delivered to the Trustee as provided above, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the amount of
Excess Proceeds applicable to the Disposition Offer (the "Disposition Offer
Amount"), (ii) the allocation of the Net Available Cash Proceeds from the Asset
Dispositions pursuant to which the Disposition Offer is being made, and (iii)
the compliance of such amount and allocation with the provisions of paragraph
(a) of this Section. Not later than one business day prior to the Disposition
Purchase Date, the Company shall also irrevocably deposit with the Paying Agent
for the Trustee (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust) in immediately available funds an amount equal to the
Disposition Offer Amount to be held for payment in accordance with the
provisions of this Section. Upon the expiration of the period for which the
Disposition Offer remains open (the "Disposition Offer Period"), the Company
shall deliver to the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Company. The Trustee shall,
on the Disposition Purchase Date, instruct the Paying Agent to mail or deliver
payment to each tendering Holder in the amount of the purchase price with
respect to the Securities tendered by such Holder and accepted by the Company
from the funds provided by the Company for such payment. In the event that the
aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Disposition Offer Amount, the Paying Agent shall
deliver the excess to the Company immediately after the expiration of the
Disposition Offer Period.
(3) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days prior to the
Disposition Purchase Date. Holders will be entitled to withdraw their election
if the Corporate Trust Department of the Trustee or the Company receives not
later than three Business Days prior to the Disposition Purchase Date a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the security which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election to have
such Security purchased. If at the expiration of the Disposition Offer Period
the aggregate principal amount of Securities surrendered by Holders exceeds the
Disposition Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased). In connection with Holders
whose Securities are purchased only in part, the Company shall execute new
Securities equal in principal surrendered, each Guarantor shall execute the
notation therein relating to its Guarantee thereof and the Trustee, at the
Company's expense, shall authenticate and make such new Securities available for
delivery to such Holders.
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(4) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company will also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 3.09. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the principal
---------------------
of, premium, if any, and interest (including interest accruing on or after the
filing of a petition in bankruptcy or reorganization relating to the Company,
whether or not a claim for post-filing interest is allowed in such proceeding)
on the Securities on (or prior to) the dates and in the manner provided in the
Securities or pursuant to this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the applicable date due if on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all of such installment then due. The
Company shall pay interest on overdue principal and premium, if any, and
interest on overdue installments of interest (including interest accruing on or
after the filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in such
proceeding), to the extent lawful, at the rate per annum borne by the
Securities, which interest on overdue interest shall accrue from the date such
amounts became overdue.
SECTION 4.02. SEC Reports. The Company and each Guarantor, shall file
-----------
with the Trustee and provide the Securityholders, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company or any Guarantor, is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. Notwithstanding that the Company may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall continue to file with the SEC and provide the Trustee and the
Securityholders with such annual reports and such information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which are specified in Sections 13 or 15(d)
of the Exchange Act. The Company, and each Guarantor also shall comply with the
provisions of Section 314(a) of the TIA.
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SECTION 4.03. Compliance Certificates.
-----------------------
(1) The Company shall deliver to the Trustee within 90 days after the end
of each of the Company's fiscal years an Officers' Certificate executed by at
least two Officers of the Company, stating whether or not the signers know of
any Default or Event of Default. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal
accounting officer of the Company as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 4.03(1), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Indenture. If
such Officers do know of such a Default or Event of Default, the certificate
shall describe any such Default or Event of Default, and its status. Such
Officers' Certificate need not comply with Sections 12.04 and 12.05 hereof.
(2) So long as not contrary to the then current recommendation of the
American Institute of Certified Public Accountants, the Company shall deliver to
the Trustee within 120 days after the end of each fiscal year a written
statement by the Company's independent certified pubic accountants stating (A)
that their audit examination has included a review of the terms of this
Indenture and the Securities as they relate to accounting matters, and (B))
whether, in connection with their audit examination, any Default has come to
their attention and, if such a Default has come to their attention, specifying
the nature and period of the existence thereof; provided, however, that the
-------- -------
independent certified public accountants delivering such statement shall not be
liable in respect of such statement by reason of any failure to obtain knowledge
of any such Default or Event of Default that would not be disclosed in the
course of an audit examination conducted in accordance with GAAP.
(3) The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, within five Business Days of any Officer becoming aware
of (i) any Default, Event of Default or default in the performance of any
covenant, agreement or condition contained in this Indenture or (ii) any event
of default under any other mortgage, indenture or instrument, an Officers'
Certificate specifying such Default, Event of Default, default or event of
default and what action the Company is taking or proposes to take with respect
thereto.
(4) The Company shall deliver to the Trustee any information reasonably
requested by the Trustee in connection with the compliance by the Trustee or the
Company with the TIA.
SECTION 4.04. Further Instruments and Acts. Upon request of the Trustee,
----------------------------
the Company, each Guarantor and any other obligor on the Securities will execute
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and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.05. Maintenance of Office or Agency. The Company will maintain
-------------------------------
or cause to be maintained, within or outside the State of New York, an office or
agency of the Trustee, Registrar and Paying Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange or redemption and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The corporate trust office of the Trustee at Society Trust Company of
New York, 5 Hanover Square, 10th Floor, New York, New York 10004 Attention:
Corporate Trust Department, shall initially be such office or agency for all of
the aforesaid purposes. The Company shall give prompt written notice to the
Trustee of any change of location of such office or agency. If at any time the
Company shall fail to maintain or cause to be maintained any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02 hereof.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in location of any such other office or agency.
SECTION 4.06. Limitation on Additional Indebtedness and New Operating
-------------------------------------------------------
Leases. The Company may not, and may not permit any of its Subsidiaries to,
- ------
Incur, directly or indirectly, any Indebtedness (including Acquired
Indebtedness) or enter into any New Operating Lease, unless the Consolidated
Fixed Charge Coverage Ratio for the Reference Period, determined on the date of
issuance of such Indebtedness or the date of execution of such New Operating
Lease, as the case may be, and after giving effect to: (i) Incurrence of such
Indebtedness and (if applicable) the application of the Net Proceeds thereof to
refinance other Indebtedness as if such Indebtedness was issued and the
application of such Net Proceeds occurred at the beginning of the Reference
Period; (ii) Incurrence and retirement of any other Indebtedness since the last
day of the most recent fiscal quarter of the Company contained in the Reference
Period as if such Indebtedness was Incurred or retired at the beginning of the
Reference Period; and (iii) the execution of such New Operating Lease and any
other New Operating Leases executed since the last day of the most recent fiscal
quarter of the Company contained in the Reference Period as if such New
Operating Lease and any such other New Operating Leases were executed at the
beginning of the Reference Period (it being understood that, for purposes of
determining the Consolidated Fixed Charge Coverage Ratio, New Operating Lease
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payments shall be included in Consolidated Operating Lease Payments), is equal
to or greater than the ratio of 2.0 to 1.0.
Notwithstanding the preceding paragraph, the Company and the Subsidiaries
may Incur Permitted Indebtedness.
SECTION 4.07. Limitation on Restricted Payments. The Company may not, and
---------------------------------
may not permit any Subsidiary, directly or indirectly, to (i) declare or pay any
dividend or make any distribution in respect of the Company's or any
Subsidiary's Capital Stock or to the direct or indirect holders of the Company's
or any Subsidiary's Capital Stock (except dividends or distributions payable
solely in the Company's Non-Convertible Capital Stock or in options, warrants or
other rights to purchase the Company's Non-Convertible Capital Stock and except
dividends or distributions payable from a Subsidiary to the Company or a Wholly
Owned Subsidiary which is a Guarantor); (ii) purchase, redeem or otherwise
acquire or retire for value, any Capital Stock of the Company or any Subsidiary;
(iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Indebtedness of the Company or any Indebtedness
of a Subsidiary (other than Guarantor Senior Indebtedness and other than the
Company's 14.25% Subordinated Debentures due 2000); or (iv) make any Investment
in any Subsidiary (other than prepayments of leases of underperforming or
nonutilized convenience stores in the ordinary course of business), the Non-
Recourse Subsidiary (except as permitted by clause; (iii) of Section 4.08
hereof) or any other Affiliate of the Company (any such dividend, distribution,
purchase, redemption, repurchase, defeasance, other acquisition, retirement or
Investment being hereinafter referred to as a "Restricted Payment"), unless:
(A) no Default or Event of Default will have occurred and be continuing at the
time or as a consequence of such Restricted Payment; (B) at the time of such
Restricted Payment, the Company could incur an additional $1.00 of Indebtedness
(not including Permitted Indebtedness) under Section 4.06 hereof; and (C) such
Restricted Payment, together with the aggregate of all other Restricted Payments
made since May 1, 1993, would not exceed the sum of (x) 50% of Consolidated Net
Income (or if Consolidated Net Income is a deficit minus 100% of such deficit)
accrued on a cumulative basis from May 1, 1993 to the end of the most recent
fiscal quarter ending prior to the date of such proposed Restricted Payment,
calculated on a cumulative basis as if such period were a single accounting
period; (y) the aggregate Net Proceeds received by the Company from any Person
(other than a Subsidiary and the Non-Recourse Subsidiary) subsequent to the
Issue Date (1) as a result of the issuance of Capital Stock of the Company
(other than Redeemable Stock or Exchangeable Stock) or (2) as a result of a
capital contribution from its shareholders, but, with respect to any proceeds
received by the Company from an employee stock ownership plan that Incurs any
Indebtedness, only to the extent that any such proceeds are equal to any
increase in the Consolidated Net Worth of the Company resulting from principal
repayments made by such
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employee stock ownership plan with respect to the Indebtedness Incurred by it to
finance the purchase of such Capital Stock; and (z) the amount by which
Indebtedness of the Company is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Subsidiary) subsequent to the Issue Date
of any Indebtedness of the Company convertible into or exchangeable for Capital
Stock (other than Redeemable Stock or Exchangeable Stock) of the Company.
The foregoing provisions do not prohibit (i) the payment of any dividend in
respect of the Company's or any Subsidiary's Capital Stock within 60 days after
the date of declaration thereof, if on such date of declaration such payment
complied with the provisions of this Indenture and provided that at the time of
payment no other Default or Event of Default has occurred and is continuing;
(ii) the purchase, redemption, acquisition or retirement of any Indebtedness
with the Incurrence of Refinancing Indebtedness permitted under Section 4.06
hereof; (iii) any dividend on shares of the Company's or any Subsidiary's
Capital Stock payable in shares of the Company's or such Subsidiary's Capital
Stock (other than Redeemable Stock or Exchangeable Stock); and (iv) an
Investment by the Company in a Wholly-Owned Subsidiary which is a Guarantor or a
Person who will become a Wholly-Owned Subsidiary which is a Guarantor as a
result of such Investment.
