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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
_________________________
(AMENDMENT NO. 7)
DELCHAMPS, INC.
(Name of Subject Company)
DELTA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
JITNEY-JUNGLE STORES OF AMERICA, INC.
(Bidders)
Common Stock, $.01 par value per share
(Title of Class of Securities)
246615 10 8
(CUSIP Number of Class of Securities)
______________________
MICHAEL E. JULIAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
JITNEY-JUNGLE STORES OF AMERICA, INC.
1770 ELLIS AVENUE
SUITE 200
JACKSON, MISSISSIPPI 39204
(601) 965-8600
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
_________________________
with a copy to:
DECHERT PRICE & RHOADS
4000 BELL ATLANTIC TOWER
1717 ARCH STREET
PHILADELPHIA, PA 19103
(215) 994-4000
ATTENTION: WILLIAM G. LAWLOR
DAVID E. SCHULMAN
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This Amendment No. 7 to the Schedule 14D-1 relates to a tender offer by
Delta Acquisition Corporation, an Alabama corporation (the "Offeror") and a
wholly owned subsidiary of Jitney-Jungle Stores of America, Inc., a
Mississippi corporation ("Parent"), to purchase all outstanding shares of
common stock, par value $.01 per share, of Delchamps, Inc., an Alabama
corporation (the "Company"), including the associated preferred share
purchase rights (the "Rights") issued pursuant to the Rights Agreement dated
as of October 14, 1988, as amended, between the Company and the First Alabama
Bank, as Rights Agent (collectively, the "Shares"), at a purchase price of
$30.00 per Share, net to the seller in cash, without interest thereon, upon
the terms and subject to the conditions set forth in the Offer to Purchase,
dated July 14, 1997 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") copies of which were attached as
Exhibits (a)(1) and (a)(2), respectively, to the Schedule 14D-1 filed with
the Securities and Exchange Commission (the "Commission") on July 14, 1997 as
amended by Amendment No. 1 dated July 30, 1997, Amendment No. 2 dated August
4, 1997, Amendment No. 3 dated August 25, 1997, Amendment No. 4 dated August
29, 1997, Amendment No. 5 dated September 9, 1997, and Amendment No. 6 dated
September 11, 1997 (collectively, the "Schedule 14D-1"). The purpose of this
Amendment No. 7 is to amend and supplement Items 4, 10 and 11 of the Schedule
14D-1 as described below.
ITEM 4. Source and Amount of Funds or Other Consideration.
Parent has entered into a definitive purchase agreement under which
Parent expects to issue $200 million principal amount of 10-3/8% Senior
Subordinated Notes due 2007 in a Rule 144A private placement in connection
with the Offer and the Merger. The net proceeds from the offering will be
used to fund a portion of the purchase price of Parent's proposed acquisition
of the Company and related transactions. Reference is made to the press
release issued by Parent on September 11, 1997, and the proposed Form of
Indenture referred to in Item 11 below, copies of which are filed as Exhibits
(a)(17) and (b)(4), respectively, to the Schedule 14D-1 and are incorporated
herein by reference.
ITEM 10. Additional Information.
(f) Parent has reached an agreement with the Federal Trade Commission
that will permit Parent to complete its proposed acquisition of the Company
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Reference is
made to the press release issued by Parent on September 11, 1997, a copy of
which is filed as Exhibit (a)(17) to the Schedule 14D-1 and is incorporated
herein by reference.
ITEM 11. Material to be Filed as Exhibits.
(a)(17) Press Release issued by Parent on September 11, 1997.
(b)(4) Proposed Form of Indenture among Parent, Sub, certain other
subsidiaries of Parent, and Marine Midland Bank, as Trustee, relating to the
issuance and sale of $200,000,000 aggregate principal amount of 10-3/8% Senior
Subordinated Notes due 2007.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
the information set forth in this Amendment No. 7 is true, complete and
correct.
Jitney-Jungle Stores of America, Inc.
By: /s/ Michael E. Julian
---------------------------------
Name: Michael E. Julian
Title: President and Chief Executive Officer
Delta Acquisition Corporation
By: /s/ Michael E. Julian
----------------------------------
Name: Michael E. Julian
Title: President
Dated: September 12, 1997
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Exhibit 99(a)(17)
FOR IMMEDIATE RELEASE
JITNEY-JUNGLE OBTAINS FTC APPROVAL AND PLACES $200 MILLION SENIOR
SUBORDINATED NOTES IN CONNECTION WITH DELCHAMPS ACQUISITION
Jackson, Mississippi, September 11, 1997. Jitney-Jungle Stores of
America, Inc. announced today that it has reached an agreement with the
Federal Trade Commission that will permit Jitney-Jungle to complete its
proposed acquisition of Delchamps, Inc. (NASDAQ NMS:DLCH) under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976. The FTC accepted for
public comment the previously announced agreement containing consent order
and granted early termination of the Hart-Scott waiting period.
In addition, Jitney-Jungle announced that it has entered into a
definitive purchase agreement under which Jitney-Jungle expects to issue $200
million principal amount of 10-3/8% Senior Subordinated Notes due 2007 in a
Rule 144A private placement. The net proceeds from the offering will be used
to fund a portion of the purchase price of Jitney-Jungle's proposed
acquisition of Delchamps and related transactions. As previously announced,
Jitney-Jungle and Delchamps have entered into a merger agreement under which
Jitney-Jungle's subsidiary, Delta Acquisition Corporation, has commenced a
$30 per share cash tender offer for all outstanding shares of Delchamps which
will expire at 5:00 p.m., New York City time, on September 12, 1997, unless
extended.
The closing of the offering of the 10-3/8% Senior
Subordinated Notes is subject to customary terms and conditions for
transactions of this type, including the successful completion of the tender
offer for Delchamps shares. When issued, the 10-3/8% Senior Subordinated
Notes will be guaranteed by Jitney-Jungle's subsidiaries, including Delchamps
upon successful consummation of the tender offer. The 10-3/8% Senior
Subordinated Notes will not be registered under the Securities Act of 1933,
as amended, or applicable state securities laws, and may not be offered or
sold in the United States absent registration under the Securities Act of
1933 and applicable state securities laws or available exemptions from
registration requirements.
# # #
FOR FURTHER INFORMATION CONTACT:
Jitney-Jungle Stores of America, Inc.:
Michael E. Julian, President and Chief Executive Officer
(601) 346-2116
MacKenzie Partners, Inc.:
Grace M. Protos
(212) 929-5500
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EXECUTION COPY
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Jitney-Jungle Stores of America, Inc.
Interstate Jitney Jungle Stores, Inc.
McCarty-Holman Co., Inc.
Southern Jitney Jungle Company
Pump And Save, Inc.
Delta Acquisition Corporation
Delchamps, Inc.
Supermarket Cigarette Sales, Inc.
________________________________________
$200,000,000
10 3/8% SENIOR SUBORDINATED NOTES DUE 2007
__________________________________________
___________________
INDENTURE
DATED AS OF SEPTEMBER ___, 1997
___________________
Marine Midland Bank
Trustee
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Indenture, dated as of September ___, 1997, among Jitney-Jungle Stores of
America, Inc., a Mississippi corporation, (the "Company"), Interstate
Jitney-Jungle Stores, Inc., an Alabama corporation ("Interstate"),
McCarty-Holman Co., Inc., a Mississippi corporation ("McCarty-Holman"),
Southern Jitney Jungle Company, a Mississippi corporation ("Southern"), Pump
And Save, Inc., a Mississippi corporation ("Pump And Save"), Delta
Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc., an
Alabama corporation ("Delchamps") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, McCarty-Holman, Southern,
Pump And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of EXHIBIT D attached hereto, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
holders of the Company's 10 3/8% Senior Subordinated Notes due 2007 (the
"Senior Subordinated Notes") and the new 10 3/8% Senior Subordinated Notes due
2007 (the "New Senior Subordinated Notes" and, together with the Senior
Subordinated Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"1996 Merger" means the transactions contemplated by the 1996 Merger
Agreement.
"1996 Merger Agreement" means the Merger Agreement and Plan of Exchange
and Merger, dated as of November 16, 1995, by and among BRS No. 1, Inc.
(renamed JJ Acquisitions Corp.) and Jitney-Jungle Stores of America, Inc.,
Southern Jitney Jungle Company, McCarty-Holman Co., Inc. and Jitney-Jungle
Bakery, Inc., as amended.
"Acquired Indebtedness" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified
Person and (ii) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"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 purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the voting
securities of a Person shall be deemed to be control. Notwithstanding the
foregoing, in no event will the holders of Indebtedness under or in respect
of the Senior Credit Facility (by reason of holding such Indebtedness) or
Donaldson, Lufkin & Jenrette Securities Corporation or any of their
respective Affiliates be deemed Affiliates of the Company or any of its
Affiliates.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Asset Sale" means: (i) the sale, conveyance, transfer or other
disposition of any assets (including, without limitation, by way of a sale
and leaseback) other than sales of inventory in the ordinary course of
business (provided that the sale, conveyance, transfer or other disposition
of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of Sections
3.09, 4.14 and/or 5.01 hereof and not by the provisions of Section 4.10
hereof) or (ii) the issuance or sale by the Company or any of its Restricted
Subsidiaries of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of clauses (i) and (ii) above, whether in a single
transaction or a series of related transactions for net proceeds in excess of
$1.0 million. Notwithstanding the foregoing: (i) a sale, conveyance, transfer
or other disposition of assets by the Company to a Wholly Owned Restricted
Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary; (ii) an issuance of Equity
Interests by a Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary and (iii) a Restricted Payment
that is permitted by Section 4.07 hereof, in each case, shall not be deemed
to be Asset Sales.
"Attributable Debt" means, in respect of a sale and leaseback
transaction, at the time of determination, the present value (discounted at
the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
state law for the relief of debtors.
"Board of Directors" means, unless otherwise specified, the Board of
Directors of the Company or any authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification.
"Borrowing Base" means 60% of the net book value of all inventory of the
Company and its Restricted Subsidiaries.
"BRS" means Bruckmann, Rosser, Sherrill & Co., Inc.
"BRS Management Agreement" means that certain management agreement,
dated September 8, 1995 between BRS and the Company, as amended on February
29, 1996 and on the date hereof, and as it may be further amended from time
to time.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of corporate stock, (iii) in the case of a partnership, partnership interests
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(whether general or limited) and (iv) any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding
one year and overnight bank deposits, in each case with any lender party to
the Senior Credit Facility or with any domestic commercial bank having
capital and surplus in excess of $500 million and a Keefe Bank Watch Rating
of "B" or better, (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii)
and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above and (v) commercial paper
having the highest rating obtainable from Moody's Investors Service, Inc. or
Standard & Poor's Corporation and in each case maturing within one year after
the date of acquisition.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole to any "person" (as such term is used in
Section 13(d)(3) of the Exchange Act) other than the Principals, their
Related Parties, the DLJ Entities or their Affiliates, (ii) the adoption of a
plan relating to the liquidation or dissolution of the Company, (iii) the
Company consolidates with, or merges with or into, another "person" (as
defined above) in a transaction or series of related transactions in which
the voting stock of the Company is converted into or exchanged for cash,
securities or other property, other than any transaction where (A) the
outstanding voting stock of the Company is converted into or exchanged for
voting stock (other than Disqualified Stock) of the surviving or transferee
corporation and (B) either (1) the "beneficial owners" (as such term is
defined in Rule 13d-3 and 13d-5 under the Exchange Act) of the voting power
of the voting stock of the Company immediately prior to such transaction own,
directly or indirectly through one or more Subsidiaries, not less than a
majority of the total voting power of the voting stock of the surviving or
transferee corporation immediately after such transaction or (2) if
immediately prior to such transaction the Company is a direct or indirect
Subsidiary of any other Person (the "Holding Company"), then the "beneficial
owners" (as defined above) of the voting stock of such Holding Company
immediately prior to such transaction own, directly or indirectly through one
or more Subsidiaries, not less than a majority of the voting power of the
voting stock of the surviving or transferee corporation immediately after
such transaction, (iv) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that
(A) the Principals, their Related Parties, the DLJ Entities or their
Affiliates cease to be the "beneficial owners" (as defined above), directly
or indirectly, of at least 35% of the voting power of the voting stock of the
Company and (B) any "person" (as defined above) becomes the "beneficial
owner" (as defined above) (provided that at any time following the occurrence
of a Public Equity Offering, the term "beneficial owner" shall exclude for
such purpose the effect of Rule 13d-3(d)(1), other than any such effect with
respect to the Warrants) directly or indirectly, of more of the voting power
of the voting stock of the Company than is at the time "beneficially owned"
(as defined above) by the Principals, their Related Parties, the DLJ Entities
and their Affiliates in the aggregate, or (v) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors. For purposes of this definition, any transfer of an
equity interest of an entity that was formed for the purpose of acquiring
voting stock of the Company will be deemed to
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be a transfer of such portion of such voting stock as corresponds to the
portion of the equity of such entity that has been so transferred.
"Class A Preferred Stock" means the Class A Senior Exchangeable
Preferred Stock, par value $0.01 per share, of the Company.
"Class B Preferred Stock" means the Class B Compounding Cumulative
Redeemable Preferred Stock, par value $0.01 per share, of the Company.
"Class C Preferred Stock" means the Class C Compounding Cumulative
Preferred Stock, Series 1 and Series 2, par value $0.01 per share, of the
Company.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means Jitney-Jungle Stores of America, Inc., a Mississippi
corporation ("Jitney-Jungle"), unless and until a successor replaces
Jitney-Jungle in accordance with Article 5 hereof, and thereafter includes
such successor.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included to the extent of the amount of
dividends or distributions paid in cash (or converted into cash) to the
referent Person or a Wholly Owned Restricted Subsidiary thereof that is a
Subsidiary Guarantor, (ii) the Net Income of any Restricted Subsidiary shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is not
at the date of determination permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded and (iv) the cumulative effect of
a change in accounting principles shall be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which
the Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would become an Event of Default.
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"Definitive Notes" means Notes that are in the form of EXHIBIT A-1
attached hereto (but without including the text referred to in footnotes 1
and 3 thereto).
"Delchamps Acquisition" means the Delchamps Merger and the Delchamps
Tender Offer.
"Delchamps Merger" means the merger contemplated by the Delchamps Merger
Agreement.
"Delchamps Merger Agreement" means the Agreement and Plan of Merger,
dated July 8, 1997, by and among the Company, Delta Acquisition Corporation
and Delchamps, Inc.
"Delchamps Tender Offer" means the tender offer contemplated by the
Delchamps Merger Agreement.
"Designated Senior Debt" means (i) for so long as any Indebtedness is
outstanding under the Senior Credit Facility or the Senior Notes, any such
Indebtedness, and (ii) any other Senior Debt permitted under this Indenture
the principal amount of which is $25.0 million or more and that has been
designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date on which the Notes mature.
"DLJ Entities" means DLJ Merchant Banking Partners, L.P., DLJ Offshore
Partners, C.V. and DLJ Merchant Banking Funding, Inc.
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary or non-recurring loss plus any net loss realized
in connection with (a) any Asset Sale (including, without limitation,
dispositions pursuant to sale and leaseback transactions) or (b) the
dispositions of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries (in the case of clauses (a) and (b) above, to
the extent such losses were deducted in computing such Consolidated Net
Income), plus (ii) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net
Income, plus (iii) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether
or not capitalized (including, without limitation, amortization of original
issue discount, non- cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financing, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing
such Consolidated Net Income, plus (iv) non-cash LIFO charges (credits) of
such person and its Restricted Subsidiaries for such period, plus (v)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were
paid in a prior period) and other non-cash charges (excluding any such
non-cash charge to the extent that it represents an accrual of or reserve for
cash charges in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash charges were deducted in computing such
Consolidated
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Net Income, plus (vi) non-recurring severance and transaction costs incurred
in connection with any acquisition, in each case, on a consolidated basis and
determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization and other non-cash charges of, a Restricted Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute EBITDA
only to the extent (and in the same proportion) that the Net Income of such
Restricted Subsidiary was included in calculating the Consolidated Net Income
of such Person.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debentures" means the Company's Class A Exchange Debentures
due 2008 issuable (1) in exchange for outstanding shares of Class A Preferred
Stock at the Company's option on the date of any scheduled dividend payment
with respect to the Class A Preferred Stock and (2) as payment of interest
with respect to outstanding Class A Exchange Debentures due 2008, in each
case, pursuant to the indenture related thereto in the form as in effect on
the date hereof.
"Exchange Offer" means the offer by the Company to Holders to exchange
Senior Subordinated Notes for New Senior Subordinated Notes.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Existing Indebtedness" means (i) up to $75.0 million of Indebtedness
under Capital Lease Obligations of the Company and its Restricted
Subsidiaries in existence on the date hereof, (ii) up to $200.0 million in
aggregate principal amount of Indebtedness of the Company and its Restricted
Subsidiaries under the Senior Notes, (iii) up to $13.0 million in aggregate
principal amount of other Indebtedness of the Company and its Restricted
Subsidiaries (excluding Indebtedness under the Senior Credit Facility) in
existence on the date hereof until such amounts are repaid and (iv) up to
$16.0 million of Acquired Indebtedness in connection with the Delchamps
Acquisition.
"Fixed Charges" means, with respect to any Person for any period, the
sum of (i) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, to the
extent such expense was included in computing Consolidated Net Income
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financing, and net payments (if any)
pursuant to Hedging Obligations), (ii) the consolidated interest expense of
such Person and its Restricted Subsidiaries that was capitalized during such
period, (iii) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by
a Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such Guarantee or Lien is called upon) and (iv) the product
of (a) all dividend payments, whether or not in cash (other than dividend
payments
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to the Company or any Restricted Subsidiary and other than dividend payments
on Equity Interests of the Company and its Restricted Subsidiaries that are
paid solely in additional shares, or by accretion to the liquidation
preference, of such Equity Interests) on any series of preferred stock of
such Person and its Restricted Subsidiaries, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person
and its Restricted Subsidiaries, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the EBITDA of such Person and its Restricted
Subsidiaries for such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that the Company or any
of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event
for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred
stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period. For purposes of making the computation
referred to above, (i) acquisitions that have been made by the Company or any
of its Restricted Subsidiaries, including through mergers or consolidations
and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to
the Calculation Date shall be deemed to have occurred on the first day of the
four-quarter reference period, and (ii) the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall be
excluded, and (iii) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges
will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"Fund" means Bruckmann, Rosser, Sherrill & Co., L.P., a Delaware limited
partnership.
"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 have been approved by a significant
segment of the accounting profession, which are in effect on the date hereof.
"Global Notes" means the Regulation S Global Notes and the Rule 144A
Global Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor Senior Debt" means Senior Debt of a Subsidiary Guarantor.
7
<PAGE>
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
"incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, guarantee or otherwise become liable for or with respect to
the payment of, contingently or otherwise, such Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person and without
duplication, any indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital Lease Obligations or
the balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, if and to the extent any of
the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other
Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Purchasers" means Donaldson, Lufkin & Jenrette Securities
Corporation and Credit Suisse First Boston.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding, relative to the Company
or to the creditors of the Company, as such, or to the assets of the Company,
or (ii) any liquidation, dissolution, reorganization or winding up of the
Company, whether voluntary or involuntary and involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP; provided that an acquisition of assets,
Equity Interests or other securities by the Company for consideration
consisting of common equity securities of the Company shall not be deemed to
be an Investment.
8
<PAGE>
"IRB Indebtedness" means that certain Indebtedness of McCarty-Holman
Co., Inc. pursuant to the Industrial Revenue Bond Issue with the City of
Jackson, Mississippi, dated December 1, 1985, evidenced by the Lease recorded
in Book 3166 at Page 443 of the Land Records of Hinds County, First Judicial
District, Mississippi, including all agreements and documents related
thereto.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no additional
interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, 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 a
security interest in and any filing of or agreement to give any financing
statement (other than with respect to a lease that does not create a Capital
Lease Obligation) under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).
"Management Agreement" means that certain Management Agreement, dated
March 19, 1980, between McCarty-Holman Co., L.P. and the Company, concerning
the management of leased properties.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person and its Restricted Subsidiaries, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however, (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with
(a) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Restricted Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but
not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied
to the repayment of Indebtedness (other than Indebtedness described in clause
(i) of the second paragraph under Section 4.10) secured by a Lien on the
asset or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) and (b) is directly or indirectly liable (as a
guarantor or otherwise); and (ii) no default with respect to which (including
any rights that the holders thereof may have to take enforcement action
against an Unrestricted Subsidiary) would
9
<PAGE>
permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or any of its Restricted Subsidiaries to declare
a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which
the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of Notes pursuant to the Offering
Memorandum.
"Offering Memorandum" means the offering memorandum, dated September 10,
1997, relating to the offering of the Senior Subordinated Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company, that meets the requirements of Section
13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company,
any Subsidiary of the Company or the Trustee.
"Pari Passu Indebtedness" means Indebtedness of the Company or any of
its Restricted Subsidiaries that ranks pari passu in right of payment to the
Notes or any Guarantee thereof.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with
respect to DTC, shall include Euroclear and Cedel).
"payment in full" (together with any correlative phrases e.g. "paid in
full" and "pay in full") means (i) with respect to any Senior Debt other
than Senior Debt under or in respect of the Senior Credit Facility, payment
in full thereof or due provision for payment thereof (x) in accordance with
the terms of the agreement or instrument pursuant to which such Senior Debt
was issued or is governed or (y) otherwise to the reasonable satisfaction of
the holders of such Senior Debt, which shall include, in any Insolvency or
Liquidation Proceeding, approval by such holders individually or as a class,
of the provision for payment thereof, and (ii) with respect to Senior Debt
under or in respect of the Senior Credit Facility, payment in full thereof in
cash or Cash Equivalents.
"Permitted Business" means any of the businesses and any other
businesses related to the businesses engaged in by the Company and its
respective Restricted Subsidiaries on the date hereof.
"Permitted Investments" means (a) any Investments in the Company or in a
Restricted Subsidiary of the Company that is a Subsidiary Guarantor; (b) any
Investments in Cash Equivalents; (c) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary of the Company and
a Subsidiary Guarantor or (ii) such Person is merged, consolidated or
amalgamated with or into, or
10
<PAGE>
transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company that is a
Subsidiary Guarantor; (d) Restricted Investments made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant
to and in compliance with Section 4.10 hereof; and (e) other Investments in
any Person that do not exceed $1.5 million at any time outstanding.
"Permitted Junior Securities" means Equity Interests in the Company and
debt securities of the Company or any Subsidiary Guarantor that are
subordinated to all Senior Debt (and any debt securities issued in exchange
for Senior Debt of the Company or such Subsidiary Guarantor) to substantially
the same extent as, or to a greater extent than, the Notes or Subsidiary
Guarantees, as applicable, are subordinated to Senior Debt pursuant to the
subordination provisions of this Indenture.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease
or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries that is permitted to be incurred by the provisions of this
Indenture; provided, that, except with respect to Capital Lease Obligations,
(i) the principal amount (or accreted value, as applicable) of, or (with
respect to revolving credit Indebtedness) maximum commitment under, such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, as applicable) of, or (with respect to revolving credit
Indebtedness) maximum commitment under, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
premiums and reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and (other than with respect to revolving credit
Indebtedness) has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company and/or by a Subsidiary Guarantor.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means the Class A Preferred Stock, the Class B
Preferred Stock and the Class C Preferred Stock.
"Principals" means (i) the Fund and any of its Affiliates and (ii)
Messrs. W. H. Holman, Jr., W. H. Holman III, Essary, Friou, Bruckmann,
Rosser, Sherrill and Edwards.
"Private Placement Legend" means the legend initially set forth on the
Senior Subordinated Notes in the form set forth in Section 2.06(f) hereof.
"Public Equity Offering" means a public offering of common stock of the
Company.
11
<PAGE>
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Redemption Date" with respect to any Notes, means the date on which
such Notes are redeemed by the Company pursuant to Section 3.07 of this
Indenture.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of September ___, 1997, by and among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from
time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in
the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the
name of the Depositary (as defined) or its nominee, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary
Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note in
the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means (i) any controlling stockholder, general partner,
80% (or more) owned Subsidiary, or spouse or immediate family member (in the
case of an individual) of any Principal or (ii) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners,
owners or Persons holding an 80% or more controlling interest of which
consist solely of one or more Principals and/or such other Persons referred
to in the immediately preceding clause (i).
"Responsible Officer" means any officer within the Corporate Trust
Department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture 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.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Broker Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Restricted Global Notes" means the Regulation S Global Notes and the
Rule 144A Global Notes, all of which shall bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
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<PAGE>
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a permanent global note that contains the
paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 3 to the form of the Note attached hereto as Exhibit A-1, and
that is deposited with and registered in the name of the Depositary, or its
nominee, representing a series of Notes sold in reliance on Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means that certain revolving credit agreement,
dated as of March 5, 1996, as amended and restated on or prior to the date
hereof, by and among the Company, each of the Subsidiary Guarantors and the
lenders named therein, and Fleet Capital Corporation, as successor agent to
Fleet Bank, N.A., including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, as it
may from time to time be amended, renewed, supplemented or otherwise modified
at the option of the parties thereto and any other agreement pursuant to
which any of the Indebtedness, commitments, Obligations, costs, expenses,
fees, reimbursements and other indemnities payable or owing thereunder may be
refinanced, restructured, renewed, extended, increased, replaced or refunded,
as any such other agreements may from time to time at the option of the
parties thereto be amended, supplemented, renewed or otherwise modified, in
each case, whether or not with the same group of lenders.
"Senior Debt" means (i) Indebtedness pursuant to the Senior Credit
Facility, (ii) Indebtedness pursuant to the Senior Notes or guarantees
thereof, as applicable, (iii) the IRB Indebtedness, (iv) any other
Indebtedness permitted to be incurred by the Company or a Restricted
Subsidiary under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity
with or subordinated in right of payment to the Notes or the Subsidiary
Guarantees, as applicable, and (v) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (w) any liability for federal, state, local or other
taxes owed or owing by the Company or any Subsidiary Guarantor, (x) any
Indebtedness of the Company or any Subsidiary Guarantor to any of their
respective Subsidiaries or other Affiliates, (y) any trade payables or (z)
any Indebtedness that is incurred in violation of this Indenture.
"Senior Notes" means the 12% Senior Notes of the Company due 2006.
"Senior Subordinated Notes" means the Company's 10 3/8% Senior
Subordinated Notes due 2007.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
13
<PAGE>
"Significant Restricted Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in
effect on the date hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means any Indebtedness of the Company or any
of its Restricted Subsidiaries which is by its terms expressly subordinated
in right of payment to the Notes, any Subsidiary Guarantee or any other
Indebtedness that is subordinated in right of payment to the Notes or any
Subsidiary Guarantee.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock 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 such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"Subsidiary Guarantors" means each of (i) Interstate Jitney Jungle
Stores, Inc., an Alabama corporation; (b) McCarty-Holman Co., Inc., a
Mississippi corporation; (c) Southern Jitney Jungle Company, a Mississippi
Corporation; (d) Pump And Save, Inc., a Mississippi corporation; (e) Delta
Acquisition Corporation; (f) Supermarket Cigarette Sales, Inc. and (g)
Delchamps and (ii) any other Subsidiary that executes a Subsidiary Guarantee
in accordance with the provisions of this Indenture, and their respective
successors and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the Trust Indenture Act of 1939; provided, however, that in the event
that the Trust Indenture Act of 1939 is amended after such date, "TIA" means,
to the extent required by such amendment, the Trust Indenture Act of 1939 as
so amended.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Global Notes" means one or more Global Notes that do not
and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company (other
than Interstate Jitney Jungle Stores, Inc., McCarty-Holman Co., Inc.,
Southern Jitney Jungle Company, Pump And Save, Inc. and Delchamps, Inc., or
any successor to any of them) that is designated by the Board of Directors as
an Unrestricted Subsidiary pursuant to a Board Resolution and (ii) any
Subsidiary of an Unrestricted Subsidiary; but, in each case, only to the
extent that such Subsidiary: (a) has no
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<PAGE>
Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect
to which neither the Company nor any of its Restricted Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of operating results;
(d) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and (e) has at least one director on its board of directors
that is not a director or executive officer of the Company or any of its
Restricted Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries. Any such designation by the Board of Directors shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an officers'
certificate indicating that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant). The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only
be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof,
(ii) no Default or Event of Default would be in existence immediately
following such designation and (iii) the Company shall have delivered to the
Trustee an officers' certificate indicating that such designation complied
with the foregoing conditions.
"Voting Stock" means, with respect to any Person, any class or series of
capital stock of such Person that is ordinarily entitled to vote in the
election of directors thereof at a meeting of stockholders called for such
purpose, without the occurrence of any additional event or contingency.
"Warrants" means the warrants to purchase up to 15% (on a fully diluted
basis) of the common stock, par value $0.01 per share, of the Company dated
March 5, 1996.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more Wholly
15
<PAGE>
Owned Restricted Subsidiaries of such Person, or by such Person and one or
more Wholly Owned Restricted Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
<S> <C>
"Affiliate Transaction"................................................4.11
"Asset Sale Offer".....................................................4.10
"Change of Control Offer"..............................................4.14
"Change of Control Payment"............................................4.14
"Change of Control Payment Date".......................................4.14
"Covenant Defeasance"..................................................8.03
"Custodian"............................................................6.01
"Depositary"...........................................................2.03
"DTC"..................................................................2.03
"Event of Default".....................................................6.01
"Excess Proceeds"......................................................4.10
"incur"................................................................4.09
"Legal Defeasance".....................................................8.02
"Offer Amount".........................................................3.09
"Offer Period".........................................................3.09
"Paying Agent".........................................................2.03
"Payment Default"......................................................6.01
"Permitted Debt".......................................................4.09
"Purchase Date"........................................................3.09
"Registrar"............................................................2.03
"Repurchase Offer".....................................................3.09
"Restricted Payments"..................................................4.07
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the 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:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, each Subsidiary Guarantor
and any successor obligor upon the Notes.
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All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A-1 or EXHIBIT A-2 attached hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes initially shall be issued in denominations of
$1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on
Rule 144A shall be issued initially in the form of Rule 144A Global Notes,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with a custodian of the Depositary, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Rule 144A Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee as hereinafter provided.
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Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall
be deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee, as custodian for the Depositary, and registered in the name
of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
"40-day restricted period" (as defined in Regulation S) shall be terminated
upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Notes (except to the extent of any beneficial
owners thereof who acquired an interest therein pursuant to another exemption
from registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a Rule 144A Global Note, all as contemplated
by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the
Company certifying as to the same matters covered in clause (i) above.