SECTION 4.08. Limitation on Investments. The Company may not, and may not
-------------------------
permit any Subsidiary, directly or indirectly, to make any Investment other than
(i) Permitted Investments; (ii) an Investment constituting a Restricted Payment
if such Restricted Payment is permitted by Section 4.07; or (iii) Investments in
the Non-Recourse Subsidiary in an amount not to exceed $2.5 million.
SECTION 4.09. Limitation on Liens. The Company may not, and may not
-------------------
permit any Subsidiary, directly or indirectly, to create, incur, assume or
permit to exist any Lien upon any of its or any Subsidiary's property or assets
now owned or hereafter acquired, other than Liens that are: (i) outstanding
immediately prior to the issuance of the Securities; (ii) Liens securing
Indebtedness of a Subsidiary owing to the Company or a Wholly Owned Subsidiary
which is a Guarantor; (iii) Liens securing Senior Indebtedness of the Company
permitted to be Incurred under Section 4.06 hereof; (iv) Permitted Liens; (v)
Liens incurred in connection with a Sale-Leaseback Transaction permitted under
Section 4.11 hereof; (vi) Liens on property of a Person existing at the time
such Person is acquired by, merged into or consolidated with the Company or any
Subsidiary, (except to the extent such Liens were Incurred in connection with,
or in contemplation of, such acquisition, merger or consolidation), which Lien
is not applicable to any Person or the properties or assets of any Person, other
than the Person, or the property or asset of the Person, so acquired; and (vii)
any extension, renewal or replacement (including successive extensions, renewals
or replacements) of Liens permitted by any of clauses (i) through (vi) above
("Existing Liens"), so long as (A) the Lien does not extend beyond property or
assets of the Company and its Subsidiaries subject to the Existing Lien
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and improvements and construction on such property or assets, and (B) the
Indebtedness secured by the Lien does not exceed the Indebtedness secured at the
time by the Existing Lien.
SECTION 4.10. Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries. The Company may not, and may not permit any Subsidiary
- ----------------------
to, create or otherwise cause or permit to exist or become effective any
encumbrance or restriction of any kind which restricts the ability of any such
Subsidiary to: (i) pay dividends or make any other distributions on such
Subsidiary's Capital Stock or pay any Indebtedness or other obligation owed to
the Company or any Subsidiary; (ii) make any loans or advances to the Company or
any Subsidiary; (iii) guaranty the Securities or any renewals or refinancings
thereof; or (iv) transfer any of its property or assets to the Company or any
Subsidiary, except, in each case, for such encumbrances or restrictions existing
under or by reason of (1) applicable law, (2) this Indenture, (3) customary
nonassignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary, (4) any instrument governing Acquired Indebtedness
(except to the extent such Indebtedness was Incurred in connection with, or in
contemplation of, such acquisition) as in effect at the time of acquisition,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, (5) Existing Indebtedness, or (6) permitted
Refinancing Indebtedness provided that the encumbrances or restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced, as in effect on the Issue Date.
SECTION 4.11. Limitation on Sale-Leaseback Transactions. The Company will
-----------------------------------------
not, and will not permit any Subsidiary to, enter into any Sale-Leaseback
Transaction unless at least one of the following conditions is satisfied: (i)
under the provisions described under Section 4.09 hereof and Section 4.06 hereof
the Company or a Subsidiary could create a Lien on the property to secure
Indebtedness in an amount equal to the Attributable Indebtedness in connection
with such Sale-Leaseback Transaction; or (ii) the net proceeds of such Sale-
Leaseback Transaction are at least equal to the fair market value of such
property as determined in good faith by the Board of Directors of the Company.
SECTION 4.12. Limitation on Transactions with Affiliates. The Company
------------------------------------------
will not, and will not permit any Subsidiary to, directly or indirectly, enter
into or permit to exist any transaction or series of related transactions
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Company or of any Subsidiary
(other than a Wholly Owned Subsidiary which is a Guarantor) on terms that are
less favorable to the Company or such Subsidiary, as the case may be, than those
which might be obtained at the time of such transaction from unrelated third
parties. This provision will not prohibit
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the payment of reasonable and customary directors' fees to directors who are not
employees of the Company or the payment of reasonable compensation to employees
of the Company in the ordinary course of business. Without in any way limiting
the foregoing restriction, the Company will not, and will not permit any
Subsidiary to, directly or indirectly, enter into or permit to exist any
transactions or series of related transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate of the Company or of any Subsidiary (other than a Wholly Owned
Subsidiary which is a Guarantor) involving aggregate payments in excess of
$250,000 unless: (i) a committee of independent members of the Board of
Directors of the Company shall approve by resolution certifying that such
transaction or series of transactions comply with the first sentence of this
Section 4.12; and (ii) with respect to (A) a transaction or series of
transactions involving aggregate payments equal to or greater than $2,000,000,
the Company also receives a written opinion from a nationally-recognized
investment bank with total assets in excess of $1.0 billion that such
transaction or series of transactions is fair to the Company from a financial
point of view; or (B) any purchase, sale, lease or exchange of real property or
Fixed Assets involving aggregate payments equal to or greater than $2.0 million,
in lieu of the opinion referred to in clause (A), at the option of the Company,
the Company also receives an opinion from a qualified appraisal company, that
the value of the property sold, purchased, leased or exchanged by the Company or
any Subsidiary is substantially equal to (or more favorable to the Company than)
the value of the consideration provided by or to the Company, as the case may
be, in respect thereof.
SECTION 4.13. Limitation on Other Senior Subordinated Indebtedness. The
----------------------------------------------------
Company will not incur any Indebtedness which is senior in right of payment to
the Securities and is subordinate or junior in right of payment to the Company's
Senior Indebtedness. No Guarantor will incur any Indebtedness which is senior
in right of any payment to such Guarantor's obligations under its Guarantee and
this Indenture and which is subordinate or junior in right of payment to
Guarantor Senior Indebtedness of such Guarantor.
SECTION 4.14. Additional Guarantors. If the Company or any Subsidiary
---------------------
makes any Investment having a fair market value exceeding $1,000, in one or a
series of related transactions, in any Subsidiary which is not a Guarantor, or
any Subsidiary which is not a Guarantor holds property or assets (including,
without limitation, cash, businesses, divisions, real property, assets or
equipment) having a fair market value exceeding $1,000, the Company shall cause
such Subsidiary 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 and the Indenture on the terms set forth in the Indenture
and (ii) deliver to the Trustee an Opinion of Counsel that such supplemental
indenture has been duly executed and delivered by
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such Subsidiary. Thereafter, such Subsidiary shall be a Guarantor for all
purposes of this Indenture.
SECTION 4.15. Use of Proceeds. The proceeds of the Securities will be
---------------
used by the Company in the manner described in the Prospectus. No part of such
proceeds will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock. Neither
the issuance of any Security nor the use of the proceeds thereof will violate or
be inconsistent with the provisions of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System.
SECTION 4.16. Limitation on Sales of Assets. The Company will not, and
-----------------------------
will not permit any Subsidiary to, directly or indirectly, make any Asset
Disposition unless the Company (or such Subsidiary, as the case may be) receives
at the time of such Asset Disposition consideration which (x) is paid at least
85% in cash and (y) is at least equal to the fair market value (including the
value of all noncash consideration), as determined in good faith by, and
evidenced by a resolution of the Board of Directors, if the consideration to be
received by the Company is equal to or greater than $1 million (or, if the
consideration to be received by the Company is less than $1 million but greater
than $25,000 (except in the case of Asset Dispositions to franchisees in the
ordinary course of business), as certified in good faith by two Officers, one of
whom shall be the President, in an Officers' Certificate delivered to the
Trustee within 30 Business Days following such Asset Disposition (no certificate
being required for sales as to which the consideration is $25,000 or less), of
the shares and assets subject to such Asset Disposition; provided, however, that
-------- -------
the requirement set forth in clause (x) above shall not apply to any sale,
lease, sublease, transfer or other disposition of stores to franchisees in the
ordinary course of business or of individual underperforming, nonutilized or
obsolete assets by the Company, or any Subsidiary in the ordinary course of
business. Within 210 days from the date of such Asset Disposition (the
"Disposition Period"), the Company (or such Subsidiary, as the case may be) may
apply all or any portion of the Net Available Cash Proceeds from such Asset
Disposition to (x) the prepayment of Senior Indebtedness or (y) an investment in
Fixed Assets in the same or substantially similar line of business as the assets
that were the subject of such Asset Disposition, provided that, if such Net
Available Cash Proceeds are applied to the prepayment of Senior Indebtedness,
the related loan commitment, if any, shall be permanently reduced, except that
in the event the Company repays revolving loans outstanding under the New Credit
Agreement with such Net Available Cash Proceeds, the related loan commitment
need not be permanently reduced so long as the Company reborrows the full amount
of the amount so prepaid and invests such amount in Fixed Assets in the same or
substantially similar line of business as the assets that were the subject of
such Asset Disposition within the Disposition Period. Without limiting the
lines of business which are considered the same or substantially similar for the
purposes hereof, the sale of gasoline, the operation of
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convenience stores, the franchising of convenience stores, and the
manufacturing, processing, and distribution businesses currently conducted by
the Company will be deemed to qualify as the same or substantially similar lines
of business. Notwithstanding the foregoing, if the Company enters into a
written agreement within the Disposition Period pursuant to which the Company
commits to reinvest such Net Available Cash Proceeds in Fixed Assets in the same
or substantially similar line of business as the assets that were the subject of
such Asset Disposition, the Company shall be permitted to reinvest such Net
Available Cash Proceeds within 90 days from the date of termination of the
Disposition Period in accordance with such written agreement. Subject to the
provisions of the next succeeding sentence, any Net Available Cash Proceeds from
any such Asset Disposition that are not applied or invested as provided in the
preceding three sentences shall constitute and be referred to herein as "Excess
Proceeds." When (x) any Excess Proceeds arise from the sale, issuance or other
disposition of Capital Stock of a Subsidiary or the Non-Recourse Subsidiary
(except to a Wholly Owned Subsidiary which is a Guarantor) or the sale or other
disposition of all or substantially all of the assets of a Subsidiary or the
Non-Recourse Subsidiary in one transaction or a series of related transactions
(except to a Wholly Owned Subsidiary which is a Guarantor) or (y) the aggregate
amount of Excess Proceeds from all Asset Dispositions (other than those referred
to in clause (x) of this sentence) exceeds $5.0 million, the Company shall make
an Disposition Offer (as defined in Section 3.09 hereof) to purchase Securities
pursuant to and subject to the conditions of Section 3.09 hereof.