Following the termination of the 40-day restricted period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation
S Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Notes. The aggregate principal amount of the Regulation S Temporary
Global Notes and the Regulation S Permanent Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Note Custodian,
at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel shall be
applicable to interests in the Regulation S Temporary Global Notes and the
Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Cedel. The Trustee shall have no obligation to notify Holders of
any such procedures or to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only
to Rule 144A Global Notes and Regulation S Permanent Global Notes deposited
with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depositary or the nominee of the
Depositary and (ii) shall be delivered by the Trustee to the
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Depositary or pursuant to the Depositary's instructions or held by the
Trustee as custodian for the Depositary.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the
Note Custodian as custodian for the Depositary or under such Global Note, and
the Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Participants, the operation of customary practices of such Depositary
governing the exercise of the rights of an owner of a beneficial interest in
any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A-1 attached hereto (but without
including the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially
as set forth in EXHIBIT A-1 or EXHIBIT A-2 hereto.
The Trustee shall, upon a written order of the Company signed by an
Officer directing the Trustee to authenticate the Notes, authenticate Notes
for original issue up to the aggregate principal amount stated in paragraph 4
of the Notes. The Trustee shall, upon written order of the Company signed by
an Officer, authenticate New Senior Subordinated Notes for original issuance
in exchange for a like principal amount of Senior Subordinated Notes
exchanged in the Exchange Offer or otherwise exchanged for New Senior
Subordinated Notes pursuant to the terms of the Registration Rights
Agreement. The aggregate principal amount of Notes outstanding at any time
may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may (at the Company's expense) appoint an
authenticating agent acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii)
an office or agency where Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Notes and
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of their transfer and exchange. The Company may appoint one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary (the "Depositary") with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global
Notes. The Company initially appoints the Trustee to act as the Registrar
and Paying Agent with respect to the Definitive Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes,
and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying
Agent. Upon the occurrence of events specified in Section 6.01(f) through
(i) hereof, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER 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 all Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company and/or the Subsidiary Guarantors
shall furnish to the Trustee at least seven (7) Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company and the Subsidiary Guarantors shall otherwise comply with TIA Section
312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Global Note
in accordance with the transfer restrictions set forth in the legend in
subsection (g) of this Section 2.06. Transfers of beneficial interests in the
Global Notes to Persons required to take delivery thereof in the form of an
interest in another Global Note shall be permitted as follows:
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(i) Rule 144A Global Note to Regulation S Global Note. If, at any
time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as custodian
for the Depositary) wishes to transfer its beneficial interest in
such Rule 144A Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in
a Regulation S Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Regulation S
Global Note as provided in this Section 2.06(a)(i). Upon receipt
by the Trustee of (1) instructions given in accordance with the
Applicable Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the
Depositary and the Euroclear or Cedel account to be credited with
such increase, and (3) a certificate in the form of Exhibit B-1
hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of the applicable Rule 144A Global
Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S
Global Note by the principal amount at maturity of the beneficial
interest in the Rule 144A Global Note to be exchanged or
transferred, to credit or cause to be credited to the account of
the Person specified in such instructions, a beneficial interest
in the Regulation S Global Note equal to the reduction in the
aggregate principal amount at maturity of the Rule 144A Global
Note, and to debit, or cause to be debited, from the account of
the Person making such exchange or transfer the beneficial
interest in the Rule 144A Global Note that is being exchanged or
transferred.
(ii) Regulation S Global Note to Rule 144A Global Note. If, at any
time, after the expiration of the 40-day restricted period, an
owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes to transfer its beneficial interest in
such Regulation S Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in
a Rule 144A Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Rule 144A
Global Note as provided in this Section 2.06(a)(ii). Upon receipt
by the Trustee of (1) instructions from Euroclear or Cedel, if
applicable, and the Depositary, directing the Trustee, as
Registrar, to credit or cause to be credited a beneficial
interest in the Rule 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged, such
instructions to contain information regarding the Participant
account with the Depositary to be credited with such increase,
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant
account of the Depositary and (3) a certificate in the form of
EXHIBIT B-2 attached hereto given by the owner of
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such beneficial interest stating (A) if the transfer is
pursuant to Rule 144A, that the Person transferring such
interest in a Regulation S Global Note reasonably believes
that the Person acquiring such interest in a Rule 144A
Global Note is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of
Rule 144A and any applicable blue sky or securities laws
of any state of the United States, (B) that the transfer
complies with the requirements of Rule 144 under the
Securities Act, (C) if the transfer is to an Institutional
Accredited Investor that such transfer is in compliance with the
Securities Act and a certificate in the form of Exhibit C
attached hereto and, if such transfer is in respect of an
aggregate principal amount of less than $100,000, an Opinion of
Counsel acceptable to the Company that such transfer is in
compliance with the Securities Act or (D) if the transfer is
pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and
in accordance with the requirements of the exemption claimed,
such statement to be supported by an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to the
Company and to the Registrar and in each case, in accordance with
any applicable securities laws of any state of the United States
or any other applicable jurisdiction, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be
reduced the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be increased
the aggregate principal amount at maturity of the applicable Rule
144A Global Note by the principal amount at maturity of the
beneficial interest in the Regulation S Global Note to be
exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
applicable Rule 144A Global Note equal to the reduction in the
aggregate principal amount at maturity of such Regulation S
Global Note and to debit or cause to be debited from the account
of the Person making such transfer the beneficial interest in the
Regulation S Global Note that is being exchanged or transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested
only if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, endorsed and containing a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar has
received the following documentation (all of which may be submitted by
facsimile):
(i) in the case of Definitive Notes that are Transfer Restricted
Securities, such request shall be accompanied by the following
additional information and documents, as applicable:
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(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company or any of its
Subsidiaries, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto); or
(B) if such Transfer Restricted Security is being transferred to
a QIB in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certification to
that effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto);
(D) if such Transfer Restricted Security is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto), a
certification substantially in the form of Exhibit C hereto,
and, if such transfer is in respect of an aggregate
principal amount of Notes of less than $100,000, an Opinion
of Counsel acceptable to the Company that such transfer is
in compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(c) Transfer of a Beneficial Interest in a Rule 144A Global Note or
Regulation S Permanent Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial
interest for a Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary (or Euroclear or Cedel, if
applicable), from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Rule 144A Global Note or
Regulation S Permanent Global Note, and, in the case of a
Transfer Restricted Security,
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the following additional information and documents (all of which
may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial
owner, a certification to that effect from such Person (in
substantially the form of EXHIBIT B-4 hereto);
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of EXHIBIT B-4 hereto);
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements of
the Securities Act (and based on an opinion of counsel if
the Company so requests), a certification to that effect
from such Holder (in substantially the form of EXHIBIT B-4
hereto) and a certificate from the applicable transferee (in
substantially the form of EXHIBIT C hereto); or
(D) if such beneficial interest is being transferred in reliance
on any other exemption from the registration requirements of
the Securities Act, a certification to that effect from the
transferor (in substantially the form of EXHIBIT B-4 hereto)
and an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance
with the Securities Act, in which case the Trustee or the
Note Custodian, at the direction of the Trustee, shall, in
accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian,
cause the aggregate principal amount of Rule 144A Global
Notes or Regulation S Permanent Global Notes, as applicable,
to be reduced accordingly and, following such reduction, the
Company shall execute and, the Trustee shall authenticate
and deliver to the transferee a Definitive Note in the
appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest in
a Rule 144A Global Note or Regulation S Permanent Global Note, as
applicable, pursuant to this Section 2.06(c) shall be registered
in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or Indirect
Participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Following any such
issuance of Definitive Notes, the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global
Note to reflect the transfer.
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(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note
may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(e) Transfer and Exchange of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be transferred or
exchanged for a beneficial interest in a Global Note.
(f) Authentication of Definitive Notes in Absence of Depositary. If at
any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days
after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend (the "Private
Placement Legend") in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER
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REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER,
FURNISHED THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND, IN THE CASE OF CLAUSE (b), (c), (d) OR (e), BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth in
(i) above and rescind any restriction on the transfer of
such Transfer Restricted Security upon receipt of a
certification from the transferring holder substantially in
the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof; provided, however, that with
respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note for
a Definitive Note that does not bear the legend set forth in
(i) above, which request is made in reliance upon Rule 144,
the Holder thereof
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shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certification to be
substantially in the form of EXHIBIT B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions
pursuant to Rule 144A or Rule 144 under the Securities Act) in
which the Holder or the transferee provides an Opinion of Counsel
to the Company and the Registrar in form and substance reasonably
acceptable to the Company and the Registrar (which Opinion of
Counsel shall also state that the transfer restrictions contained
in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legend set forth in
(i) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in aggregate principal amount equal to the principal amount
of the Restricted Beneficial Interests tendered for acceptance by
persons that are not (x) broker-dealers, (y) Persons
participating in the distribution of the Notes or (z) Persons who
are affiliates (as defined in Rule 144) of the Company and
accepted for exchange in the Exchange Offer and (ii) Definitive
Notes that do not bear the Private Placement Legend in an
aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange
Offer. Concurrently with the issuance of such Notes, the Trustee
shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the Company
shall execute and the Trustee shall authenticate and deliver to
the Persons designated by the Holders of Definitive Notes so
accepted Definitive Notes in the appropriate principal amount.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in any Global Note has been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal
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amount of Notes represented by such Global Note shall be reduced accordingly
and an endorsement shall be made on such Global Note, by the Trustee or the
Notes Custodian, at the direction of the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 4.10, 4.14 and 9.05 hereto).
(iii) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture,
as the Global Notes or Definitive Notes surrendered
upon such registration of transfer or exchange.
(iv) The Registrar shall not be required:(A) to issue, to
register the transfer of or to exchange Notes during a
period beginning at the opening of fifteen (15)
Business Days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part,
or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding
interest payment date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of
and interest on such Notes and for all other purposes,
and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
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SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by an Officer of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or any Subsidiary
Guarantor or an Affiliate of the Company or any Subsidiary Guarantor holds the
Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Subsidiary Guarantor, or by any Affiliate of the Company or any
Subsidiary Guarantor shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes shown on the
Trustee's register as being so owned shall be so disregarded. Notwithstanding
the foregoing, Notes that are to be acquired by the Company or any Subsidiary
Guarantor or an Affiliate of the Company or any Subsidiary Guarantor pursuant to
an exchange offer, tender offer or other agreement shall not be deemed to be
owned by such entity until legal title to such Notes passes to such entity.
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SECTION 2.10. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by an Officer of the Company. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall upon receipt of a written order
of the Company signed by an Officer authenticate Definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder or which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.07 hereof, the Company may
not issue new Notes to replace Notes that it has redeemed or paid or that have
been delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a written order, signed by an Officer of the Company, the
Company shall direct that cancelled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company or any Subsidiary Guarantor defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall be
at the earliest practicable date but in all events at least five (5) Business
Days prior to the payment date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall fix or cause to be fixed each
such special record date and payment date, and shall promptly thereafter, notify
the Trustee of any such date. At least fifteen (15) days before the special
record date, the Company (or the Trustee, in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in TIA Section 316 (c).
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
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SECTION 2.15. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and if it does
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date (unless a shorter period
is acceptable to the Trustee) an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If the Company is required to make an offer to purchase Notes pursuant to
Section 4.10 or 4.14 hereof, it shall furnish to the Trustee, at least 45 days
before the scheduled purchase date, an Officers' Certificate setting forth (i)
the section of this Indenture pursuant to which the offer to purchase shall
occur, (ii) the terms of the offer, (iii) the principal amount of Notes to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that (a) the Company or one its
Subsidiaries has affected an Asset Sale and there are Excess Proceeds
aggregating more than $15.0 million or (b) a Change of Control has occurred, as
applicable.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such other method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
will cease to accrue on Notes or portions thereof called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed.
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The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued interest, and
Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion shall be
issued upon surrender of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called
for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price plus accrued and unpaid interest and Liquidated
Damages, if any, to such date. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or the
date on which Notes must be accepted for purchase pursuant to Section 4.10 or
4.14, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest and
Liquidated Damages, if any, on all Notes to be redeemed or
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purchased on that date. The Trustee or the Paying Agent shall promptly
return to the Company upon its written request any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary
to pay the redemption price of (including any applicable premium), accrued
interest and Liquidated Damages, if any, on all Notes to be redeemed or
purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or Change
of Control Offer are paid or if the Company has deposited with the Trustee or
Paying Agent money sufficient to pay the redemption or purchase price of, unpaid
and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
or purchased, on and after the redemption or purchase date interest and
Liquidated Damages, if any, shall cease to accrue on the Notes or the portions
of Notes called for redemption or tendered and not withdrawn in an Asset Sale
Offer or Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered). If a Note is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest and Liquidated Damages, if any, shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal and Liquidated Damages, if any, from the redemption or purchase date
until such principal and Liquidated Damages, if any, is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case, at the
rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as provided in the following paragraph, the Notes will not be
redeemable at the Company's option prior to , 2002. Thereafter, the
Notes will be subject to redemption at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on of the years indicated below:
Year Percentage
2002............................................................. 105.188%
2003............................................................. 103.458%
2004............................................................. 101.729%
2005 and thereafter.............................................. 100.000%
(b) Notwithstanding the foregoing, at any time prior to September 15, 2000
the Company may on any one or more occasions redeem up to 33 1/3% of the
aggregate principal amount of Notes originally issued in the Offering at a
redemption price of 110.375% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
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with the net proceeds of one or more Public Equity Offerings; provided that at
least 66 2 3% of the original aggregate principal amount of Notes remains
outstanding immediately after the occurrence of each such redemption; and
provided, further, that each such redemption shall occur within 120 days of the
date of the closing of the Public Equity Offering to which it relates.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 3.09, 4.10 and 4.14 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.09. REPURCHASE OFFERS.
In the event that the Company shall be required to commence an offer to all
Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section 4.10
hereof, an "Asset Sale Offer," or pursuant to Section 4.14 hereof, a "Change of
Control Offer," the Company shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 30 days and no later than
60 days after a Change of Control (unless the Company is not required to make
such offer pursuant to Section 4.14(c) hereof) or an Asset Sale Offer shall be
required to be made pursuant to Section 4.10, as the case may be, and remain
open for a period of twenty (20) Business Days following its commencement and no
longer, except to the extent that a longer period is required by applicable law
(the "Offer Period"). On a date specified in the notice of such Repurchase
Offer, which shall be no later than five (5) Business Days after the termination
of the Offer Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.10
hereof, in the case of an Asset Sale Offer, or 4.14 hereof, in the case of a
Change of Control Offer (the "Offer Amount") or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be
made to all Holders. The notice, which shall govern the terms of the Repurchase
Offer, shall describe the transaction or transactions that constitute the Change
of Control or Asset Sale Offer, as the case may be, and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section 3.09
and Section 4.10 or 4.14 hereof, as the case may be, and the length of time
the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
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(c) that any Note not tendered and accepted for payment shall continue to
accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Liquidated Damages, if any, after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note,
duly completed, or to transfer their interest in such Note by book-entry
transfer, to the Company, the Depositary, or the Paying Agent at the
address specified in the notice not later than the close of business on the
last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depository, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three (3)
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, plus any accrued and unpaid interest and
Liquidated Damages, if any, thereon, and the Company shall promptly issue a new
Note, and the Trustee, shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Repurchase
Offer on the Purchase Date.