Notwithstanding the foregoing, (i) an aggregate of $1.0 million of Net Available
Cash Proceeds received by the Company and/or the Subsidiaries in any fiscal year
from Asset Dispositions, not involving the sale, issuance or other disposition
of Capital Stock of a Subsidiary or the Non-Recourse Subsidiary or the sale or
other disposition of all or substantially all of the assets of a Subsidiary or
the Non-Recourse Subsidiary, shall not be subject to this Section 4.16, and (ii)
the Company may not, and may not permit any Subsidiary to, directly or
indirectly, make any Asset Disposition of any of the Capital Stock of a
Subsidiary or the Non-Recourse Subsidiary except pursuant to an Asset
Disposition of all of the Capital Stock of such Subsidiary or the Non-Recourse
Subsidiary.
SECTION 4.17. Payment of Taxes and Other Claims. The Company shall pay or
---------------------------------
discharge or cause to be paid or discharged, before any penalty accrues thereon,
(i) all material taxes, assessments and governmental charges levied or imposed
upon the Company, any Subsidiary or the Non-Recourse Subsidiary upon the income,
profits or property of the Company, any Subsidiary or the Non-Recourse
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
which, if unpaid, would by law become a Lien upon the property of the Company or
any Subsidiary; provided that none of the Company, any Subsidiary or the Non-
Recourse Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claims the amount, applicability
or validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision
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has been made or where the failure to effect such payment or discharge is not
adverse in any material respect to the Holders.
SECTION 4.18. Corporate Existence. Subject to Article 5 hereof, the
-------------------
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate, partnership or
other existence of any Subsidiary or the Non-Recourse Subsidiary in accordance
with the respective organizational documents of such Subsidiary or the Non-
Recourse Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and each Subsidiary and the Non-Recourse Subsidiary,
provided, however, that the Company shall not be required to preserve any such
- -------- -------
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary or the Non-Recourse Subsidiary, if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders.
SECTION 4.19. Maintenance of Properties and Insurance. (a) The Company
---------------------------------------
shall cause all material properties owned by or leased to it or any Subsidiary
or the Non-Recourse Subsidiary and used or useful in the conduct of its business
or the business of such Subsidiary to be maintained and kept in normal
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 4.19 shall prevent the Company, any Subsidiary or the
Non-Recourse Subsidiary from discontinuing the maintenance of any such
properties, if such discontinuance is desirable in the conduct of its business
or the business of such Subsidiary or the Non-Recourse Subsidiary.
(b) The Company shall provide or cause to be provided, for itself any
Subsidiaries and the Non-Recourse Subsidiary, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including, but
not limited to, public liability insurance, with reputable insurers in such
amounts with such deductibles and by such methods as shall be customary for
corporations similarly situated in the industry.
(c) The Company shall, and shall cause each Subsidiary and the Non-
Recourse Subsidiary to, keep true books of records and accounts in which full
and correct entries will be made of all its business transactions, in accordance
with sound business practices, and reflect in its financial statements adequate
accruals and appropriations to reserves, all in accordance with GAAP.
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(d) The Company, shall and shall cause each Subsidiary and the Non-
Recourse Subsidiary to, comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, non-compliance with
which would materially adversely affect the prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole.
SECTION 4.20. Conflicting Agreements. The Company will not, and will not
----------------------
permit any Subsidiary or the Non-Recourse Subsidiary to, enter into any
agreement (other than the Credit Agreement as in effect on the date hereof) or
instrument that by its terms expressly prohibits the Company from repurchasing
the Securities in accordance with Sections 3.08 or 3.09 hereof or otherwise in
accordance with the terms of the Securities.
SECTION 4.21. Investment Company Act. The Company shall not become an
----------------------
investment company subject to registration under the Investment Company Act of
1940, as amended.
SECTION 4.22. Payments for Consents. Neither the Company nor any
---------------------
Subsidiary shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities which so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or agreement.
SECTION 4.23. Covenant to Comply with Securities Laws Upon Purchase of
--------------------------------------------------------
Securities. In connection with any offer to purchase or purchase of Securities
- ----------
under Sections 3.02, 3.08 and 3.09 hereof, the Company shall (i) comply with
Rule 14e-1 under the Exchange Act, and any other applicable rules thereunder,
and (ii) otherwise comply with all federal and state securities laws so as to
permit the rights and obligations under Sections 3.02, 3.08 and 3.09 hereof to
be exercised in the time and in the manner specified in Sections 3.02, 3.08 and
3.09 hereof.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Company or any Guarantor May Merge, Etc. Subject
------------------------------------------------
to the provisions set forth in Section 11.03 hereof, neither the Company nor any
Guarantor may consolidate with or merge with or into, or sell, convey, transfer
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or lease all or substantially all of its assets (either in one transaction or a
series of transactions) to, any Person unless:
(1) the Person formed by or surviving such consolidation or merger (if
other than the Company or such Guarantor, as the case may be) or to which such
sale, conveyance, transfer or lease shall have been made (the "Successor
Person") is organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia and such entity
expressly assumes by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the Company
or such Guarantor, as the case may be, under the Securities or the Guarantees,
as the case may be, and the Indenture;
(2) immediately prior to and after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Person or
any Subsidiary (including any Guarantor) as a result of such transaction as
having been incurred by such Person or such Subsidiary (including any Guarantor)
at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;
(3) except with respect to consolidations, mergers, sales, conveyances,
transfers and leases between Guarantors, immediately after giving effect to such
transaction, on a pro forma basis, the Successor Person would be able to incur
an additional $1.00 of Indebtedness (other than Permitted Indebtedness) in
accordance with Section 4.06 hereof;
(4) if the Company is a party to such consolidation, merger, sale,
conveyance, transfer and lease, immediately after giving effect to such
transaction, on a pro forma basis, the Successor Person has Consolidated Net
Worth in an amount which is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(5) if such Guarantor is a party to such consolidation, merger, sale,
conveyance, transfer or lease, immediately after giving effect to such
transaction, on a pro forma basis, the Company has Consolidated Net Worth in an
amount which is not less than its Consolidated Net Worth immediately prior to
such transaction; and
(6) the Company, or such Guarantor, as the case may be, delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, conveyance, transfer or lease and such
supplemental indenture comply with this Indenture.
The Successor Person will be the successor Company, or a successor
Guarantor, as the case may be, but in the case of a sale, conveyance, transfer
or lease
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of all or substantially all of the assets of the Company or Guarantor (i) the
predecessor Company will not be released from its obligation to pay the
principal of, premium, if any, and interest on the Securities, and (ii) the
predecessor Guarantor will not be released from its obligation under its
Guarantee.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs if one of
-----------------
the following shall have occurred and be continuing:
(1) The Company defaults in the payment, when due and payable, of (i)
interest on any Security and the default continues for a period of 30 days, or
(ii) the principal of, or premium, if any, on any Securities when the same
becomes due and payable at maturity, acceleration, on any Redemption Date, on
any Change in Control Purchase Date, on any Disposition Offer Purchase Date or
otherwise;
(2) The Company or any Subsidiary fails to comply with Sections 4.16 or
5.01 hereof;
(3) The Company fails to comply with Section 4.15 hereof;
(4) The Company defaults in the performance of, fails to comply with, any
of its covenants or agreements in the Securities or this Indenture (other than
those referred to in clause (1), (2) or (3) above) and such failure continues
for 30 days after receipt by the Company of a Notice of Default;
(5) The Company, any Subsidiary (including any Guarantor) or the Non-
Recourse Subsidiary fails to pay the principal of any Indebtedness with a
principal amount then outstanding in excess of $500,000, individually or in the
aggregate, when the same becomes due and payable at its Stated Maturity and such
failure shall continue after any applicable grace period specified in the
mortgage, indenture, instrument or other agreement relating to such
Indebtedness; or a default on any such Indebtedness which results in such
Indebtedness becoming due and payable prior to its Stated Maturity;
(6) The Company, any Subsidiary (including any Guarantor) or the Non-
Recourse Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
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(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(D) makes a general assignment for the benefit of its creditors; or
(E) admits in writing its inability to pay its debts generally as
they become due;
(7) A court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company, any Subsidiary (including any
Guarantor) or the Non-Recourse Subsidiary in an involuntary
case or proceeding;
(B) appoints a Custodian of the Company, any Subsidiary (including
any Guarantor) or the Non-Recourse Subsidiary for all or
substantially all of its properties;
(C) orders the liquidation of the Company, any Subsidiary (including
any Guarantor) or the Non-Recourse Subsidiary;
(D) and in each case the order or decree remains unstayed and in
effect for 60 days; or
(8) Any judgment or decree for the payment of money in excess of $500,000
(to the extent not covered by insurance) is rendered against the Company, a
Subsidiary (including any Guarantor) or the Non-Recourse Subsidiary and is not
discharged and either (A) an enforcement proceeding has been commenced by a
creditor upon such judgment or decree or (B) there is a period of 45 days
following such judgment or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed; or
(9) Any of the Guarantees shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect, or any Guarantor, or any person acting by or on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is 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.
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The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (4) above after receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default."
SECTION 6.02. Acceleration. If any Event of Default, other than an Event
------------
of Default under clauses (6) or (7), occurs and is continuing, the Trustee may,
by notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the
Trustee (each, an "Acceleration Notice"), and the Trustee shall, upon the
request of such Holders, declare the principal of, and accrued but unpaid
interest on all of the Securities to be due and payable.
The Company shall deliver to the Trustee, within 10 days after it obtains
knowledge thereof, written notice in the form of an Officers' Certificate of any
event which with the giving of notice and the lapse of time would become an
Event of Default under clause (4), (5), or (8), its status and what action the
Company is taking or proposes to take with respect thereto. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in clause (6) or (7) with respect to the
Company, any Subsidiary (including any Guarantor) or the Non-Recourse Subsidiary
occurs and is continuing, the principal of and interest on all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the
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Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
-----------------------
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default or Event of Default and its consequences except (a) an Event of
Default described in Section 6.01(1) hereof, or (b) a Default in respect of a
provision that under Section 9.02 hereof cannot be amended without the consent
of each Securityholder affected. When a Default is waived, it is deemed cured
and shall cease to exist, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in aggregate
-------------------
principal amount of the Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits. Except as provided in Section 6.07
-------------------
hereof, a Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event
of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the Trustee;
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(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
------------------------------------
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount, premium, if any, or interest, in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, any Redemption Date, any Change in Control Purchase Date, or any
Disposition Offer Purchase Date, or to bring suit for the enforcement of any
such payment on or after such respective dates shall not be impaired or affected
adversely without the consent of each such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
---------- ---------------
described in Section 6.01(1) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company, each Guarantor or any other obligor on the Securities for the whole
amount owing with respect to the Securities and the amounts provided for in
Section 6.07 hereof.