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Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Company shall pay all Liquidated Damages, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement. Principal, premium and Liquidated Damages, if any, and interest,
shall be considered paid for all purposes hereunder on the date the Paying Agent
if other than the Company or a Subsidiary thereof holds, as of 10:00 a.m. (New
York City time) money deposited by the Company in immediately available funds
and designated for and sufficient to pay all such principal, premium and
Liquidated Damages, if any, and interest, then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
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SECTION 4.03. COMMISSION REPORTS.
So long as required to do so under the Exchange Act, the Company shall file
with the Commission and distribute to the Holders copies of the quarterly and
annual financial information required to be filed with the Commission pursuant
to the Exchange Act. All such financial information shall include consolidated
financial statements (including footnotes) prepared in accordance with GAAP.
Such annual financial information shall also include an opinion thereon
expressed by an independent accounting firm of established national reputation.
All such consolidated financial statements shall be accompanied by a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its Restricted Subsidiaries. In addition, whether or not
required by the rules and regulations of the Commission, so long as any Notes
are outstanding, the Company shall furnish to the Holders (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that complies with the rules and
regulations of the Commission and that describes the financial condition and
results of operations of the Company and its Restricted Subsidiaries and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company will submit a copy of all
such information and reports to the Commission for public availability (unless
the Commission will not accept such materials) and make such information
available to prospective investors upon written request. In addition, during any
period in which the Company is not subject to the reporting requirements of the
Exchange Act, the Company shall furnish to holders and prospective purchasers of
the Notes the information required by Rule 144A(d)(4) under the Securities Act.
The Company shall at all times comply with TIA Section 314(a).
The financial information to be distributed to Holders of Notes shall be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar, within 120 days after the end
of the Company's fiscal years and within 60 days after the end of each of the
first three quarters of each such fiscal year.
The Company shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information and, if requested by the
Company, the Trustee will deliver such reports to the Holders under this Section
4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company and each Guarantor shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company (which shall be the Saturday
nearest April 30 unless the Company otherwise notifies the Trustee in writing),
an Officers' Certificate stating (i)(A) that, in the course of the performance
by the signatories thereto of their duties as Officers of the Company, they
would normally have knowledge of any Default or Event of Default, (B) whether or
not such signatories know of any Default or Event of Default that occurred
during such period and (C) if any Default or Event of Default has occurred
during such period, the nature of such Default or Event of Default, its status
and what action the Company is taking or proposes to take in respect thereto and
(ii) that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes are prohibited or if
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such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, in connection with the year-end
financial statements delivered pursuant to Section 4.03 hereof, the Company
shall use its best efforts to deliver a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article Four or
Section 5.01 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation. In the event that such
written statement of the Company's independent public accountants cannot be
obtained, the Company shall deliver an Officers' Certificate certifying that it
has used its best efforts to obtain such statements and was unable to do so.
The Company shall, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency all material taxes, assessments and governmental levies,
except such as are contested in good faith and by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Subsidiary 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
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Restricted Subsidiary of the Company
that is a Subsidiary Guarantor) on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including in connection with a merger
or consolidation); (ii) purchase, redeem or otherwise acquire or retire for
value any outstanding Equity Interests of the Company or any Affiliate of the
Company (other than any such Equity Interests owned by the Company or any Wholly
Owned Restricted Subsidiary of the Company that is a Subsidiary Guarantor);
(iii) make any principal
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payment on, or purchase, redeem, defease or otherwise acquire or retire for
value, prior to any scheduled principal payment, any sinking fund date or its
scheduled maturity date, any Indebtedness that is subordinated to the Notes
or the Subsidiary Guarantees; (iv) make any Restricted Investment or (v) make
any payment pursuant to the BRS Management Agreement (all such payments and
other actions set forth in clauses (i) through (v) above being collectively
referred to as "Restricted Payments"), unless:
(a) at the time of and after giving effect to such Restricted
Payment, no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries
after the date hereof (excluding Restricted Payments permitted by clauses
(o), (s)(ii), (x) and (y) of the next succeeding paragraph), is less than
the sum of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the date hereof to the end of the Company's
most recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds (or non-cash
proceeds when converted into cash) received by the Company in the form of
capital contributions or from the issue, sale or exercise since the date
hereof of Equity Interests of the Company or of debt securities of the
Company that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date hereof is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (B) the initial amount of such Restricted
Investment, plus (iv) 50% of the excess, if any, of the cash received upon
the sale or other disposition of a Restricted Investment over the amount
described in clause (iii) above.
The foregoing provisions shall not prohibit: (o) any repurchase, redemption
or retirement for value of capital stock of a Restricted Subsidiary of the
Company deemed to occur upon the merger of such Restricted Subsidiary with or
into the Company or another Wholly Owned Restricted Subsidiary of the Company
within one year following the date on which such merged Restricted Subsidiary
became a Restricted Subsidiary of the Company; (p) acquisition and retirement by
the Company of any Class B Preferred Stock in satisfaction of any claim by the
Company for indemnity pursuant to the 1996 Merger Agreement; (q) retirement of
the Class A Preferred Stock in connection with the issuance by the Company of
the Exchange Debentures; (r) the payment of cash in lieu of the issuance of
(A) fractional shares of common stock upon exercise of the Warrants and (B) any
Exchange Debenture that is not an integral multiple of $1,000 upon any exchange
of Class A Preferred Stock for Exchange Debentures; (s) the amendment of the BRS
Management Agreement to permit the payment of, and the payment of, fees to BRS
or any Affiliate of BRS (i) under the
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BRS Management Agreement after the end of each fiscal quarter in an amount
not to exceed the greater of (a) $250,000 or (b) 1.0% of the Company's EBITDA
for such fiscal quarter (provided, that the total amount of all such payments
shall not exceed in any fiscal year the greater of (x) $1.0 million or (y)
one percent of the Company's EBITDA for such fiscal year) and (ii) in
connection with the Delchamps Acquisition in an amount not to exceed $5.0
million in the aggregate; (t) the payment of dividends on the Company's
capital stock, following the first Public Equity Offering after the date
hereof, of up to 6.0% of the aggregate proceeds to the Company in such Public
Equity Offering, other than a public offering with respect to the Company's
common stock registered on Form S-8; (u) the payment of any dividend within
60 days after the date of declaration thereof, if at said date of declaration
such payment would have complied with the provisions hereof; (v) the
repurchase of the Class A Preferred Stock in accordance with the terms
thereof upon the occurrence of a Change of Control; (w) the redemption of
Exchange Debentures in accordance with the terms thereof upon the occurrence
of a Change of Control; (x) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of other Equity Interests of the
Company (other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement or other acquisition shall be excluded from clause (c) (ii) of the
preceding paragraph; (y) the defeasance, redemption, repurchase, retirement
or other acquisition of Subordinated Indebtedness with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness or the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Stock); provided
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, defeasance, retirement or other acquisition shall be
excluded from clause (c) (ii) of the preceding paragraph; and (z) the
repurchase, redemption, defeasance or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary of
the Company held by any member of the Company's (or any of its Restricted
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date hereof or any
other option plan adopted by the Board of Directors of the Company; provided
that the aggregate price paid for all such repurchased, redeemed, defeased,
acquired or retired Equity Interests shall not exceed $2.0 million in any
twelve-month period plus (i) the aggregate cash proceeds received by the
Company during such twelve-month period from any issuance of Equity Interests
by the Company to members of management of the Company and its Restricted
Subsidiaries and (ii) the proceeds of any insurance policy to the extent
applied toward such repurchase, redemption, defeasance or other acquisition
or retirement for value of such Equity Interests; provided, that with respect
to clause (z) above, no Default or Event of Default shall have occurred and
be continuing immediately after such transaction.
As of the date hereof, all of the Company's Subsidiaries shall be
Restricted Subsidiaries. The Board of Directors may designate any Restricted
Subsidiary (other than Interstate Jitney-Jungle Stores, Inc., McCarty-Holman
Co., Inc., Southern Jitney Jungle Company, Pump And Save, Inc., Delta
Acquisition Corporation, Delchamps, Inc. and Supermarket Cigarette Sales, Inc.)
to be an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this covenant. All such outstanding
Investments will be deemed to constitute Investments in an amount equal to the
greater of (x) the net book value of such Investments at the time of such
designation and (y) the fair market value of such Investments at the time of
such designation. Such designation will only be permitted if such Restricted
Payment would
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be permitted at such time and if such Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee) on the date of the Restricted
Payment of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by the covenant "Restricted Payments" were computed, which calculations
may be based upon the Company's latest available internal financial statements.
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SECTION 4.08. DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i)(a) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries, except (in each case) for such encumbrances
or restrictions existing under or by reason of:
(a) the Existing Indebtedness as in effect on the date hereof;
(b) the Senior Credit Facility, as in effect as of the date
hereof, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings
thereof; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive in the aggregate than those
contained in the Senior Credit Facility, as in effect on the date
hereof;
(c) this Indenture, the Subsidiary Guarantees and the Notes;
(d) applicable law;
(e) any instrument governing Capital Stock or Indebtedness of any
Person acquired by the Company or any of its Restricted Subsidiaries,
as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with, or in contemplation
of, such 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 properties or assets of the Person, so
acquired;
(f) customary non-assignment and subletting provisions in leases
and other contracts entered into in the ordinary course of business
and consistent with past practices;
(g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (iii) above on the property so acquired;
(h) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the agreements governing the Indebtedness being
refinanced;
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(i) contractual encumbrances or restrictions in effect on the
date hereof;
(j) mortgage or construction financing that imposes restrictions
on the real property acquired or improved;
(k) contracts for the sale of assets that include customary
restrictions concerning the disposition of property;
(l) secured indebtedness permitted by this Indenture that limits
the right to dispose of the assets securing the indebtedness; and
(m) encumbrances or restrictions imposed by any amendments to the
contracts, agreements or obligations referred to in clauses
(a) through (l) above if not more restrictive in the aggregate than
under existing contracts.
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SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) and that the Company shall not issue and shall not permit any of
its Restricted Subsidiaries to issue any Disqualified Stock (other than the
Preferred Stock); provided, however, that the Company or its Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been (A) at least 2.25 to 1.0 if such date is prior to September 15, 2000
and (B) 2.50 to 1.0 if such date is on or after September 15, 2000, in each case
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The foregoing provisions will not apply to:
(i) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness and reimbursement obligations in respect of
letters of credit pursuant to the Senior Credit Facility (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries
thereunder) in an aggregate principal amount not to exceed an amount equal
to (x) the greater of (1) the amount of the Borrowing Base and (2) $150.0
million less the aggregate amount of all Net Proceeds of Asset Sales
applied to permanently reduce the total commitments with respect to such
Indebtedness pursuant to the Section 4.10 hereof plus (y) $50.0 million
less any outstanding Indebtedness incurred pursuant to clause (viii) below;
(ii) the incurrence by the Company or any of its Restricted
Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by the Notes, the New Notes and
the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage or construction financing or purchase money obligations, in each
case incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount not to exceed $30.0 million in any fiscal year; provided
that the principal amount (or, in the case of a Capital Lease Obligation,
the amount required to be capitalized on a balance sheet under GAAP) of
such Indebtedness when incurred shall not exceed the purchase price and/or
actual cost of construction or improvement, as the case may be, to which
such incurrence relates;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund, Indebtedness that was permitted by this Indenture to be
incurred;
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(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Wholly Owned Restricted Subsidiaries; provided, however, that
(i) any subsequent issuance or transfer (other than for security purposes)
of Equity Interests that results in any such Indebtedness being held by a
Person other than a Wholly Owned Restricted Subsidiary and (ii) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any
other clause of this paragraph) in an aggregate principal amount at any
time outstanding not to exceed $50.0 million less the amount of any
Indebtedness incurred pursuant to clause (i)(y) of this paragraph;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Indebtedness, provided that such Indebtedness
(A) is not incurred in contemplation of the acquisition to which it relates
and (B) is nonrecourse to the Company and its Restricted Subsidiaries, or
to any of their respective assets (other than the acquired Subsidiary and
its Subsidiaries, or the acquired assets, as applicable);
(x) the incurrence by the Company of Indebtedness pursuant to
Exchange Debentures described under clause (2) of the definition of
Exchange Debentures;
(xi) the Guarantee of any Indebtedness otherwise permitted to be
incurred pursuant to this Indenture; and
(xii) Obligations in respect of performance and surety bonds.
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SECTION 4.10. ASSETS SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Equity Interests issued or sold or
otherwise disposed of; and (ii) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of cash or
Cash Equivalents; provided that the amount of (x) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or any guarantee
thereof) that are assumed by the transferee of any such assets and (y) any notes
or other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are immediately converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision and provided further that
(1) the 75% limitation referred to above shall not apply to any Asset Sale in
which the cash or Cash Equivalents portion of the consideration received
therefor, determined in accordance with the foregoing proviso, is equal to or
greater than what the net after-tax proceeds would have been had such Asset Sale
complied with the aforementioned 75% limitation and (2) the provisions of
clauses (i) and (ii) above shall not apply to any sale or other disposition of
assets required pursuant to a consent order or other agreement entered into by
the Company with the Federal Trade Commission or the Department of Justice in
connection with the Delchamps Acquisition.
Within 435 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or its Restricted Subsidiary, as the case may be, may apply such Net
Proceeds by (i) permanently reducing Indebtedness under the Senior Credit
Facility (and correspondingly reducing commitments with respect thereto) or
other Senior Debt, (ii) investing (or entering into a binding commitment to
invest) in any one or more business, capital expenditure or other tangible
asset, in each case in the same line of business as the Company or its
Restricted Subsidiaries was engaged in on the date hereof or a line of business
reasonably related thereto, (iii) investing (or entering into a binding
commitment to invest) in properties or assets that replace the properties and
assets that are the subject of such Asset Sale and (iv) in the case of a sale of
a store or stores, deeming such Net Proceeds to have been applied to the extent
of any capital expenditures made to acquire or construct another store within
435 days preceding the date of the Asset Sale; provided that if such Net
Proceeds are applied by entering into a binding commitment under clause (ii) or
(iii) above, then the investment contemplated by such commitment shall be made
no later than 45 days following the end of such 435 day period. Pending the
final application of any such Net Proceeds, the Company or its Restricted
Subsidiary, as the case may be, may temporarily reduce Indebtedness under the
Senior Credit Facility or otherwise invest such Net Proceeds in any manner that
is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company shall be required to make an offer
to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds, at a price in cash
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in this Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the aggregate amount of Excess Proceeds, the Company or its Restricted
Subsidiary, as the case may be, may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the aggregate amount of Excess Proceeds,
the
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Trustee shall select the Notes to be purchased in accordance with the terms
of this Indenture. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make any contract, agreement, understanding, loan, advance or Guarantee with,
or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to
the Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $1.0
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction or series of related
Affiliate Transactions complies with clause (i) above and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved by a
majority of the disinterested members of the Board of Directors and (b) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million (other than
Affiliate Transactions in the ordinary course of business of the Company and its
Restricted Subsidiaries between or among the Company or any Restricted
Subsidiary of the Company and any Person providing goods and/or services to the
Company or any Restricted Subsidiary in the ordinary course of business that is
an Affiliate of the Company or such Restricted Subsidiary solely by virtue of
the fact that the Fund, or any Person controlling the Fund, directly or
indirectly controls both the Company or such Restricted Subsidiary and such
Affiliate; provided, however, that such Affiliate Transaction shall comply with
clause (i) above), an opinion as to the fairness to the Company or such
Restricted Subsidiary of such Affiliate Transaction from a financial point of
view issued by an independent nationally recognized investment banking or
appraisal firm experienced in the appraisal or similar review of similar types
of transactions (or if an opinion is unavailable as to the fairness from a
financial point of view of any transaction for which a fairness opinion is not
customarily rendered then an opinion that such transaction meets the
requirements of clause (i) above); provided that (u) payments by Delchamps
pursuant to change of control agreements with certain employees of Delchamps in
an amount not to exceed $13.0 million, (v) payments to McCarty-Holman Co., L.P.
in accordance with the terms of the Management Agreement in an amount not to
exceed $100,000 in each fiscal year, (w) the 18 leases described in the Offering
Memorandum under the caption "Certain Transactions--Leases of Certain Stores and
Facilities," (x)(1) any employment agreement entered into by the Company or any
of its Restricted Subsidiaries and (2) payment of employee benefits, including
bonuses, retirement plans and stock options, in each case, in the ordinary
course of business and consistent with the past practice of the Company or such
Restricted Subsidiary, (y) transactions between or among the Company and/or its
Restricted Subsidiaries and (z) transactions permitted by the provisions of
Section 4.07 hereof, in each case, shall not be deemed Affiliate Transactions.