SECTION 6.09. Trustee May File Proofs of Claim. In case of the pendency
--------------------------------
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, any Guarantor or other obligor on the Securities, or their
respective properties or assets, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the principal
amount, premium, if any, and interest on the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any Custodian 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 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 7.07 hereof.
Nothing herein contained 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 6.10. Priorities. If the Trustee collects any money pursuant to
----------
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for the principal amount, Redemption Price or interest, if any, as the case may
be, ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
---------------------
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 hereof or a suit by Holders of more than 10% in aggregate principal amount
of the Securities at the time outstanding.
SECTION 6.12. Waiver of Stay, Extension or Usury Laws. The Company and
---------------------------------------
each Guarantor 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 stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, that would prohibit or
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forgive the Company or such Guarantor from paying all or any portion of the
principal or premium, if any, or interest on the Securities as contemplated
herein or affect the covenants or the performance by the Company of its
obligations under this Indenture or by such Guarantor of its obligations under
its Guarantee; and the Company and each Guarantor (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, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in
the case of any such certificate or opinion which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(A) this paragraph (3) does not limit the effect of paragraph (2) of
this Section 7.01;
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(B) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(C) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2), (3) and (5) of this Section 7.01 and
Section 7.02.
(5) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives security or indemnity satisfactory to it against any loss,
liability or expense.
(6) 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 held by it hereunder.
SECTION 7.02. Rights of Trustee.
-----------------
(1) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate and Opinion of Counsel.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(5) 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.
(6) 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
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pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security and indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual
----------------------------
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar or co-registrar may do
the same with like rights. However, the Trustee must comply with Sections 7.10
and 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representation
--------------------
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement in the registration statement for the
Securities under the Securities Act (other than statements contained in the Form
T-l filed with the SEC under the TIA) or in this Indenture or the Securities
(other than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing
------------------
and if it is known to the Trustee, the Trustee shall mail to each Securityholder
as their names and addresses appear on the Security Register notice of the
Default within 60 days after it becomes known to the Trustee unless such Default
shall have been cured or waived. Except in the case of a Default described in
Section 6.01(1) hereof, the Trustee may withhold such notice if and so long as a
committee of Trust Officers in good faith determines that the withholding of
such notice is in the interests of Securityholders. The second sentence of this
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and
said proviso is hereby expressly excluded from this Indenture, as permitted by
the TIA.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
-----------------------------
May 15 beginning with May 15, 1994, the Trustee shall mail to each
Securityholder a brief report dated as of such __________ in accordance with and
to the extent required under Section 313 of the TIA.
A copy of each report at the time of its mailing to Securityholders shall
be filed with the Company, the SEC and each stock exchange on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company and the Guarantors,
--------------------------
jointly and severally, agree:
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(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) 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, disbursements and advances of its agents and counsel), including all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in connection with any membership on any creditor's committee, except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) To indemnify the Trustee, its officers, directors and shareholders,
for, and to hold it harmless against, any and all loss, liability or expense,
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable 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 claim and 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 7.07, except with respect to funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 are not
subject to Article 10 of this Indenture and shall survive the discharge of this
Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.01 hereof, the compensation for
services and expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
----------------------
notifying the Company in writing at least 30 days prior to the date of the
proposed resignation; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee subject to the consent of the
Company. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint, by resolution of
its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. Subject to payment of all amounts owing to the Trustee under
Section 7.07 hereof and subject further to its lien under Section 7.07, the
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
---------------------------
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including this Trusteeship) to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. (a) There will at all times
-----------------------------
be a Trustee hereunder which will (i) be a corporation organized and doing
business under the laws of the United States, any state thereof or the District
of Columbia, authorized under such laws to exercise corporate trust power; (ii)
be subject to supervision or examination by federal or state (or the District of
Columbia) authority; and (iii) have a combined capital and surplus of at least
$150 million as set forth in its most recent published annual report of
condition.
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(b) This Indenture will always have a Trustee who satisfies the
requirements of TIA (S)(S) 310(a)(1) and 310(a)(2). The Trustee is subject to
TIA (S) 310(b). If at any time the Trustee ceases to be eligible in accordance
with the provisions of this section 7.10, it will resign immediately in the
manner and with the effect specified in Section 7.08 hereof.
SECTION 7.11. Preferential Collection of Claims Against the Company. The
--------------------------------- -------------------
Trustee is subject to TIA (S) 311(a), excluding any creditor relationship listed
in TIA (S) 311(b). A Trustee who has resigned or been removed will be subject
to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS;
UNCLAIMED MONEYS
SECTION 8.01. Satisfaction and Discharge of Indenture. (a) If at any
---------------------------------------
time (i) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities outstanding hereunder, as and when the same shall
have become due and payable, or (ii) the Company shall have delivered to the
Trustee for cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 hereof) or (iii) (A) all
such Securities not theretofore delivered to the Trustee for cancellation shall
have become due and payable or are by their terms to become due and payable
within one year or are to be called for redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (B) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee, as trust funds, (i) the entire amount in cash (other than moneys repaid
by the Trustee or any Paying Agent to the Company in accordance with Section
____ hereof), (ii) U.S. Government Obligations maturing as to principal and
interest at such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof sufficient to pay at maturity or upon
redemption, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, all such Securities not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such date
of maturity, as the case may be, and if, in any such case, the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (1) rights
of registration of transfer and exchange of Securities, (2) replacement of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (3) rights
of Holders to receive payments of principal thereof and interest thereon, (4)
rights of the Holders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them,
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(5) the obligation of the Company to maintain an office or agency for payments
on and registration of transfer of the Securities and (6) the rights,
obligations and immunities of the Trustee hereunder), and the Trustee, on demand
of the Company shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture, if:
(A) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound; and
(B) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by this provision
have been complied with.
The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities.
(b) The Company shall be deemed to have paid and discharged the entire
indebtedness on all Securities outstanding on the 91st day after the date of the
deposit referred to in subparagraph (A) below, and the provisions of this
Indenture with respect to the Securities shall no longer be in effect (except as
to (1) rights of registration of transfer, substitution and exchange of
Securities, (2) replacement of apparently mutilated, defaced, destroyed, lost or
stolen Securities, (3) rights of Holders to receive payments of principal
thereof and interest thereon, (4) rights of the Holders as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them, (5) the obligation of the Company to maintain an office or agency for
payments on and registration of transfer of the Securities and (6) the rights,
obligations and immunities of the Trustee hereunder) rights, obligations, duties
and immunities of the Trustee hereunder and the Trustee, at the expense of the
Company, shall at the Company's request, execute proper instruments
acknowledging the same, if:
(A) with reference to this provision, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the
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principal of (and premium if any) and interest on all Securities
outstanding on each date that such principal or interest is due and
payable, together with all other amounts payable by the Company
hereunder;
(B) no Default or Event of Default with respect to the Securities has
occurred and is continuing on the date of such deposit or occurs as
a result of such deposit or at any time during the period ending on
the 91st day after the date of such deposit;
(C) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company or such Guarantor, as the case may be, is a party or by
which it is bound;
(D) the Company or such Guarantor, as the case may be, has delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the defeasance
contemplated by this provision have been complied with; and
(E) the Company or such Guarantor, as the case may be, has delivered to
the Trustee (i) either a private Internal Revenue Service ruling or
an Opinion of Counsel based on a ruling of the Internal Revenue
Service or other change in Federal income tax law to the effect that
the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same
amount and in the manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred,
and (ii) an Opinion of Counsel to the effect that (A) the deposit
shall not result in the Company, the Trustee or the trust being
deemed to be an "investment company" under the Investment Company
Act of 1940, as amended, and (B) such deposit creates a valid trust
in which the Holders of the Securities who are not "insiders" for
purposes of any Bankruptcy Law have the sole beneficial ownership
interest or that the Holders of the Securities have a nonavoidable
first priority security interest in such trust. Notwithstanding the
foregoing, the Company's obligations to pay principal, premium, if
any, and interest on the Securities, and the Guarantors' obligations
under the Guarantees and this Indenture, shall continue until the
Internal Revenue Service ruling or Opinion of Counsel referred to in
clause (i) above is provided with regard to and without reliance
upon such obligations continuing to be obligations of the Company
and the Guarantors, respectively.
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(c) The Company shall be released from its obligations under Sections
3.08, 3.09 and 4.06 through 4.14, 4.16 and 5.01 hereof with respect to the
Securities outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Securities outstanding, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Sections or by
reason of any reference in such Sections to any other provision herein or in any
other document, and such omission to comply shall not constitute an Event of
Default under Section 6.01, but the remainder of this Indenture and the
Securities shall be unaffected thereby. The following shall be the conditions
to application of this subsection (c) of this Section 8.01:
(A) The Company has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purposes of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders (i) cash in an
amount, or (ii) U.S. Government Obligations maturing as to principal
and interest at such times and in such amounts as will insure the
availability of cash or (iii) a combination thereof, sufficient, in
the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay the principal of (and premium, if any) and
interest on all Securities outstanding on each date that such
principal or interest is due and payable, together with all other
amounts payable by the Company hereunder;
(B) No Default or Event of Default shall have occurred and be continuing
on the date of such deposit;
(C) Such covenant defeasance shall not cause the Trustee to have
conflicting interest as defined in Section 310 of the Trust
Indenture Act of 1939 with respect to any securities of the Company;
(D) Such covenant defeasance shall not result in a breach or violation
of, or constitute a Default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(E) The Company shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders
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
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time as would have been the case if such covenant defeasance had not
occurred; and
(F) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the covenant defeasance
contemplated by this provision have been complied with.
SECTION 8.02. Application by Trustee of Funds Deposited for Payment of
--------------------------------------------------------
Securities. Subject to Section 8.04 hereof, and to the subordination provision
- ----------
of this Indenture, all moneys deposited with the Trustee pursuant to Section
8.01 hereof shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the particular Securities for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 8.03. Repayment of Moneys Held by Paying Agent. In connection
----------------------------------------
with the satisfaction and discharge of this Indenture, all moneys then held by
any Paying Agent under the provisions of this Indenture shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
SECTION 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed
-----------------------------------------------------------
for Three Years. Any moneys deposited with or paid to the Trustee or any Paying
- ---------------
Agent for the payment of the principal, premium, if any, or interest on any
Security and not applied but remaining unclaimed for three years after the date
upon which such principal, premium, if any, or interest shall have become due
and payable shall, upon the written request of the Company and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Company by the Trustee or such Paying Agent, and
the Holder of such Security shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. From time to time, when
--------------------------
authorized by a resolution of their respective Boards of Directors, the Company
and the Guarantors, and the Trustee, without notice to or the consent of the
holders of
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the Securities issued hereunder, may amend or supplement this Indenture as
follows:
(1) to cure any ambiguity, omission, defect or inconsistency; or
(2) to comply with Article 5 hereof; or
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities (so long as such uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Internal Revenue Code of
1986, as amended, or in manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code); or
(4) to make any other change that does not adversely affect the rights of
any Securityholder; or
(5) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA; or
(6) to add additional Guarantees of the Securities or to release a
Guarantor in accordance with the terms of this Indenture; or
(7) to add security for the Securities; or
(8) to add to the covenants of the Company for the benefit of the Holders;
or
(9) to surrender any right or power conferred upon the Company.
SECTION 9.02. With Consent of Holders. With the written consent of the
-----------------------
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding, the Company, the Guarantors, and the Trustee may amend
this Indenture or the Securities or may waive future compliance by the Company
with any provisions of this Indenture or the Securities. However, without the
consent of each Securityholder of an outstanding note, a waiver or an amendment
to this Indenture or the Securities may not:
(1) reduce the percentage of principal amount of the Securities whose
Holders must consent to an amendment or waiver; or
(2) make any change to the Stated Maturity of the principal of, premium,
if any, or any interest on the Securities or any Redemption Price thereof or
impair the right to institute suit for the enforcement of any such payment or
make any Security payable in currency or securities other than that stated in
the Security; or
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(3) make any change in Article 10 hereof that adversely affects the rights
of any Holder of Securities or any change to any other Section hereof that
adversely affects the rights, under Article 10 hereof, of any Holder of
Securities; or
(4) waive a default in the payment of the principal of, premium, if any,
or interest on, any Security; or
(5) make any change in the provisions of Sections 4.15, 6.04 or 6.07
hereof; or
(6) make any change to Article 11 hereof that adversely affects the rights
of any Holder of Securities or any change to any other Section hereof that
adversely affects the rights, under Article 11 hereof, of any Holder of
Securities.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
In the event that certain Holders are willing to defer or waive certain
obligations of the Company hereunder with respect to Securities held by them,
such deferral or waiver shall not be deemed to affect any other Holder who
receives the subject payment or performance in a timely manner.
After an amendment or waiver under this Section 9.02 becomes effective, The
Company shall mail to each Holder a notice briefly describing the amendment or
waiver. Any failure of the Company to mail such notices, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment or waiver.
SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article 9 shall comply with the TIA.
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions.
------------------------------------------------------
Until an amendment, waiver or other action by Holders becomes effective, a
consent to it or any other action by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting
Holder's Security, even if notation of the consent, waiver or action is not made
on the Security. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the consent of
the requisite aggregate principal amount of the Securities then outstanding has
been obtained and not revoked.
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After an amendment, waiver or action becomes effective, it shall bind every
Securityholder, except as provided in Section 9.02 hereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then, notwithstanding the first two
sentences of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. Securities
-------------------------------------
authenticated and made available for delivery after the execution of any
supplemental indenture pursuant to this Article 9 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 so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company, with the notation thereon executed by each Guarantor
with respect to its Guarantee thereof, and authenticated and made available for
delivery by the Trustee in exchange for outstanding Securities.
SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee shall
---------------------------------------
sign any supplemental indenture authorized pursuant to this Article 9 if the
supplemental indenture does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing such amendment the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officers' Certificate and Opinion
of Counsel stating that such supplemental indenture is authorized or permitted
by this Indenture.
SECTION 9.07. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article 9, 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 made available for delivery
hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinated to Company Senior Indebtedness.
------------------------------------------------------
Notwithstanding the provisions of Section 6.01 hereof or any other provision
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herein or in the Securities, the Company covenants and agrees, and the Trustee
and each Holder by his acceptance thereof likewise (a) covenants and agrees,
that all payments of the principal, premium, if any, of and interest on the
Securities by the Company shall be subordinated in accordance with the
provisions of this Article Ten to the prior payment in full, in cash or cash
equivalents, of all amounts payable on, under or in connection with Company
Senior Indebtedness and (b) acknowledges that holders of Company Senior
Indebtedness are or shall be relying on the provisions of this Article Ten.
SECTION 10.02. Priority and Payment Over of Proceeds in Certain Events.
-------------------------------------------------------
(a) Upon any payment or distribution of assets or securities of the
Company, as the case may be, of any kind or character, whether in cash, property
or securities, in any dissolution, winding up, total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts payable
on, under or in connection with Company Senior Indebtedness (including any
interest accruing on such Company Senior Indebtedness subsequent to the
commencement of a bankruptcy, insolvency or similar proceeding) shall first be
paid in full in cash, or payment provided for in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders shall be entitled to
receive from the Company any payment of principal of or interest on or any other
amounts in respect of the Securities or distribution of any assets or
securities. Before any payment may be made by the Company of the principal of
or interest on the Securities and upon any such dissolution or winding up or
liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities to which the Holders or the Trustee on their behalf would be
entitled, except for the provisions of this Article Ten, shall be made by the
Company or by any receiver, trustee, in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution first to the holders of all
Company Senior Indebtedness or their representatives to the extent necessary to
pay all Company Senior Indebtedness in full after giving effect to any
concurrent payment or distribution to the holders of Company Senior
Indebtedness.
(b) (i) No direct or indirect payment by or on behalf of the Company of
principal of or interest on the Securities whether pursuant to the terms of the
Securities or upon acceleration or otherwise shall be made if, at the time of
such payment there exists a default in the payment of all or any portion of any
Company Senior Indebtedness (and the Trustee has received written notice thereof
from the Company, one or more holders of Company Senior Indebtedness or from any
trustee, representative or agent therefor), and such default shall not have been
cured or waived or the benefits of this sentence waived by or on behalf of the
holders of such Company Senior Indebtedness; and (ii) during the continuance of
a default (other than a default of the nature described in clause (i) of this
subsection (b))
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pursuant to which the maturity of Company Senior Indebtedness under the New
Credit Agreement ("Significant Company Senior Indebtedness") may be accelerated,
upon the earlier to occur of (A) receipt by the Trustee of written notice from
the trustee or representative for the holders of any Significant Company Senior
Indebtedness (or the holders of at least a majority in principal amount of the
Significant Company Senior Indebtedness then outstanding) or (B) if such non-
payment event of default results from the acceleration of the Securities, the
date of such acceleration, no such payment may be made by the Company upon or in
respect of the Securities for a period ("Payment Blockage Period") commencing on
the earlier of the date of receipt of such notice or the date of such
acceleration and ending 179 days thereafter unless such Payment Blockage Period
shall be earlier terminated by written notice to the Trustee from any trustee,
representative or agent for the holders of the Significant Company Senior
Indebtedness (or the holders of at least a majority in principal amount of the
Significant Company Senior Indebtedness then outstanding). Not more than one
Payment Blockage Period with respect to the Securities may be commenced during
any period of 360 consecutive days. For all purposes of this Section 10.02(b)
and subject to the foregoing, no event of default that existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect to
the Significant Company Senior Indebtedness initiating such Payment Blockage
Period shall be, or be made, the basis for the commencement of a second Payment
Blockage Period by the representative for or the holders of such Significant
Company Senior Indebtedness whether or not within a period of 360 consecutive
days.
(c) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, the Trustee or any Holder shall have received any
payment on account of the principal of or interest on the Securities (other than
as permitted by subsections (a) and (b) of this Section 10.02) at a time when
such payment is prohibited by this Section 10.02 and before all amounts payable
on, under or in connection with Company Senior Indebtedness is paid in full in
cash or cash equivalents, then and in such event (subject to the provisions of
Section 10.08) such payment or distribution shall be received and held in trust
for the holders of Company Senior Indebtedness and shall be paid over or
delivered first to the holders of the Significant Company Senior Indebtedness
remaining unpaid to the extent necessary to pay in full in cash or cash
equivalents such Significant Company Senior Indebtedness and second to the
holders of all other Company Senior Indebtedness to the extent necessary to pay
in full such other Company Senior Indebtedness both in accordance with their
respective terms after giving effect to any concurrent payment or distribution
to such holders.
Nothing contained in this Article Ten 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 Section 6.02 hereof or to pursue any rights or
remedies hereunder against the Company; provided that all Company Senior
--------
Indebtedness
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shall first be paid in accordance with this Article Ten before the Holders or
the Trustee are entitled to receive any payment from the Company of principal of
or interest on the Securities.
Upon any payment or distribution of assets or securities referred to in
this Article Ten, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making any such payment or distribution, delivered to the
Trustee for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Company Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Ten.
SECTION 10.03. Payments to Be Made Prior to Dissolution. Nothing
----------------------------------------
contained in this Article 10 or elsewhere in this Indenture shall prevent (i)
the Company, except under the conditions described in Section 10.02 hereof, from
making payments at any time for the purpose of making such payments of principal
of and interest on the Securities or from depositing with the Trustee any monies
for such payments, or (ii) the application by the Trustee of any monies
deposited with it for the purpose of making such payments of principal of and
interest on the Securities, to the Holders entitled thereto, unless at least one
day prior to the date upon which such payment would otherwise (except for the
prohibitions contained in Section 10.02 hereof) become due and payable, the
Trustee shall have received the written notice provided for in Section
10.02(b)(ii). The Company shall give prompt notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company and, for
purposes of Section 10.02(b) hereof, acceleration of the Securities is deemed to
be sufficient notice to the Trustee for all purposes of this Article Ten.
SECTION 10.04. Rights of Holders of Company Senior Indebtedness Not to Be
----------------------------------------------------------
Impaired. No right of any present or future holder of any Company Senior
- --------
Indebtedness to enforce subordination as herein provided shall at any time or in
any way be prejudiced or impaired by any act or failure to act in good faith by
any such holder, or by any noncompliance by the Company with the terms and
provisions and covenants herein regardless of any knowledge thereof any such
holder may have or otherwise be charged with.