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SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Pari Passu Indebtedness or Subordinated Indebtedness on
any asset now owned or hereafter acquired by the Company or any of its
Restricted Subsidiaries, or any income or profits therefrom, or assign or convey
any right to receive income therefrom; provided, however that the Company and
its Restricted Subsidiaries may create, incur, assume or suffer to exist a Lien
securing Pari Passu Indebtedness if the Notes are equally and ratably secured
with the obligations so secured until such time as such obligations are no
longer secured by a Lien.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction (other than the
sale and leaseback of newly constructed grocery stores as part of the
development of grocery store sites); provided that the Company and its
Restricted Subsidiaries may enter into a sale and leaseback transaction if
(i) the Company or such Restricted Subsidiary could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to Section 4.09 hereof and (b) incurred a
Lien to secure such Indebtedness pursuant to Section 4.12 hereof, (ii) the gross
cash proceeds of such sale and leaseback transaction are at least equal to the
fair market value (as determined in good faith by the Company's Board of
Directors and set forth in an Officers' Certificate delivered to the Trustee) of
the property that is the subject of such sale and leaseback transaction and
(iii) the transfer of assets in such sale and leaseback transaction is permitted
by, and the Company or such Restricted Subsidiary applies the proceeds of such
transaction in compliance with, Section 4.10 hereof.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder will have the right
to require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at a price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the "Change of
Control Payment"). Within 30 days following any Change of Control, the Company
will mail or cause to be mailed a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes pursuant to the procedures required by Section 3.09 hereof
and described in such notice. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described herein by virtue thereof.
Prior to complying with the provisions of this Section 4.14, but in any
event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Debt, or offer to repay in full all outstanding
Senior Debt and repay the Senior Debt with respect to which such
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offer has been accepted, or obtain the requisite consents, if any, under all
outstanding Senior Debt to permit the repurchase of the Notes required by
this Section 4.14.
On the payment date set forth in the Change of Control Offer (the "Change
of Control Payment Date"), the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (2) deposit with the Trustee or with the Paying Agent
(or, if the Company or any of its subsidiaries is the Paying Agent, separate and
hold in trust) an amount in same-day funds equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered and (3) deliver
or cause to be delivered to the Trustee for cancellation the Notes so accepted
together with an Officers' Certificate stating that such Notes or portions
thereof have been tendered to and purchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note will be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar restructuring.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (a) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (b) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 4.16. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF WHOLLY OWNED
RESTRICTED SUBSIDIARIES.
Notwithstanding any other provisions in this Indenture, except with respect
to the pledge of capital stock of its Subsidiaries pursuant to the Senior Credit
Facility, the Company (a) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Guarantor to any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company that is
a Guarantor), unless (i) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Guarantor and (ii) the cash Net
Proceeds from such transfer, conveyance, sale, lease or other disposition are
applied in accordance with Section 4.10 hereof and (b) will not permit any
Guarantor to issue any of its Equity Interests (other than, if necessary, shares
of its Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company or another Guarantor.
SECTION 4.17. BUSINESS ACTIVITIES.
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The Company shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than (i) the retail and wholesale grocery
business and such business activities as are incidental or reasonably related
thereto, including the sale of liquor and the retail gasoline business, and
(ii) such other businesses as the Company or its Restricted Subsidiaries are
engaged in on the date hereof.
SECTION 4.18. ADDITIONAL GUARANTEES.
If the Company or any of its Restricted Subsidiaries shall, after the
date of this Indenture, transfer or cause to be transferred, in one
transaction or a series of related transactions, any assets, businesses,
divisions, real property or equipment having an aggregate fair market value
(as determined in good faith by the Board of Directors) in excess of $1.0
million to any Subsidiary that is not a Guarantor, or if the Company or any
of its Restricted Subsidiaries shall acquire another Subsidiary having total
assets with a fair market value (as determined in good faith by the Board of
Directors) in excess of $1.0 million, then such transferee or acquired
Subsidiary shall (a) execute a Guarantee in substantially the form of Exhibit
D hereto, (b) execute and deliver to the Trustee a supplemental indenture in
the form of Exhibit E hereto pursuant to which such transferee or acquired
Subsidiary shall unconditionally guarantee all of the Company's obligations
under the Notes on the terms set forth in such supplemental indenture and (c)
deliver to the Trustee an Opinion of Counsel satisfactory to the Trustee that
such Guarantee and such supplemental indenture have been duly executed and
delivered by such transferee or acquired Subsidiary. Notwithstanding the
foregoing, if such transferee or acquired Subsidiary has been properly
designated as an Unrestricted Subsidiary in accordance with this Indenture,
then for so long as it continues to constitute an Unrestricted Subsidiary
that transferee or acquired Subsidiary shall not be required to execute a
Guarantee or supplemental indenture or deliver to the Trustee an Opinion of
Counsel in accordance with clause (c) above.
SECTION 4.19. PAYMENT FOR CONSENTS.
Neither the Company nor any of its Subsidiaries 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 Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or the Notes unless such consideration is offered to be
paid or is paid to all Holders of the Notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 4.20. NO SENIOR SUBORDINATED DEBT.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Notes. No Subsidiary Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to the Senior Debt of such
Subsidiary Guarantor and senior in any respect in right of payment to the
Subsidiary Guarantees. For purposes of this Section 4.20, no Indebtedness
shall be deemed to be subordinated in right of payment to any other
Indebtedness solely by reason of the fact that such other Indebtedness is
secured by a Lien or is subject to a Guarantee.
SECTION 4.21. NO RESTRICTIONS ON CONSUMMATION OF DELCHAMPS ACQUISITION.
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Notwithstanding any provision contained herein to the contrary, this
Indenture shall not prohibit the consummation of the Delchamps Acquisition
and the transactions related thereto in accordance with the terms set forth
in this Offering Memorandum and in the tender offer statement on Schedule
14D-1, as filed with the Commission on July 14, 1997 and as subsequently
amended or supplemented, naming Delchamps, Inc. as the subject company.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
Except as otherwise provided in Section 4.21, the Company may not
consolidate or merge with or into (whether or not the Company is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets in one or
more related transactions to, another Person unless (a) the Company is the
surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (the "Successor") is a corporation organized or existing under the laws
of the United States, any state thereof, the District of Columbia or a
territory thereof; (b) the Successor assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee; (c) immediately
after such transaction no Default or Event of Default exists; (d) the
Successor will, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09 hereof and (e) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to such transaction have
been complied with. The foregoing will not prohibit (i) any consolidation or
merger of, or transfer of all or part of the property and assets of, any
Restricted Subsidiary with or to the Company or any Guarantor or (ii) the
Merger.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to the "Company" shall refer instead to the successor corporation and not to
the Company), and shall exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person had been
named as the Company herein; provided, that, (i) solely for the purposes of
computing Consolidated Net Income for purposes of clause (b) of the first
paragraph of Section 4.07 hereof, the Consolidated Net Income of any person
other than the Company and its Subsidiaries shall be included only for
periods subsequent to the effective time of such merger, consolidation,
combination or transfer of assets; and (ii) in the case of any sale,
assignment, transfer, lease, conveyance, or other disposition of less than
all of the assets of the predecessor Company, the predecessor Company shall
not be released or discharged from the obligation to pay the principal of or
interest and Liquidated Damages, if any, on the Notes.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an Event of Default:
(a) default for 30 days in the payment when due, upon redemption,
acceleration or otherwise, of interest on, or Liquidated Damages with
respect to, the Notes;
(b) default in payment when due of the principal of or premium, if any, on
the Notes;
(c) failure by the Company for 30 days after receipt of written notice
from the Trustee or from Holders of at least 25% of the aggregate
principal amount of the Notes then outstanding to comply with the
provisions described under Sections 4.07, 4.09, 4.10 or 4.14 hereof;
(d) failure by the Company for 60 days after receipt of written notice
from the Trustee or from Holders of at least 25% of the aggregate
principal amount of the Notes then outstanding to comply with any of
its other agreements in this Indenture or the Notes;
(e) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries (other than Indebtedness
owed to the Company or its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date
hereof, if both (a) such default either (1) results from the failure
to pay any such Indebtedness at its stated final maturity (after
giving effect to any applicable grace periods) or (2) relates to an
obligation other than the obligation to pay principal of any such
Indebtedness at its stated maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due
prior to its stated maturity and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at stated final
maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $15.0 million or
more;
(f) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments (other than any judgments as to which a reputable
insurance company has accepted liability) aggregating in excess of
$15.0 million, which judgments are not paid, discharged, bonded or
stayed for a period of 60 days after their entry;
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(g) except as permitted by this Indenture, any Subsidiary Guarantee 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 on behalf of any Subsidiary Guarantor,
shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and
(h) the Company or any Significant Restricted Subsidiary or group of
Restricted Subsidiaries that, together, would constitute a Significant
Restricted Subsidiary, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case in which it is the debtor,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability generally to pay its debts
as they become due; or
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Restricted Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Restricted
Subsidiary in an involuntary case in which any of them is
the debtor,
(ii) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Restricted
Subsidiary or for all or substantially all of the property
of any of the foregoing, or
(iii) orders the liquidation of the Company or any
Significant Restricted Subsidiary or group of
Restricted Subsidiaries that, together, would
constitute a Significant Restricted Subsidiary,
and the order or decree remains unstayed and in effect for
60 consecutive days.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately; provided,
however, that, so long as any Designated Senior Debt shall be
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outstanding, no such acceleration shall be effective until the earlier of (i)
acceleration of any such Designated Senior Debt or (ii) five business days
after the giving of written notice to the Company and the representatives
under the Designated Senior Debt of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default specified in clauses (h) or (i)
of Section 6.01, all outstanding Notes will become due and payable without
further action or notice. In the event of any Event of Default specified in
clause (e) of Section 6.01, such Event of Default and all consequences
thereof (including, without limitation, any acceleration or resulting payment
default) shall be annulled, waived and rescinded, automatically and without
any action by the Trustee or the Holders of the Notes, if within 20 days
after such Event of Default arose (x) the Indebtedness or guarantee that is
the basis for such Event of Default has been discharged in a manner that does
not violate the terms of this Indenture or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to
the optional redemption provisions of Section 3.07(a) hereof, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs prior to September 15, 2002 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to
September 15, 2002, then the amount payable in respect of such Notes for
purposes of this paragraph for each of the twelve-month periods beginning on
September 15 of the years indicated below shall be set forth below, expressed
as percentages of the principal amount that would otherwise be due but for
the provisions of this sentence, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of payment:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
1997................................................... 110.375%
1998................................................... 109.338%
1999................................................... 108.300%
2000................................................... 107.263%
2001................................................... 106.225%
</TABLE>
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note 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. All
remedies are cumulative to the extent permitted by law.
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SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
hereunder except a continuing Default or Event of Default in the payment of
the principal of or interest on any Note held by a non-consenting Holder
(including in connection with an offer to purchase); provided that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders or that
may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper which is not inconsistent with any such
direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture,
the Subsidiary Guarantees or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from
the Company;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, interest,
and Liquidated Damages, if any, on the Note,
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on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money or other securities or property payable or deliverable upon the
conversion or exchange of the Notes or on any such claims 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 to the Trustee
any amount due to 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. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. 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
Notes or the rights of any Holder, 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 Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest, and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes 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 a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture
or the TIA and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) 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 Officers' Certificates or Opinions of
Counsel furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
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(iii) 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.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity reasonably satisfactory to it against any loss, liability
or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture; provided that the Trustee's conduct
does not constitute willful misconduct or negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company. A permissive right granted to the Trustee hereunder
shall not be deemed an obligation to act.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Company or any Holder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting
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interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of
this Indenture, shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to all
Holders a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders. The Trustee
shall not be deemed to have actual knowledge of a Default or an Event of
Default hereunder, except in the case of a Default or an Event of Default
under Section 6.01(a) or 6.01(b) at such time as the Trustee is also the
Paying Agent, until a Responsible Officer of the Trustee receives written
notice thereof from the Company or any Holders that such a Default or an
Event of Default has occurred.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 1 beginning with the May 1 first following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders a brief report dated as of such reporting
date that complies with TIA Section 313(a) (but if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
Section 313(b). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA Section 313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder as
the Trustee and the Company may agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
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The Company shall indemnify the Trustee against, and hold it harmless
from, any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel not to exceed one law firm. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or 6.01(i) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by
so notifying the Trustee and the Company in writing. The Company may remove
the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor
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Trustee takes office, the Holders of a majority in principal amount of the
then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
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 Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of 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 all Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided, that all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for
in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee may authenticate such Notes either in the name of
the predecessor trustee or in the name of the successor to the Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America
or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of
at least $50 million as set forth in its most recent published annual report
of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution, at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and its Subsidiaries shall,
subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their respective obligations
with respect to all outstanding Notes on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Notes and this Indenture (and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.04 hereof, and as
more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due,
(b) the Company's obligations with respect to such outstanding Notes under
Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.03, 4.04,
4.05, 4.07, 4.08, 4.09 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 4.19,
11.03 and Article 5 hereof with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for
the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the
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outstanding Notes, the Company and its Subsidiaries may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby.
In addition, upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Sections 6.01(f), 6.01(g),
6.01(h) and 6.01(i) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
SECTION 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
if any, and interest on the outstanding Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be;
(b) the Company must specify whether the Notes are being defeased
to maturity or to a particular redemption date;
(c) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (1) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (2) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, subject to customary assumptions and exclusions, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(d) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(e) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit
or the incurrence of Indebtedness all or a
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portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence) or insofar
as Sections 6.01(h) or 6.01(i) hereof is concerned, at any time in the
period ending on the 91st day after the date of deposit;
(f) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(g) on or prior to the 91st day following the deposit, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that, subject to customary assumptions and exclusions, after the
91st day following the deposit, the trust funds will not be subject to any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that, subject to
customary assumptions and exclusions, all conditions precedent provided for
or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
SECTION 8.06. REPAYMENT TO COMPANY.