The provisions of this Article Ten are intended to be for the benefit of,
and shall be enforceable directly by, the holders of Company Senior
Indebtedness.
Notwithstanding anything to the contrary in this Article Ten, to the extent
the Holders or the Trustee have paid over or delivered to any holder of Company
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Senior Indebtedness any payment or distribution received on account of the
principal of or interest on the Securities to which any other holder of Company
Senior Indebtedness shall be entitled to share in accordance with Section 10.02
hereof, no holder of Company Senior Indebtedness shall have a claim or right
against the Holders or the Trustee with respect to any such payment or
distribution or as a result of the failure to make payments or distributions to
such other holder of Company Senior Indebtedness.
SECTION 10.05. Authorization to Trustee to Take Action to Effectuate
-----------------------------------------------------
Subordination. Each Holder by his acceptance thereof authorizes and directs the
- -------------
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate, as between the holders of Company Senior Indebtedness and the
Holders, the subordination as provided in this Article Ten and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06. Subrogation. Upon the payment in full, in cash or cash
-----------
equivalents, of all Company Senior Indebtedness, the Holders shall be subrogated
to the rights of the holders of such Company Senior Indebtedness to receive
payments or distributions of assets of the Company made on such Company Senior
Indebtedness until the Securities shall be paid in full; and for the purposes of
such subrogation, no payments or distributions to holders of such Company Senior
Indebtedness of any cash, property or securities to which Holders of the
Securities would be entitled except for the provisions of this Article Ten, and
no payment pursuant to the provisions of this Article Ten to holders of such
Company Senior Indebtedness by the Holders, shall, as between the Company, its
creditors other than holders of such Company Senior Indebtedness and the
Holders, be deemed to be a payment by the Company to or on account of such
Company Senior Indebtedness, it being understood that the provisions of this
Article Ten are solely for the purpose of defining the relative rights of the
holders of such Company Senior Indebtedness, on the one hand, and the Holders,
on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of all
Company Senior Indebtedness, then and in such case, the Holder shall be entitled
to receive from the holders of such Company Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Company
Senior Indebtedness in excess of the amount sufficient to pay in cash or cash
equivalents all such Company Senior Indebtedness due in full.
SECTION 10.07. Obligations of Company Unconditional. Nothing contained in
------------------------------------
this Article Ten or elsewhere in this Indenture or in any Security is intended
to or shall impair, as between the Company and the Holders, the obligations of
the Company, which are absolute and unconditional, to pay to the Holders the
principal
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of and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the
holders of the Company Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture, subject to the
rights, if any, under this Article Ten of the holders of such Company Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
The failure to make a payment on account of principal of, premium, if any,
or interest on the Securities by reason of any provision of this Article Ten
shall not be construed as preventing the occurrence of an Event of Default under
Section 6.01 hereof.
SECTION 10.08. Trustee Entitled to Assume Payments Not Prohibited in
-----------------------------------------------------
Absence of Notice. The Trustee or Paying Agent shall not at any time be charged
- -----------------
with the knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee or Paying Agent, unless and until the
Trustee or Paying Agent shall have received written notice thereof at its notice
address set forth in Section 12.02 hereof from the Company or one or more
holders of Company Senior Indebtedness or from any trustee or agent therefor or
unless the Trustee or Paying Agent otherwise had actual knowledge thereof; and,
prior to the receipt of any such written notice or actual knowledge, the Trustee
or Paying Agent shall be entitled to assume conclusively that no such facts
exist. Unless at least one day prior to the date on which by the terms of this
Indenture any monies are to be deposited by the Company with the Trustee or any
Paying Agent for any purpose (including, without limitation, the payment of the
principal or the interest on any Security), the Trustee or Paying Agent shall,
except where no notice is necessary or where notice is deemed given in Sections
10.02 and 10.03 hereof, have received with respect to such monies the notice
provided for in the preceding sentence, the Trustee or Paying Agent shall have
full power and authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary, which may be received by it on or after such date, except for an
acceleration of the Securities prior to such application. The foregoing shall
not apply to the Paying Agent if the Company is acting as Paying Agent. Nothing
contained in this Section 10.08 shall limit the right of the holders of Company
Senior Indebtedness to recover payments as contemplated by Section 10.02 hereof.
The Trustee or paying agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of such
Company Senior Indebtedness (or a trustee on behalf of, or other representative
of, such holder) to establish that such notice has been given by a holder of
such Company Senior Indebtedness or a trustee or representative on behalf of any
such holder. The
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Trustee shall not be deemed to have any duty to the holders of Company Senior
Indebtedness.
SECTION 10.09. Right of Trustee to Hold Company Senior Indebtedness. The
----------------------------------------------------
Trustee and any Paying Agent shall be entitled to all of the rights set forth in
this Article Ten in respect of any Company Senior Indebtedness at any time held
by it to the same extent as any other holder of such Company Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Paying Agent of any of its rights as such holder.
ARTICLE 11
GUARANTEE OF SECURITIES
SECTION 11.01. Guarantees. Subject to the provisions of this Article 11,
----------
each Guarantor hereby unconditionally, jointly and severally, guarantees, as a
primary obligor and not as a surety, to each Holder of a Security authenticated
and delivered by the Trustee and to the Trustee, its successor and assigns (i)
the due and punctual payment of the principal of, premium, if any, and interest
(including without limitation, interest that, but for the filing of a petition
in bankruptcy with respect to the Company or any Guarantor, would have accrued,
whether or not a claim is allowed against such Person for such interest in any
such bankruptcy proceeding) on such Security, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of, and interest on
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. (S) 362(a)), the
Securities, to the extent lawful, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of such Security and of this Indenture, and (ii) in the case of
any extension of time of payment or renewal of any Securities or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, by acceleration or otherwise. In case of the failure of the Company
punctually to make any such payment of principal or interest, each Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, and as if such payment were made by the Company.
Each Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any such Security or this
Indenture, any failure to enforce the provisions of any such Security or this
Indenture, any waiver, modification or indulgence granted to the Company with
respect thereto, by the Holder of such Security or the Trustee, any extension,
renewal, settlement, compromise, waiver or release in respect of any obligation
of the Company under
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this Indenture or any Security by operation of law or otherwise; any
modification or amendment of or supplement to this Indenture or any Security or
any release, non-perfection or invalidity of any direct or indirect security for
any obligation of the Company under this Indenture or any Security; any change
in the corporate existence, structure or ownership of the Company, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Company or its assets or any resulting release or discharge of any obligation of
the Company contained in this Indenture or any Security; the existence of any
claim, set-off or other rights which such Guarantor may have at any time against
the Company, the Trustee, any Securityholder or any other Person, whether in
connection herewith or any unrelated transactions; provided that nothing herein
--------
shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim; any invalidity or unenforceability relating to or against the
Company for any reason of this Indenture, any Security, or any provision of
applicable law or regulation purporting to prohibit the payment by the Company
of the principal of or interest on any Security or any other amount payable by
the Company under this Indenture; or any other act or omission to act or delay
of any kind by the Company, the Trustee, any Securityholder or any other Person
or any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of such Guarantor's
obligation hereunder. Each Guarantor hereby waives diligence, presentment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Security or
the Indebtedness evidenced thereby and all demands whatsoever, and covenants
that the Guarantees will not be discharged as to any such Security except by
payment in full of the principal thereof and interest thereon and as provided in
Sections 8.01, 11.03 and 11.04 hereof. Each Guarantor's obligations hereunder
shall remain in full force and effect until this Indenture shall have terminated
and the principal of and interest on the Securities and all other amounts
payable by the Company under this Indenture shall have been paid in full. If at
any time any payment of the principal of or interest on any Security or any
other amount payable by the Company under this Indenture is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, such Guarantor's obligations hereunder with respect
to such payment shall be reinstated as though such payment had been due but not
made at such time, and this Article 11, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between such Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
the Guaranties, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (ii) in the event of any declarations of acceleration of such obligations as
provided in Article 6 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by such Guarantor for the purpose
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of the Guaranties. In addition, without limiting the foregoing provisions, upon
the effectiveness of an acceleration under Article 6, the Trustee shall promptly
make a demand for payment on the Securities under each Guaranty provided for in
this Article 11 and not discharged. The obligations of each Guarantor hereby
shall be joint and several.
The Guarantor shall be subrogated to all rights of the Holders against the
Company in respect of any amounts paid by the Guarantor pursuant to the
provisions of the Guarantees or this Indenture; provided, however, that the
-------- -------
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of and
interest on all Securities issued hereunder shall have been indefeasibly paid in
full.
SECTION 11.02. Agreement to Subordinate. Each Guarantor agrees, and each
------------------------
Securityholder by accepting a Security agrees, that all payments pursuant to the
Guaranties by such Guarantor are subordinated in right of payment to the prior
payment in full of all Guarantor Senior Indebtedness, to the same extent and
manner that all payments pursuant to the Securities are subordinated in right of
payment to the prior payment in full of all Company Senior Indebtedness of the
Company. This Section 11.02 is intended to be for the benefit of the holders of
Guarantor Senior Indebtedness.
"Guarantor Senior Indebtedness" means all Indebtedness of the specified
-----------------------------
Guarantor under: (i) its guarantee of the Company's obligations under the New
Credit Agreement and (ii) all additional Indebtedness that is permitted to be
incurred by such Guarantor under the Indenture that is not by its terms
subordinated to or pari passu with the obligations of such Guarantor under this
Guarantee (it being understood that Indebtedness permitted to be incurred by
such Guarantor under the Indenture that is not by its terms subordinated to or
pari passu with the obligations of such Guarantor under its Guarantee shall not
in any event constitute Guarantor Senior Indebtedness if such Indebtedness is
subordinated by its terms to any other Indebtedness that constitutes Guarantor
Senior Indebtedness). Notwithstanding anything to the contrary in the
foregoing, Guarantor Senior Indebtedness shall not include (w) any liability of
such Guarantor for state, local or other taxes, (x) any Indebtedness between or
among such Guarantor, the Company, any other Subsidiary or the Non-Recourse
Subsidiary, (y) any Indebtedness of such Guarantor incurred for the purchase of
goods or materials or for services obtained in the ordinary course of business
or (z) the Company's 14.25% Subordinated Debentures Due 2000.
SECTION 11.03. Release of Guarantor. In the event of a sale or other
--------------------
disposition of all or substantially all of the assets of any Guarantor, by way
of merger, consolidation or otherwise, or all of the Capital Stock of any
Guarantor, then such Guarantor (in the event of a sale or other disposition of
all of the Capital Stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition by way of a merger,
consolidation or otherwise of all or
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substantially all of the assets of such Guarantor) shall be released and
relieved of its obligations under its Guarantee provided that (i) after giving
effect thereto, no Event of Default shall have occurred and be continuing, (ii)
the Company shall agree in writing to apply, and shall thereafter apply, the Net
Cash Proceeds of such sale or other disposition in accordance with Section 4.16
hereof and (iii) such Guarantor has been unconditionally and fully released in
writing from all obligations under guarantees of Indebtedness of the Company,
each Subsidiary and Non-Recourse Subsidiary (including without limitation
Indebtedness under the New Credit Agreement).
Upon delivery by the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other disposition was made
by the Company in accordance with the provisions of this Indenture, the Trustee
shall execute any documents reasonably required in order to evidence the release
of the specified Guarantor from its obligations under its Guarantee. Any
Guarantor not released from its obligations under its Guarantee shall remain
liable for the full amount of principal of and interest on the Securities and
for the other obligations of any Guarantor under the Indenture as provided in
this Article 11.
SECTION 11.04. Guarantor May Consolidate, etc., on Certain Terms. Except
-------------------------------------------------
as set forth in Articles 4 and 5 and Section 11.03 hereof, nothing contained in
this Indenture or in any of the Securities shall prevent any consolidation or
merger of any Guarantor with or into the Company or shall prevent any sale or
conveyance of the property of such Guarantor as an entirety or substantially as
an entirety, to the Company. Upon any such consolidation, merger, sale or
conveyance, the Guaranty given by such Guarantor shall no longer have any force
or effect.
Section 11.05. Limitation on Guarantee. Notwithstanding the other
-----------------------
provisions of this Article 11, each Guarantor and by its acceptance hereof, each
beneficiary hereof, hereby confirms that it is its intention that the guarantee
by such Guarantor pursuant to its Guarantee, together with each other guarantee
by such Guarantor of Participating Indebtedness, not constitute a fraudulent
transfer or conveyance for the 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, each such Person
hereby irrevocably agrees that the obligations of such Guarantor under its
Guarantee and each other guarantee by such Guarantor or Participating
Indebtedness shall be limited, collectively, to the maximum amount as will,
after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any rights to contribution of such Guarantor pursuant to
any agreement providing for an equitable contribution among such Guarantor and
other Affiliates of the Company of payments made by guarantees by such parties,
such maximum amount shall result in the obligations of such Guarantor in respect
of such maximum amount not constituting a fraudulent transfer or conveyance.
Each beneficiary under the Guarantees by the Guarantors, by accepting the
benefits hereof, confirms its intention that, in the event of a
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bankruptcy, reorganization or other similar proceeding of the Company or any
Guarantor in which concurrent claims are made upon such Guarantor hereunder and
under any other guarantee of Participating Indebtedness, to the extent such
claims will not be fully satisfied, each such claimant with a valid claim
against the Company shall be entitled to a ratable share of all payments by such
Guarantor in respect of such concurrent claims. "Participating Indebtedness"
means any Indebtedness of the Company that (i) is permitted to be incurred or to
exist hereunder and guaranteed by a Guarantor pursuant to a Guarantee; (ii) is
not prohibited by the terms of, or is permitted as a result of a consent or
waiver under, the New Credit Agreement and all agreements governing any other
Participating Indebtedness then outstanding; and (iii) contains a limitation of
liability and confirmation of intention regarding ratability of payments on
substantially the terms set forth above.
SECTION 11.06. Execution and Delivery of Guarantees. To evidence its
------------------------------------
Guarantee set forth in this Article 11, each Guarantor hereby agrees that a
notation of such Guarantee substantially in the form of Exhibit II hereto shall
be endorsed on each Security authenticated and delivered by the Trustee on or
after the date such Guarantor becomes a Guarantor and that this Indenture shall
be executed on behalf of the Guarantor by an Officer of such Guarantor by manual
or facsimile signature.
Each Guarantor hereby agrees that its Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guarantee.
If an Officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates the Security on which a
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 11.07. Successors. The Guaranties shall be binding upon each
----------
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Holders and, in the event of any transfer or
assignment of rights by any Holder, the rights and privileges herein conferred
upon the party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
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ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
----------------------------
Indenture limits, qualifies or conflicts with the duties imposes by operation of
subsection (c) of Section 318 of the TIA, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that impose duties on
any Person (including provisions automatically deemed included in an indenture
unless the indenture provides that such provisions are excluded) are a part of
and govern this Indenture, except as, and to the extent, expressly excluded from
this Indenture, as permitted by the TIA.
SECTION 12.02. Notices. Any notice or communication shall be in writing
-------
and delivered in Person or mailed by first-class mail, postage prepaid, or
recognized overnight delivery service, addressed as follows:
if to the Company or any Guarantor:
Dairy Mart Convenience Stores, Inc.
One Vision Drive
Enfield, Connecticut 06082
Attention: Greg Landry
Executive Vice President and Chief Financial Officer
if to the Trustee:
Society National Bank
127 Public Square
15th Floor
Society Center
Cleveland, Ohio 44114-1306
Attention: Corporate Trust Division
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices of communications. The Company
shall notify the holder, if any, of Significant Company Senior Indebtedness of
any such additional or different addresses of which the Company receives notice
from the trustee.
Any notice or communication given to a Securityholder shall be mailed to
the Securityholder at the Securityholder's address as it appears on the
registration
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books of the Registrar and shall be sufficiently given if mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication if mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent or co-
Registrar.
SECTION 12.03. Communication by Holders with Other Holders.
-------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent and
anyone else shall have the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon
--------------------------------------------------
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee, and the Trustee
may rely upon, as conclusive evidence:
(1) an Officers' Certificate (which will include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all the
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which will include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinions. Each
----------------------------------------------
Officers' Certificate and Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
-73-
<PAGE>
(3) a statement that, in the opinion of each such Person, he has made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
-------- -------
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.06. Severability Clause. In case any provision in this
-------------------
Indenture or in the Securities 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 12.07. Rules by Trustee, Paying Agent and Registrar. The Trustee
---------------------------------- ---------
may make reasonable rules for action by or a meeting of Securityholders. The
Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day other than a
--------------
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no principal, premium, if any, or interest
installment shall accrue for the intervening period.
SECTION 12.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
-------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 12.10. No Recourse Against Others. A director, officer, employee
--------------------------
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. Successors. All agreements of The Company in this
----------
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
-74-
<PAGE>
SECTION 12.12. Multiple of 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.
SECTION 12.13. No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 12.14. Table of Contents, Headings, etc. The Table of Contents,
--------------------------------
Cross-Reference Table, and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 12.15. Benefits of Indenture. Except as expressly provided in
---------------------
Article 10 hereof, nothing in this Indenture or in the Securities, 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.
-75-
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
DAIRY MART CONVENIENCE STORES, INC.
By :
-------------------------------
Name:
Title:
GUARANTORS:
DAIRY MART EAST, INC.
By :
-------------------------------
Name:
Title:
DAIRY MART FARMS, INC.
By :
-------------------------------
Name:
Title:
DAIRY MART, INC.
By :
-------------------------------
Name:
Title:
-76-
<PAGE>
CONNA CORPORATION
By :
-------------------------------
Name:
Title:
THE LAWSON COMPANY
By :
-------------------------------
Name:
Title:
D.M. INSURANCE LIMITED
By :
-------------------------------
Name:
Title:
LMC, INC.
By :
-------------------------------
Name:
Title:
SNG OF SOUTHERN MINNESOTA, INC.
By :
-------------------------------
Name:
Title:
-77-
<PAGE>
THE LAWSON MILK COMPANY
By :
-------------------------------
Name:
Title:
GOLDEN STORES, INC.
By :
-------------------------------
Name:
Title:
LAKESIDE WHOLESALE, INC.
By :
-------------------------------
Name:
Title:
QUIK SHOPS, INC.
By :
-------------------------------
Name:
Title:
OPEN PANTRY PROPERTIES, INC.
By :
-------------------------------
Name:
Title:
-78-
<PAGE>
REMOTE SERVICES, INC.
By :
-------------------------------
Name:
Title:
CONVENIENT INDUSTRIES OF
AMERICA, INC.
By :
-------------------------------
Name:
Title:
OSCAR EWING, INC.
By :
-------------------------------
Name:
Title:
CONVENIENT GASOLINE, INC.
By :
-------------------------------
Name:
Title:
JACKSON COUNTY GROCERY CO., INC.
By :
-------------------------------
Name:
Title:
-79-
<PAGE>
GREENWELL GROCERY CO., INC.
By :
-------------------------------
Name:
Title:
CIA FOOD MARTS, INC.
By :
-------------------------------
Name:
Title:
FOOD MERCHANDISERS, INCORPORATED
By :
-------------------------------
Name:
Title:
DAIRY MART CONVENIENCE STORES
OF OHIO, INC.
By :
-------------------------------
Name:
Title:
SOCIETY NATIONAL BANK
By :
-------------------------------
Name:
Title
-80-
<PAGE>
EXHIBIT I
[FORM OF FACE OF SECURITY]
___% Senior Subordinated Note due 2004
No. _________ $____________________ CUSIP__________________
Dairy Mart Convenience Stores, Inc., a Delaware corporation (the
"Company"), which term includes any successor corporation under the Indenture
hereinafter referred to promises to pay to ______________________ or registered
assigns, the principal amount of
________________________________________ Dollars on ___________, 2004.
Interest Payment Dates; ________ and _________, commencing ________, 1994.
Record Dates: __________ and ___________.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
DIARY MART CONVENIENCE
STORES, INC.
By__________________________
[SEAL] Name:_______________________
Title:
Dated: ____________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
SOCIETY NATIONAL BANK
By __________________________________
Name: _______________________________
Title:
A-1
<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
___% Senior Subordinated Note due 2004
1. Interest
--------
Dairy Mart Convenience Stores, Inc., a Delaware corporation ("the
Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. Interest will be payable semi-annually on each
interest payment date, commencing _______, 1994. Interest on the Securities
will accrue from the most recent date to which interest has been paid, or if no
interest has been paid, from ___________, 1994; provided that, if there is no
existing event of Default in the payment of interest and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and interest on overdue
installments of interest, to the extent lawful, at the rate per annum borne by
the Securities.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except defaulted interest)
to the persons who are registered Holders at the close of business on
________________ and ____________ immediately preceding the interest payment
date even if the Security is canceled on registration of transfer or
registration of exchange (other than with respect to the purchase of Securities
pursuant to an offer to purchase Securities made in connection with Sections
3.08 or 3.09 of the Indenture after such record date). Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal, premium, if any, and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by its check payable in such
money. It may mail an interest payment to a Securityholder's registered
address.