(a) Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof),
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are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
(b) The Trustee shall promptly pay to the Company, after written request
therefor, any money held at such time in excess of the amounts required to pay
any of the Company's Obligations then owing with respect to the Notes.
(c) Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal, or premium, if any, or interest that remains unclaimed
for two years after such principal or premium, if any, or interest became due
and payable and any such money held by the Company in trust shall be discharged
from such trust, and, thereafter, Holders entitled to the money must look to the
Company for payment of such money as secured creditors and all liability of the
Trustee and the Paying Agent with respect to such money shall cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, shall, at the expense of the Company, cause to be published
once, in The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
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SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided that, if the
Company makes any payment of principal of, premium, if any, or interest on
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Guarantees or the
Notes without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's obligations to the
Holders in the case of a merger, consolidation or sale of assets
pursuant to this Indenture;
(d) to add Guarantees with respect to the Notes;
(e) to provide security for the Notes;
(f) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal
rights hereunder of any Holder; or
(g) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 9.06 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Guarantees and the
Notes with the consent of the Holders of at least a majority in principal amount
of the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the
Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of
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evidence reasonably satisfactory to the Trustee of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental Indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
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 or waiver, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture,
Guarantee or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
any existing Default or compliance in a particular instance by the Company with
any provision of this Indenture, the Guarantees or the Notes. However, without
the consent of each Holder affected, an amendment or waiver may not (with
respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other
than provisions relating to Sections 4.10 and 4.13 hereof);
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of or premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any Note (other than a
payment required by Section 4.10 and/or 4.13 hereof); or
(h) make any change in Section 6.04 or 6.07 hereof or in this
Section 9.02 or in Section 9.01 hereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
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Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as then
in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent to any
amendment, supplement or waiver or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding 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 give such consent to such
amendment, supplement or waiver or to revoke any consent previously given or to
take any such action, 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 NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for all Notes
may issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, in addition to the documents required by
Section 10.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental Indenture is authorized or
permitted by this Indenture.
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ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder of Notes by accepting a Note agrees,
that the Indebtedness evidenced by the Note is subordinated in right of payment,
to the extent and in the manner provided in this Article 10, to the prior
payment in full of all Senior Debt, whether outstanding on the date hereof or
hereafter incurred.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities, the holders of Senior Debt will be entitled to receive
payment in full in cash of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt) before the Holders will be entitled to
receive any payment with respect to the Notes, and until all Obligations with
respect to Senior Debt are paid in full in cash, any distribution to which the
Holders would be entitled shall be made to the holders of Senior Debt (except
that Holders may receive Permitted Junior Securities and payments made from the
trust described under Article 8 hereof).
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company shall not make any payment upon or in respect of the Notes
(except in Permitted Junior Securities or from the trust described under Article
8 hereof) if (i) a default in the payment of the principal of, premium, if any,
or interest on Designated Senior Debt occurs and is continuing beyond any
applicable period of grace or (ii) any other default occurs and is continuing
with respect to Designated Senior Debt that permits holders of such Designated
Senior Debt to accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the Company or the representative of
the holders of such Designated Senior Debt. Payments on the Notes may and shall
be resumed (a) in the case of a payment default, upon the date on which such
default is cured or waived and (b) in case of a nonpayment default, the earlier
of (x) the date on which such nonpayment default is cured or waived, (y) 179
days after the date on which the applicable Payment Blockage Notice is received,
in each case, unless the maturity of any Designated Senior Debt has been
accelerated or (z) the date on which such Payment Blockage Period (as defined
below) shall have been terminated by written notice to the Trustee from the
representative of the holders of Designated Senior Debt initiating such Payment
Blockage Period. During any consecutive 360-day period, the aggregate number of
days in which payments due on the Notes may not be made as a result of
nonpayment defaults on Designated Senior Debt (a "Payment Blockage Period")
shall not exceed 179 days, and there shall be a period of at least 181
consecutive days in each consecutive 360-day period during which no Payment
Blockage Period is in effect. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for a subsequent Payment Blockage Notice unless
such default shall have been cured or waived for a period of not less than 90
days.
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SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Debt of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder of a Note receives any payment
of any Obligations with respect to the Notes at a time when such payment is
prohibited by Section 10.03 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders of the Notes or
the Company or any other Person money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 10, except if such payment is
made as a result of the willful misconduct or gross negligence of the Trustee.
SECTION 10.06. NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article, which notice shall specifically
refer to this Article 10, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Debt as provided in this Article.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid in full,
Holders of the Notes shall be subrogated (equally and ratably with all other
pari passu indebtedness) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of the Notes have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior
Debt that otherwise would have been made to Holders of the Notes is not, as
between the Company and Holders of the Notes, a payment by the Company on the
Notes.
SECTION 10.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of the Notes and
holders of Senior Debt. Nothing in this Indenture shall:
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(1) impair, as between the Company and Holders of the Notes, the
obligations of the Company, which are absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of the Notes and creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any Holder of the Notes from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of the Notes.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt, or any of them, may, at any time and from time to time,
without the consent of or notice to the Holders of the Notes, without incurring
any liabilities to any Holder of any Notes and without impairing or releasing
the subordination and other benefits provided in this Indenture or the
obligations of the Holders of the Notes to the holders of the Senior Debt, even
if any right of reimbursement or subrogation or other right or remedy of any
Holder of Notes is affected, impaired or extinguished thereby, do any one or
more of the following:
(1) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any Senior Debt, any security therefor or guaranty thereof or any
liability of any obligor thereon (including any guarantor) to such holder,
or any liability incurred directly or indirectly in respect thereof or
otherwise amend, renew, exchange, extend, modify, increase or supplement in
any manner any Senior Debt or any instrument evidencing or guaranteeing or
securing the same or any agreement under which Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing Senior Debt or any liability of any obligor
thereon to such holder, or any liability incurred directly or indirectly in
respect thereof;
(3) settle or compromise any Senior Debt or any other liability of
any obligor of the Senior Debt to such holder or any security therefor or
any liability incurred directly or indirectly in respect thereof and apply
any sums by whomsoever paid and however realized to any liability
(including, without limitation, Senior Debt) in any manner or order; and
(4) fail to take or to record or to otherwise perfect, for any reason
or for no reason, any lien or security interest securing Senior Debt by
whomsoever granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or any guarantor or any
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other person, elect any remedy and otherwise deal freely with any obligor
and any security for the Senior Debt or any liability of any obligor to such
holder or any liability incurred directly or indirectly in respect thereof.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of the Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of the Notes for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt 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
10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least three Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Notes to violate this Article, which notice shall specifically refer to this
Article 10. Only the Company or a Representative may give the notice. Nothing
in this Article 10 shall impair the claims of, or payments to, the Trustee under
or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes, including without limitation the timely filing of a
claim for the unpaid balance of the Notes held by such Holder in the form
required in any Insolvency or Liquidation Proceeding and causing such claim to
be approved. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time of such claim, the
representatives of the Designated Senior Debt, including debt under the Senior
Credit Facility, are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
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SECTION 10.13. AMENDMENTS.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the legal rights of
Holders.
ARTICLE 11
GUARANTEE OF NOTES
SECTION 11.01. SUBSIDIARY GUARANTEE.
Subject to Section 11.06 hereof, each of the Subsidiary Guarantors hereby,
on a full, unconditional, joint and several, unsecured basis guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes and the Obligations of the Company hereunder and
thereunder, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any, (to the
extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes, and all other payment Obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full and performed, all in accordance with the terms hereof and thereof; and (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so
guaranteed for whatever reason the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately. An Event of Default under this
Indenture or the Notes shall constitute an event of default under the Subsidiary
Guarantees, and shall entitle the Holders to accelerate the Obligations of the
Subsidiary Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company. The Subsidiary Guarantors hereby agree that their
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by complete performance of
the Obligations contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Subsidiary Guarantors, or any Custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Subsidiary Guarantors,
any amount paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed hereby. Each Subsidiary
Guarantor further agrees that, as between the Subsidiary Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Obligations guaranteed
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hereby may be accelerated as provided in Article 6 for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration 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 the
Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The
Subsidiary Guarantors shall have the right to seek contribution from any
non-paying Subsidiary Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Subsidiary Guarantees.
SECTION 11.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form of Exhibit D shall be endorsed by an Officer of such
Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Subsidiary Guarantor, by
manual or facsimile signature, by an Officer of such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.
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SECTION 11.03. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Except as set forth in Articles 4 and 5, nothing contained in this
Indenture or in the Notes shall prevent (i) any consolidation or merger of a
Subsidiary Guarantor with or into the Company or any other Subsidiary Guarantor,
(ii) any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety, to the Company or any other Subsidiary
Guarantor or (iii) the Merger.
(b) Except as set forth in Article 4, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into a Person or Persons other than the Company or any other
Subsidiary Guarantor (in each case, whether or not affiliated with the
Subsidiary Guarantor), or successive consolidations or mergers in which a
Subsidiary Guarantor or its successor or successors shall be a party or parties,
or shall prevent any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety, to a Person other than
the Company or any other Subsidiary Guarantor (in each case, whether or not
affiliated with the Subsidiary Guarantor) authorized to acquire and operate the
same; provided, however, that each Subsidiary Guarantor hereby covenants and
agrees that: (i) upon any such consolidation, merger, sale or conveyance, the
Subsidiary Guarantee endorsed on the Notes, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by such Subsidiary Guarantor, shall be expressly assumed (in the event
that the Subsidiary Guarantor is not the surviving Person in the merger), by
supplemental indenture substantially in the form of Exhibit E hereto, executed
and delivered to the Trustee, by the Person formed by such consolidation, or
into which the Subsidiary Guarantor shall have been merged, or by the Person
which shall have acquired such property; (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists; and (iii) the Company
would be permitted, immediately after giving effect to such transaction, to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09. The foregoing will not prohibit
(i) any consolidation or merger of a Guarantor with or into the Company or any
other Guarantor, (ii) any sale or conveyance of the property of a Guarantor as
an entirety or substantially as an entirety, to the Company or any other
Subsidiary Guarantor or (iii) the Merger.
(c) In the case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and substantially in the form of Exhibit E hereto,
of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All of the
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such guarantees had been issued at the date of the execution hereof.
SECTION 11.04. RELEASES FOLLOWING SALE OF ASSETS, MERGER, SALE OF CAPITAL
STOCK ETC..
Concurrently with any sale of assets (including, if applicable, all of the
Capital Stock of any Subsidiary Guarantor by merger or otherwise), any Liens in
favor of the Trustee in the assets sold thereby shall be released; provided
that, in the event of an Asset Sale, the Net Proceeds from such
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sale or other disposition are treated in accordance with the provisions of
Section 4.10 hereof. If the assets sold in such sale or other disposition
include all or substantially all of the assets of any Subsidiary Guarantor or
all of the Capital Stock of any Subsidiary Guarantor, then such Subsidiary
Guarantor (in the event of a sale or other disposition of all of the Capital
Stock of such Subsidiary Guarantor) or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of a Subsidiary Guarantor) shall be released from and relieved of its
Obligations under its Subsidiary Guarantee or Section 11.03 hereof, as the
case may be; provided that (i) in the event of an Asset Sale, the Net
Proceeds from such sale or other disposition are treated in accordance with
the provisions of Section 4.10 hereof and (ii) the Company is in compliance
with all other provisions of this Indenture applicable to such disposition.
Upon delivery by the Company to the Trustee of an Officers' Certificate to
the effect of the foregoing, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Subsidiary
Guarantor from its Obligation under its Subsidiary Guarantee. Any Subsidiary
Guarantor not released from its Obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of, premium, if any, and
interest on the Notes and for the other Obligations of such Subsidiary
Guarantor under the Indenture as provided in this Article 11.
SECTION 11.05. ADDITIONAL SUBSIDIARY GUARANTORS.
Any Person that was not a Subsidiary Guarantor on the date of this
Indenture may become a Subsidiary Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture in substantially the form of Exhibit E, and
(b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors rights', fraudulent transfers, public
policy and equitable principles as may be acceptable to the Trustee in its
discretion).
SECTION 11.06. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
For purposes hereof, the obligations of each Subsidiary Guarantor under its
Subsidiary Guarantee shall be limited to the lesser of (i) the aggregate amount
of the Obligations of the Company under the Notes and this Indenture and
(ii) the amount, if any, which would not have (A) rendered such Subsidiary
Guarantor "insolvent" (as such term is defined in the United States Bankruptcy
Code and in the Debtor and Creditor Law of the State of New York) or (B) left
such Subsidiary Guarantor with unreasonably small capital at the time its
Subsidiary Guarantee of the Notes was entered into; provided that it will be a
presumption in any lawsuit or other proceeding in which a Subsidiary Guarantor
is a party that the amount guaranteed pursuant to the Subsidiary Guarantee is
the amount set forth in clause (i) above unless any creditor, or representative
of creditors of such Subsidiary Guarantor, or debtor in possession or trustee in
bankruptcy of the Subsidiary Guarantor, otherwise proves in such a lawsuit that
the aggregate liability of the Subsidiary Guarantor is the amount set forth in
clause (ii) above. In making any determination as to solvency or sufficiency of
capital of a Subsidiary Guarantor in accordance with the previous sentence, the
right of such Subsidiary Guarantor to contribution from other Subsidiary
Guarantors, and any other rights such Subsidiary Guarantor may have, shall be
taken into account.
SECTION 11.07. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article 11 shall in each case (unless the context shall otherwise
require) be construed as extending to and including such
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Paying Agent within its meaning as fully and for all intents and purposes as
if such Paying Agent were named in this Article 11 in place of the Trustee.
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEE
SECTION 12.01. AGREEMENT TO SUBORDINATE.
The Subsidiary Guarantors agree, and each Holder by accepting a Note
agrees, that all Subsidiary Guarantee Obligations, shall be subordinated in
right of payment, to the extent and in the manner provided in this Article 12,
to the prior payment in full of all Guarantor Senior Debt, whether outstanding
on the date hereof or thereafter incurred and that the subordination is for the
benefit of the holders of Guarantor Senior Debt.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Subsidiary Guarantors in a
liquidation or dissolution of the Subsidiary Guarantors or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Subsidiary Guarantors or their respective property, an assignment for the
benefit of creditors or any marshalling of the Subsidiary Guarantors' assets and
liabilities, the holders of Guarantor Senior Debt will be entitled to receive
payment in full in cash of all Obligations due in respect of such Guarantor
Senior Debt (including interest after the commencement of any such proceeding at
the rate specified in the applicable Guarantor Senior Debt) before the Holders
will be entitled to receive any payment with respect to the Subsidiary
Guarantees, and until all Obligations with respect to Guarantor Senior Debt are
paid in full in cash, any distribution to which the Holders would be entitled
shall be made to the holders of Guarantor Senior Debt (except that Holders may
receive Permitted Junior Securities and payments made from the trust described
under Article 8 hereof.
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SECTION 12.03. DEFAULT ON DESIGNATED GUARANTOR SENIOR DEBT.
The Subsidiary Guarantors shall not make any payment upon or in respect of
the Subsidiary Guarantees (except in Permitted Junior Securities or from the
trust described under Article 8 hereof) if (i) a default in the payment of the
principal of, premium, if any, or interest on Designated Senior Debt occurs and
is continuing beyond any applicable period of grace or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that permits
holders of such Designated Senior Debt to accelerate its maturity and the
Trustee receives a notice of such default (a "Payment Blockage Notice") from any
Subsidiary Guarantor or the representative of the holders of such Designated
Senior Debt. Payments on the Subsidiary Guarantees may and shall be resumed
(a) in the case of a payment default, upon the date on which such default is
cured or waived and (b) in case of a nonpayment default, the earlier of (x) the
date on which such nonpayment default is cured or waived, (y) 179 days after the
date on which the applicable Payment Blockage Notice is received, in each case,
unless the maturity of any Designated Senior Debt has been accelerated or (z)
the date on which such Payment Blockage Period (as defined below) shall have
been terminated by written notice to the Trustee from the representative of the
holders of Designated Senior Debt initiating such Payment Blockage Period.
During any consecutive 360-day period, the aggregate number of days in which
payments due on the Notes may not be made as a result of nonpayment defaults on
Designated Senior Debt (a "Payment Blockage Period") shall not exceed 179 days,
and there shall be a period of at least 181 consecutive days in each consecutive
360-day period during which no Payment Blockage Period is in effect. No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been cured or
waived for a period of not less than 90 days.
SECTION 12.04. ACCELERATION OF SUBSIDIARY GUARANTEES.
If payment of the Subsidiary Guarantees is accelerated because of an Event
of Default, the Subsidiary Guarantor shall promptly notify such Representatives
of Guarantor Senior Debt of the acceleration.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder of a Subsidiary Guarantee
receives any payment of any Obligations with respect to the Subsidiary
Guarantees at a time when such payment is prohibited by Section 12.03 hereof,
such payment shall be held by the Trustee or such Holder, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Guarantor Senior Debt as their interests may appear
or their Representative under the indenture or other agreement (if any) pursuant
to which Guarantor Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
respect to Guarantor Senior Debt remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their terms, after giving effect to
any concurrent payment or distribution to or for the holders of Guarantor Senior
Debt.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Guarantor Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Guarantor Senior Debt, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders of the Subsidiary Guarantees or the Company
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or any other Person money or assets to which any holders of Guarantor Senior
Debt shall be entitled by virtue of this Article 12, except if such payment
is made as a result of the willful misconduct or gross negligence of the
Trustee.
SECTION 12.06. NOTICE BY SUBSIDIARY GUARANTOR.
The Subsidiary Guarantors shall promptly notify the Trustee and the Paying
Agent of any facts known to the Subsidiary Guarantors that would cause a payment
of any Obligations with respect to the Subsidiary Guarantees to violate this
Article, which notice shall specifically refer to this Article 12, but failure
to give such notice shall not affect the subordination of the Subsidiary
Guarantees to the Guarantor Senior Debt as provided in this Article.
SECTION 12.07. SUBROGATION.
After all Guarantor Senior Debt is paid in full and until the Notes are
paid in full, Holders of the Subsidiary Guarantees shall be subrogated (equally
and ratably with all pari passu indebtedness) to the rights of holders of
Guarantor Senior Debt to receive distributions applicable to Guarantor Senior
Debt to the extent that distributions otherwise payable to the Holders of the
Subsidiary Guarantees have been applied to the payment of Guarantor Senior
Debt. A distribution made under this Article to holders of Guarantor Senior
Debt that otherwise would have been made to Holders of the Subsidiary Guarantees
is not, as between the Subsidiary Guarantors and Holders of the Subsidiary
Guarantees, a payment by the Subsidiary Guarantors on the Subsidiary Guarantees.
SECTION 12.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of the Subsidiary
Guarantees and holders of Guarantor Senior Debt. Nothing in this Indenture
shall:
(1) impair, as between the Subsidiary Guarantors and Holders of the
Subsidiary Guarantees, the obligations of the Subsidiary Guarantors, which
are absolute and unconditional, to pay principal of and interest on the
Notes in accordance with the terms of the Subsidiary Guarantees;
(2) affect the relative rights of Holders of the Subsidiary
Guarantees and creditors of the Subsidiary Guarantors other than their
rights in relation to holders of Guarantor Senior Debt; or
(3) prevent the Trustee or any Holder of the Subsidiary Guarantees
from exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Guarantor Senior Debt to
receive distributions and payments otherwise payable to Holders of the
Subsidiary Guarantees.
If the Subsidiary Guarantors fail because of this Article to pay principal
of or interest on a Note on the due date in accordance with the terms of the
Subsidiary Guarantees, the failure is still a Default or Event of Default.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY GUARANTOR.
No right of any holder of Guarantor Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Subsidiary Guarantees shall
be impaired by any act or failure to act
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by the Subsidiary Guarantors or any Holder or by the failure of the
Subsidiary Guarantors or any Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Guarantor Senior Debt, or any of them, may, at any time and from time
to time, without the consent of or notice to the Holders of the Subsidiary
Guarantees, without incurring any liabilities to any Holder of any Subsidiary
Guarantees and without impairing or releasing the subordination and other
benefits provided in this Indenture or the obligations of the Holders of the
Subsidiary Guarantees to the holders of the Guarantor Senior Debt, even if any
right of reimbursement or subrogation or other right or remedy of any Holder of
Subsidiary Guarantees is affected, impaired or extinguished thereby, do any one
or more of the following:
(1) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any Guarantor Senior Debt, any security therefor or guaranty
thereof or any liability of any obligor thereon (including any guarantor)
to such holder, or any liability incurred directly or indirectly in respect
thereof or otherwise amend, renew, exchange, extend, modify, increase or
supplement in any manner any Guarantor Senior Debt or any instrument
evidencing or guaranteeing or securing the same or any agreement under
which Guarantor Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing Guarantor Senior Debt or any liability of
any obligor thereon, to such holder, or any liability incurred directly or
indirectly in respect thereof;
(3) settle or compromise any Guarantor Senior Debt or any other
liability of any obligor of the Guarantor Senior Debt to such holder or any
security therefor or any liability incurred directly or indirectly in
respect thereof and apply any sums by whomsoever paid and however realized
to any liability (including, without limitation, Guarantor Senior Debt) in
any manner or order; and
(4) fail to take or to record or to otherwise perfect, for any reason
or for no reason, any lien or security interest securing Guarantor Senior
Debt by whomsoever granted, exercise or delay in or refrain from exercising
any right or remedy against any obligor or any guarantor or any other
person, elect any remedy and otherwise deal freely with any obligor and any
security for the Guarantor Senior Debt or any liability of any obligor to
such holder or any liability incurred directly or indirectly in respect
thereof.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Guarantor Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article 12, the Trustee and the Holders of the Subsidiary
Guarantees shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such Representative or of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Subsidiary Guarantees for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Guarantor Senior Debt and other Indebtedness of the Company or
any Subsidiary Guarantor, the amount thereof or payable thereon,
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the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes or the Subsidiary Guarantees, unless the Trustee shall have
received at its Corporate Trust Office at least three Business Days prior to the
date of such payment written notice of facts that would cause the payment of any
Obligations with respect to the Notes or the Subsidiary Guarantees to violate
this Article, which notice shall specifically refer to this Article 12. Only
the Company, the Subsidiary Guarantors or a Representative may give the notice.
Nothing in this Article 12 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Guarantor
Senior Debt with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Subsidiary Guarantee by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 12, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes, including without limitation the
timely filing of a claim for the unpaid balance of the Notes held by such Holder
in the form required in any Insolvency or Liquidation Proceeding and causing
such claim to be approved. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time of such claim,
the Representatives of the Designated Senior Debt, including debt under the
Senior Credit Facility, are hereby authorized to file an appropriate claim for
and on behalf of the Holders of the Subsidiary Guarantees.
SECTION 12.13. AMENDMENTS.
Any amendment to the provisions of this Article 12 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Subsidiary Guarantees.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
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SECTION 13.02. NOTICES.
Any notice or communication by the Company, the Subsidiary Guarantors or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or any Subsidiary Guarantor:
Jitney-Jungle Stores of America, Inc.
1770 Ellis Avenue
Suite 200
Jackson, Mississippi 39204
Telecopier No.: (601) 371-8665
Attention: Chief Financial Officer
With a copy to:
Dechert Price & Rhoads
30 Rockefeller Plaza
New York, New York 10112
Telecopier No.: (212) 698-3599
Attention: Bruce B. Wood
If to the Trustee:
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005-1180
Telecopier No.: (212) 658-6425
Attention: Corporate Trust Department
The Company, the Subsidiary Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed by first class mail
or by overnight air courier promising next Business Day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
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If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it;
provided that notice to the Trustee shall not be deemed to have been given until
receipt by the Trustee of such notice.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Subsidiary Guarantors
to the Trustee to take any action under this Indenture (other than the initial
issuance of the Senior Subordinated Notes), the Company or Subsidiary Guarantor
shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
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SECTION 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the Company
or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company under the Notes, any Subsidiary Guarantee or this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Subsidiary Guarantees.
SECTION 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF
LAW RULES THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. SUCCESSORS.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Notes and the Subsidiary Guarantees shall bind their respective
successors and assigns. All agreements of the Trustee in this Indenture shall
bind its successors and assigns.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 13.12. COUNTERPART 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.
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SECTION 13.13. 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 of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of September __, 1997 JITNEY-JUNGLE STORES OF AMERICA, INC.
By:
-----------------------------------------
Name:
Title:
INTERSTATE JITNEY-JUNGLE STORES, INC.
By:
-----------------------------------------
Name:
Title:
MCCARTY-HOLMAN CO., INC.
By:
-----------------------------------------
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY
By:
-----------------------------------------
Name:
Title:
PUMP AND SAVE, INC.
By:
-----------------------------------------
Name:
Title:
DELTA ACQUISITION CORPORATION
By:
-----------------------------------------
Name:
Title:
<PAGE>
DELCHAMPS, INC.
By:
-----------------------------------------
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.
By:
-----------------------------------------
Name:
Title:
MARINE MIDLAND BANK,
as Trustee
By:
-----------------------
Name:
Title:
<PAGE>
EXHIBIT A
(Face of Senior Subordinated Note)
10 3/8% Senior Subordinated Notes due 2007
No. ___ $_______________
CUSIP NO.
JITNEY-JUNGLE STORES OF AMERICA, INC.
promises to pay to _____________ or registered assigns, the principal sum of
___________ Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September __
Record Dates: March 1 and September 1
JITNEY-JUNGLE STORES OF AMERICA, INC.
By:______________________________
Name:
Title:
This is one of the
Senior Subordinated Notes referred to in the
within-mentioned Indenture:
Dated: ___________
MARINE MIDLAND BANK,
as Trustee
By:__________________________________
<PAGE>
(Back of Senior Subordinated Note)
10 3/8% Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part for Senior
Subordinated Notes in definitive form, this Senior Subordinated Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, Cede & Co., has an
interest herein.](1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b), (c), (d) or
(e), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
(2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY
_____________________
(1) This paragraph should be included only if the Senior Subordinated Note is
issued in global form.
A-1-2
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PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.](2)
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its successor (the "Company"), promises to pay
interest on the principal amount of this Senior Subordinated Note at
the rate of 103/8% per annum and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and
Liquidated Damages, if any, in United States dollars (except as
otherwise provided herein) semi-annually in arrears on March 15 and
September 15, commencing on March 15, 1998, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Senior Subordinated Notes shall
accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that
if there is no existing Default or Event of Default in the payment of
interest, and if this Senior Subordinated Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original
issuance of Senior Subordinated Notes, in which case interest shall
accrue from the date of authentication. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum
in excess of the then applicable interest rate on the Senior
Subordinated Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same
rate to the extent lawful. Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages,
if any, on the applicable Interest Payment Date to the Persons who are
registered Holders of Senior Subordinated Notes at the close of
business on the March 1 or September 1 next preceding the Interest
Payment Date, even if such Senior Subordinated Notes are cancelled
after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Senior Subordinated Notes shall be payable as
to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within
or without the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages, if any, may be
made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of
immediately available funds shall be required with respect to
principal of, premium and Liquidated Damages, if any, and interest on,
all Global Notes and all other Senior Subordinated Notes the Holders
of which shall have provided written wire transfer instructions to the
Company and the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
_______________________________
(2) This paragraph should be removed upon the exchange of Senior Subordinated
Notes for New Senior Subordinated Notes in the Exchange Offer or upon the
registration of the Senior Subordinated Notes pursuant to the terms of the
Registration Rights Agreement.
A-1-3
<PAGE>
3. PAYING AGENT AND REGISTRAR. Initially, Marine Midland Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company or any of its Subsidiaries may act in any
such capacity.
4. INDENTURE. The Company issued the Senior Subordinated Notes under an
Indenture dated as of September __, 1997 ("Indenture") among the
Company, the Subsidiary Guarantors and the Trustee. The terms of the
Senior Subordinated Notes include those stated in the Indenture and
those made a part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Senior Subordinated Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement
of such terms. The Senior Subordinated Notes are general unsecured
Obligations of the Company limited to $200,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium or
Liquidated Damages, if any, and interest on outstanding Senior
Subordinated Notes as set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as provided in the following paragraph, the Notes will not
be redeemable at the Company's option prior to September 15, 2002.
Thereafter, the Notes will be subject to redemption at the option of
the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date,
if redeemed during the twelve-month period beginning on September 15
of the years indicated below:
Year Percentage
2002......................................... 105.188%
2003......................................... 103.458%
2004......................................... 101.729%
2005 and thereafter...........................100.000%
Notwithstanding the foregoing, at any time prior to September 15,
2000 the Company may on any one or more occasions redeem up to 33 1 3%
of the aggregate principal amount of Notes originally issued in the
Offering at a redemption price of 110.375% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the redemption date, with the net proceeds of one or
more Public Equity Offerings; provided that at least 66 2 3% of the
original aggregate principal amount of Notes remains outstanding
immediately after the occurrence of each such redemption; and
provided, further, that each such redemption shall occur within 120
days of the date of the closing of the Public Equity Offering to which
it relates.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not
be required to make mandatory redemption or sinking fund payments with
respect to the Senior Subordinated Notes.
A-1-4
<PAGE>
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder will have
the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer")
at a price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company will mail or cause to be mailed a notice to each Holder
describing the transaction or transactions that constitute the Change
of Control and offering to repurchase Notes pursuant to the procedures
required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall be required to make an offer to all Holders
(an "Asset Sale Offer") to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds, at a price in
cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the aggregate amount of
Excess Proceeds, the Company or its Restricted Subsidiary, as the case
may be, may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the aggregate amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased in accordance with the
terms of this Indenture. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Subordinated Notes that are the subject of
an offer to purchase will receive a Change of Control Offer or Asset
Sale Offer from the Company prior to any related purchase date and may
elect to have such Senior Subordinated Notes purchased by completing
the form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its
registered address. Senior Subordinated Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Senior Subordinated Notes held by a Holder
are to be redeemed. On and after the redemption date, interest and
Liquidated Damages, if any, ceases to accrue on the Senior
Subordinated Notes or portions thereof called for redemption.
9. SUBORDINATION. The Notes are subordinated to Senior Debt, which is
(i) Indebtedness pursuant to the Senior Credit Facility,
(ii) Indebtedness pursuant to the Senior Notes or guarantees thereof,
as applicable, (iii) the IRB Indebtedness, (iv) any other Indebtedness
permitted to be incurred by the Company or a Restricted Subsidiary
under the terms of the Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes or the
Subsidiary Guarantees, as applicable, and (v) all Obligations with
respect to the foregoing. Notwithstanding anything to the contrary in
the foregoing, Senior Debt will not include (w) any liability for
federal, state, local or other taxes owed or owing by the Company or
any Subsidiary Guarantor, (x) any Indebtedness of the Company or any
Subsidiary Guarantor to any of their respective Subsidiaries or other
Affiliates, (y) any trade payables or (z) any
A-1-5
<PAGE>
Indebtedness that is incurred in violation of the Indenture. To the
extent provided in the Indenture, Senior Debt must be paid before the
Notes may be paid. The Company agrees and each Holder of Notes by
accepting a Note consents and agrees to the subordination provided in
the Indenture and authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes are
in registered form without coupons in initial denominations of $1,000
and integral multiples of $1,000. The transfer of the Senior
Subordinated Notes may be registered and the Senior Subordinated Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Senior Subordinated Note or portion of a
Senior Subordinated Note selected for redemption, except for the
unredeemed portion of any Senior Subordinated Note being redeemed in
part. Also, it need not exchange or register the transfer of any
Senior Subordinated Notes for a period of 15 days before a selection
of Senior Subordinated Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior Subordinated
Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Senior Subordinated Notes and the
Subsidiary Guarantees may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the
Senior Subordinated Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of or,
tender offer or exchange offer for Senior Subordinated Notes), and any
existing Default or Event of Default or compliance with any provision
of the Indenture, the Senior Subordinated Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Senior Subordinated Notes
(including consents obtained in connection with a tender offer or
exchange offer for Senior Subordinated Notes).
Without the consent of any Holder of Senior Subordinated Notes,
the Company and the Trustee may amend or supplement the Indenture, the
Subsidiary Guarantees or the Senior Subordinated Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Senior Subordinated Notes in addition to or in place of certificated
Senior Subordinated Notes, to provide for the assumption of the
Company's or a Subsidiary Guarantor's obligations to Holders of Senior
Subordinated Notes in the case of a merger, consolidation or sale of
assets, to make any change that would provide any additional rights or
benefits to the Holders of Senior Subordinated Notes or that does not
adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the
Trust Indenture Act. Any amendments with respect to subordination
provisions of the Notes or the Subsidiary Guarantees would require the
consent of the Holders of at least 75% in aggregate amount of Notes
then outstanding if such amendment would be adversely affect the
rights of the Holders of Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due, upon redemption, acceleration or
otherwise, of interest on, or Liquidated
A-1-6
<PAGE>
Damages with respect to, the Senior Subordinated Notes; (ii) default
in payment when due of the principal of or premium, if any, on the
Senior Subordinated Notes; (iii) failure by the Company for 30 days
after receipt of written notice from the Trustee or from Holders of at
least 25% of the aggregate principal amount of the Senior Subordinated
Notes then outstanding to comply with the provisions described under
Sections 4.07, 4.09, 4.10 or 4.14 of the Indenture; (iv) failure by
the Company for 60 days after receipt of written notice from the
Trustee or from Holders of at least 25% of the aggregate principal
amount of the Senior Subordinated Notes then outstanding to comply
with any of its other agreements in the Indenture or the Senior
Subordinated Notes; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries or the payment of which
is Guaranteed by the Company or any of its Restricted Subsidiaries
(other than Indebtedness owed to the Company or its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is
created after the date hereof, if both (a) such default either (1)
results from the failure to pay any such Indebtedness at its stated
final maturity (after giving effect to any applicable grace periods)
or (2) relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated maturity and results
in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated maturity and (b) the
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity (after giving effect to any
applicable grace periods), or the maturity of which has been so
accelerated, aggregate $15.0 million or more; (vi) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments
(other than any judgments as to which a reputable insurance company
has accepted liability) aggregating in excess of $15.0 million, which
judgments are not paid, discharged, bonded or stayed for a period of
60 days after their entry; (vii) except as permitted by the Indenture,
any Subsidiary Guarantee will 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 on behalf of
any Subsidiary Guarantor, will deny or disaffirm its obligations under
its Subsidiary Guarantee; and (viii) certain events of bankruptcy or
insolvency with respect to the Company, any of its Significant
Restricted Subsidiaries or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Restricted Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Senior Subordinated Notes may declare all the Notes to be
due and payable immediately; provided, however, that, so long as any
Designated Senior Debt shall be outstanding, no such acceleration
shall be effective until the earlier of (i) acceleration of any such
Designated Senior Debt or (ii) five business days after the giving of
written notice to the Company and the representatives under the
Designated Senior Debt of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency with respect to the Company, any
Significant Restricted Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Restricted Subsidiary, all outstanding Senior Subordinated Notes will
become due and payable without further action or notice. Holders of
the Senior Subordinated Notes may not enforce the Indenture or the
Senior Subordinated Notes except as provided in the Indenture. In the
event of any Event of Default specified in clause (v) above, such
Event of Default and all consequences thereof (including, without
limitation, any acceleration or resulting payment default) shall be
annulled, waived and rescinded, automatically and without any action
by the Trustee or the
A-1-7
<PAGE>
Holders of the Senior Subordinated Notes, if within 20 days after such
Event of Default arose (x) the Indebtedness or guarantee that is the
basis for such Event of Default has been discharged in a manner that
does not violate the terms of the Indenture or (y) the holders thereof
have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, interest or
Liquidated Damages) if it determines that withholding notice is in
their interest. In addition, the Trustee shall have no obligation to
accelerate the Notes if, in the best judgment of the Trustee,
acceleration is not in the best interests of the Holders.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for the Company, the Subsidiary Guarantors or their
respective Affiliates, and may otherwise deal with the Company, the
Subsidiary Guarantors or their respective Affiliates, as if it were
not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary
Guarantor, as such, shall have any liability for any obligations of
the Company under the Senior Subordinated Notes, any Subsidiary
Guarantee or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of
Senior Subordinated Notes by accepting a Senior Subordinated Note
waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior Subordinated
Notes and the Subsidiary Guarantees. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Senior Subordinated
Notes under the Indenture, Holders of Transferred Restricted
Securities (as defined in the Registration Rights Agreement) shall
have all the rights set forth in the Registration Rights Agreement,
dated as of the date hereof, among the Company, the Subsidiary
Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Senior Subordinated
Notes and the Trustee may use CUSIP numbers in notices of redemption
as a convenience to the Holders. No representation is made as to
A-1-8
<PAGE>
the accuracy of such numbers either as printed on the Senior
Subordinated Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Jitney-Jungle Stores of America, Inc.
4315 Industrial Drive
Jackson, Mississippi 39209
Telecopier No.: (601) 965-8289
Attention: Chief Financial Officer
A-1-9
<PAGE>
Assignment Form
To assign this Senior Subordinated Note, fill in the form below: (I) or
(we) assign and transfer this Senior Subordinated Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Senior Subordinated Note on the books of the Company. The
agent may substitute another to act for him.
_______________________________________________________________________________
Date:____________________________
Your Signature:___________________
(Sign exactly as your name appears on the face of this Senior Subordinated
Note)
Signature Guarantee:
A-1-10
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Subordinated Note purchased
by the Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box
below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased: $___________
Date:___________________ Your Signature:______________________
(Sign exactly as your name appears
on the Senior Subordinated Note)
Tax Identification No.:______________
Signature Guarantee.
A-1-11
<PAGE>
SCHEDULE OF EXCHANGES OF SENIOR SUBORDINATED NOTES (3)
The following exchanges of a part of this Global Note for other Senior
Subordinated Notes have been made:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Principal Amount of Signature of authorized
Amount of decrease in Amount of increase this Global Note officer of Trustee or
Date of Principal Amount of in Principal Amount of following such decrease Senior Subordinated
Exchange this Global Note this Global Note (or increase) Note Custodian
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
____________________
(3) This should be included only if the Senior Subordinated Note is issued in
global form.
A-1-12
<PAGE>
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
10 3/8% Senior Subordinated Notes due 2007
No. _____ $_______________
CIN NO.
JITNEY-JUNGLE STORES OF AMERICA, INC.
promises to pay to ________________ or registered assigns, the principal sum of
________ Dollars on September 15, 2007.
Interest Payment Dates: March 15 and September __
Record Dates: March 1 and September 1
JITNEY-JUNGLE STORES OF AMERICA,
INC.
By:______________________________
Name:
Title:
This is one of the
Senior Subordinated Notes referred to in the
within-mentioned Indenture:
Dated: _________________________
MARINE MIDLAND BANK,
as Trustee
By:_____________________________
A-2-1
<PAGE>
(Back of Regulation S Temporary Global Note)
10 3/8% Senior Subordinated Note due 2007
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR
SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SENIOR SUBORDINATED NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) ("DTC"),TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSES
(b), (c), (d) or (e), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
A-2-2
<PAGE>
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SENIOR
SUBORDINATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON PRIOR TO THE
EXCHANGE OF THIS SENIOR SUBORDINATED NOTE FOR A REGULATION S TEMPORARY GLOBAL
NOTE AS CONTEMPLATED BY THE INDENTURE.](1)
Until this Regulation S Temporary Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest or Liquidated Damages, if any, hereon although interest and
Liquidated Damages, if any, will continue to accrue; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Senior Subordinated Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Regulation S Permanent Global Notes or Rule 144A Global Notes
only (i) on or after the termination of the 40-day restricted period (as defined
in Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Regulation S
Permanent Global Notes or Rule 144A Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This
Regulation S Temporary Global Note shall be governed by and construed in
accordance with the laws of the State of the New York. All references to "$,"
"Dollars," "dollars" or "U.S. $" are to such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public
and private debts therein.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its successor (the "Company"), promises to pay
interest on the principal amount of this Senior Subordinated Note at
the rate of 103/8% per annum and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and
Liquidated Damages, if any, in United States dollars (except as
otherwise provided herein) semi-annually in arrears on March 15 and
September 15, commencing on March 15, 1998, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Senior Subordinated Notes shall
accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that
if there is no existing Default or Event of Default in the payment of
interest, and if this Senior Subordinated Note is authenticated
between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding
________________________
(1) These paragraphs should be removed upon the exchange of Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
Indenture.
A-2-3
<PAGE>
Interest Payment Date, except in the case of the original issuance of
Senior Subordinated Notes, in which case interest shall accrue from
the date of authentication. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal at the rate equal to 1% per annum in excess of the
then applicable interest rate on the Senior Subordinated Notes to the
extent lawful; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable
grace period) at the same rate to the extent lawful. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages,
if any, on the applicable Interest Payment Date to the Persons who are
registered Holders of Senior Subordinated Notes at the close of
business on the March 1 or September 1 next preceding the Interest
Payment Date, even if such Senior Subordinated Notes are cancelled
after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Senior Subordinated Notes shall be payable as
to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within
or without the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages, if any, may be
made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of
immediately available funds shall be required with respect to
principal of, premium and Liquidated Damages, if any, and interest on,
all Global Notes and all other Senior Subordinated Notes the Holders
of which shall have provided written wire transfer instructions to the
Company and the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Marine Midland Bank, the
Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company or any of its Subsidiaries may act in any
such capacity.
4. INDENTURE. The Company issued the Senior Subordinated Notes under an
Indenture dated as of September 15, 1997 ("Indenture") among the
Company, the Subsidiary Guarantors and the Trustee. The terms of the
Senior Subordinated Notes include those stated in the Indenture and
those made a part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Senior Subordinated Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement
of such terms. The Senior Subordinated Notes are general unsecured
Obligations of the Company limited to $200,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium or
Liquidated Damages, if any, and interest on outstanding Senior
Subordinated Notes as set forth in Paragraph 2 hereof.
A-2-4
<PAGE>
5. OPTIONAL REDEMPTION.
Except as provided in the following paragraph, the
Notes will not be redeemable at the Company's option
prior to September 15, 2002. Thereafter, the Notes will
be subject to redemption at the option of the Company, in
whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if
any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on
September 15 of the years indicated below:
Year Percentage
------ -----------
2002............................ 105.188%
2003............................ 103.458%
2004............................ 101.729%
2005 and thereafter.............. 100.000%
Notwithstanding the foregoing, at any time prior to
September 15, 2000 the Company may on any one or more
occasions redeem up to 33 1/3% of the aggregate principal
amount of Notes originally issued in the Offering at a
redemption price of 110.375% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date, with the
net proceeds of one or more Public Equity Offerings;
provided that at least 66 2/3% of the original aggregate
principal amount of Notes remains outstanding immediately
after the occurrence of each such redemption; and
provided, further, that each such redemption shall occur
within 120 days of the date of the closing of the Public
Equity Offering to which it relates.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the
Senior Subordinated Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control,
each Holder will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of
Control Offer") at a price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon
to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of
Control, the Company will mail or cause to be mailed a
notice to each Holder describing the transaction or
transactions that constitute the Change of Control and
offering to repurchase Notes pursuant to the procedures
required by the Indenture.
A-2-5
<PAGE>
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall be required to make an offer to all Holders
(an "Asset Sale Offer") to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds, at a price in
cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the aggregate amount of
Excess Proceeds, the Company or its Restricted Subsidiary, as the case
may be, may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the aggregate amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased in accordance with the
terms of this Indenture. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Subordinated Notes that are the subject of
an offer to purchase will receive a Change of Control Offer or Asset
Sale Offer from the Company prior to any related purchase date and may
elect to have such Senior Subordinated Notes purchased by completing
the form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each
Holder whose Senior Subordinated Notes are to be redeemed at its
registered address. Senior Subordinated Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Senior Subordinated Notes held by a Holder
are to be redeemed. On and after the redemption date, interest and
Liquidated Damages, if any, ceases to accrue on the Senior
Subordinated Notes or portions thereof called for redemption.
9. SUBORDINATION. The Notes are subordinated to Senior Debt, which is
(i) Indebtedness pursuant to the Senior Credit Facility,
(ii) Indebtedness pursuant to the Senior Notes or guarantees thereof,
as applicable, (iii) the IRB Indebtedness, (iv) any other Indebtedness
permitted to be incurred by the Company or a Restricted Subsidiary
under the terms of the Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes or the
Subsidiary Guarantees, as applicable, and (v) all Obligations with
respect to the foregoing. Notwithstanding anything to the contrary in
the foregoing, Senior Debt will not include (w) any liability for
federal, state, local or other taxes owed or owing by the Company or
any Subsidiary Guarantor, (x) any Indebtedness of the Company or any
Subsidiary Guarantor to any of their respective Subsidiaries or other
Affiliates, (y) any trade payables or (z) any Indebtedness that is
incurred in violation of the Indenture. To the extent provided in the
Indenture, Senior Debt must be paid before the Notes may be paid. The
Company agrees and each Holder of Notes by accepting a Note consents
and agrees to the subordination provided in the Indenture and
authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Subordinated Notes are
in registered form without coupons in initial denominations of $1,000
and integral
A-2-6
<PAGE>
multiples of $1,000. The transfer of the Senior Subordinated Notes
may be registered and the Senior Subordinated Notes may be
exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Senior Subordinated Note or portion of
a Senior Subordinated Note selected for redemption, except for the
unredeemed portion of any Senior Subordinated Note being redeemed
in part. Also, it need not exchange or register the transfer of
any Senior Subordinated Notes for a period of 15 days before a
selection of Senior Subordinated Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment
Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior Subordinated
Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Senior Subordinated Notes and the
Subsidiary Guarantees may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the
Senior Subordinated Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of or,
tender offer or exchange offer for Senior Subordinated Notes), and any
existing Default or Event