3. Paying Agent and Registrar
--------------------------
Initially, the Trustee will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar without notice, other than
notice to the Trustee. The Company or any Subsidiary or an Affiliate of either
of them may act as Paying Agent, Registrar or co-Registrar.
A-2
<PAGE>
4. Indenture
---------
The Company issued the Securities under an Indenture, dated as of
___________, 1994 (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended and as in effect on the date of the Indenture (the "TIA") and as
provided in the Indenture. Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general obligations of the Company limited to
$75,000,000 aggregate principal amount.
5. Guarantee.
---------
This Security is entitled to the benefit of the Guarantees of the
Guarantors on a senior subordinated unsecured basis, which Guarantees are
subject to release. Reference is hereby made to Article 11 of the Indenture and
to the Guarantees endorsed on this Security for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of each of the
Guarantors, the Trustee and the Holders, and to the release of the Guarantees
under specified conditions.
6. Optional Redemption
-------------------
The Securities are redeemable as a whole, or from time to time in part, at
any time on and after ________________, 1999 at the option of the Company at the
following redemption prices (expressed as a percentage of principal) together
with accrued and unpaid interest to the Redemption Date if redeemed in the
twelve-month period ___________ of the years indicated below:
Percentage
----------
1999
2000
2001
2002 and thereafter 100.00
In addition to the optional redemption of the Securities provided for
above, the Company may redeem all or any portion of the Securities, in an
aggregate principal amount thereof not to exceed $20,000,000, upon the
occurrence of Public Equity Offering at a redemption price equal to ______ % of
the principal amount of the Securities to be redeemed plus accrued and unpaid
interest to the Redemption Date;
A-3
<PAGE>
provided, however, that no such optional redemption in connection with an
- -------- -------
Initial Public Equity Offering may be effected on or after the third anniversary
of the Issue Date.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date which may, in the case of a redemption in
connection with Public Equity Offering, be adjusted based solely upon the
timing of the consummation of the Public Equity Offering) to each Holder of
Securities to be redeemed at the Holder's registered address. Securities in
denominations larger than $l,000 of principal amount may be redeemed in part
but only in integral multiples of $1,000 of principal amount.
7. Requirement that the Company Offer to Purchase Securities under Certain
-----------------------------------------------------------------------
Circumstances
- -------------
Subject to the terms and conditions of the Indenture, the Company shall
become immediately obligated to offer to purchase the Securities pursuant to
Section 3.08 of the Indenture after the occurrence of a Change in Control of the
Company at a price equal to 101% of aggregate principal amount plus accrued and
unpaid interest, if any, to the date of purchase. In addition, to the extent
that there are Excess Proceeds from Asset Dispositions which are not applied or
reinvested in accordance with Section 4.16 of the Indenture, the Company will be
obliged to offer to purchase Securities at 100% of principal amount plus accrued
and unpaid interest, if any, in accordance with and to the extent provided in
Section 3.09 of the Indenture.
8. Subordination
-------------
The Securities are subordinated to Company Senior Indebtedness (as defined
in the Indenture). To the extent provided in the Indenture, Company Senior
Indebtedness must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to such
subordination and authorizes the Trustee to give it effect.
9. Denominations: Transfer: Exchange
---------------------------------
The Securities are in registered form, without coupons, in denominations of
$1,000 of principal amount and integral multiples of $l,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any
Securities selected for
A-4
<PAGE>
redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15
days before a selection of Securities to be redeemed.
10. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
11. Amendment: Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities at the time
outstanding; and (ii) certain defaults or noncompliance with certain provisions
may be waived with the written consent of the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 of the Indenture, or to provide for uncertificated Securities in
addition to certificated Securities, or to comply with any requirements of the
Securities and Exchange Commission in connection with the qualification of the
Indenture under the TIA or to reflect a Guarantor ceasing to be liable under its
Guarantee because it is no longer a Subsidiary, or to make any change that does
not adversely affect the rights of any Securityholder.
12. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default in payment of
the principal amount, premium if any, or interest, in respect of the Securities
when the same becomes due and payable, subject, in the case of interest, to the
grace period contained in the Indenture; (ii) failure by the Company to comply
with other agreements in the Indenture or the Securities, subject to notice and
lapse of time; (iii) certain events of acceleration prior to maturity of certain
indebtedness; (iv) certain final judgments which remain undischarged; or (v)
certain events of bankruptcy or insolvency. If an Event of Default occurs and
is continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding, may declare all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the
A-5
<PAGE>
Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) above) if it determines that withholding notice is in their interests.
13. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations implored by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by The Company or its Affiliates and may otherwise deal with The Company
or its Affiliates with the same rights it would have if it were not Trustee.
14. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of The Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
15. Authentication
--------------
This Security shall not be valid until an authorized officer of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side of
this Security.
16. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TBN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
17. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed for
three years, the Trustee or Paying Agent will pay the money back to the Company
at its request. After that, Holders entitled to money must look to the Company
for payment.
A-6
<PAGE>
18. Discharge Prior to Maturity
---------------------------
If the Company deposits with the Trustee or Paying Agent money or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Securities to maturity, the Company will be discharged from the Indenture except
for certain Sections thereof.
19. Successor
---------
When a Successor Person to the Company assumes all the obligations of its
predecessor under the Securities and the Indenture such predecessor shall be
released from those obligations.
20. GOVERNING LAW
-------------
THIS INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
A-7
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ______________________ Signature:_____________________________
(Sign exactly as your name
appears on the other side of
this Security)
Signature
Guarantee:
A-8
<PAGE>
OPTION TO HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Security
purchased by the Company pursuant to section 3.08 ("Change of Control Offer") or
Section 3.09 ("Disposition Offer") of the Indenture, check the applicable boxes:
[_] Change of Control Offer: [_] Disposition Offer:
in whole [_] in whole [_]
in part [_] in part [_]
Amount to be Amount to be
purchased: $___________ purchased: $__________
Dated: ____________ Signature: ____________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature
Guarantee: _____________________________
Social Security Number or
Taxpayer Identification Number:
A-9
<PAGE>
EXHIBIT II
NOTATION OF GUARANTEE
Each of Dairy Mart East, Inc., Dairy Mart Farms, Inc., Dairy Mart, Inc.,
CONNA Corporation, The Lawson Company, D.M. Insurance Limited, LMC, Inc., SNG of
Southern Minnesota, Inc., The Lawson Milk Company, Golden Stores, Inc., Lakeside
Wholesale, Inc., Quik Shops, Inc., Open Pantry Properties, Inc., Remote
Services, Inc., Convenient Industries of America, Inc., Oscar Ewing, Inc.,
Convenient Gasoline, Inc., Jackson County Grocery Co., Inc., Greenwell Grocery
Co., Inc., CIA Food Marts, Inc., Food Merchandisers, Incorporated, and Dairy
Mart Convenience Stores of Ohio, Inc. (collectively, the "Guarantors"), jointly
and severally (subject to, with respect to the joint and several nature of each
Guarantor's obligations hereunder the provisions of Section 11.01 of the
Indenture) guarantee (i) the due and punctual payment of the principal of,
premium, if any, and interest on the Securities whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium and interest, if any, on the Securities, to the
extent lawful, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms set
forth in the Indenture; and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. In case of the failure of the Company punctually to make any such
payment of principal, premium or interest, each Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, and as if such
payment were made by the Company.
The obligations of each Guarantor to the Holders of the Securities and to
the Trustee pursuant to the Guarantees and the Indenture are expressly set forth
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Guarantor Senior Indebtedness, to the extent and in the
manner provided in Article 11 of the Indenture and reference is hereby made to
such Indenture for the precise terms of the Guarantees and the subordination
thereof therein made. In addition, the obligations of the Guarantors pursuant
to the Guarantees and the Indenture may be released in certain circumstances set
forth in Article 11 of the Indenture. Each Guarantor agrees, and each
Securityholder by accepting a Security agrees, to such subordination and, to the
extent applicable, authorizes the Trustee to give it effect.
B-1
<PAGE>
No stockholder, officer, director or incorporator, as such, past, present
or future, of any Guarantor shall have any personal liability under this
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Guarantee.
This Guaranty shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Guaranty is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized representatives.
DAIRY MART EAST, INC.
By :__________________________________
Name:
Title:
DAIRY MART FARMS, INC.
By :__________________________________
Name:
Title:
DAIRY MART, INC.
By :__________________________________
Name:
Title:
B-2
<PAGE>
CONNA CORPORATION
By :__________________________________
Name:
Title:
THE LAWSON COMPANY
By :__________________________________
Name:
Title:
D.M. INSURANCE LIMITED
By :__________________________________
Name:
Title:
LMC, INC.
By :__________________________________
Name:
Title:
SNG OF SOUTHERN MINNESOTA, INC.
By :__________________________________
Name:
Title:
B-3
<PAGE>
THE LAWSON MILK COMPANY
By :__________________________________
Name:
Title:
GOLDEN STORES, INC.
By :__________________________________
Name:
Title:
LAKESIDE WHOLESALE, INC.
By :__________________________________
Name:
Title:
QUIK SHOPS, INC.
By :__________________________________
Name:
Title:
OPEN PANTRY PROPERTIES, INC.
By :__________________________________
Name:
Title:
B-4
<PAGE>
REMOTE SERVICES, INC.
By :__________________________________
Name:
Title:
CONVENIENT INDUSTRIES OF
AMERICA, INC.
By :__________________________________
Name:
Title:
OSCAR EWING, INC.
By :__________________________________
Name:
Title:
CONVENIENT GASOLINE, INC.
By :__________________________________
Name:
Title:
JACKSON COUNTY GROCERY CO., INC.
By :__________________________________
Name:
Title:
B-5
<PAGE>
GREENWELL GROCERY CO., INC.
By :__________________________________
Name:
Title:
CIA FOOD MARTS, INC.
By :__________________________________
Name:
Title:
FOOD MERCHANDISERS,
INCORPORATED
By :__________________________________
Name:
Title:
DAIRY MART CONVENIENCE STORES
OF OHIO, INC.
By :__________________________________
Name:
Title:
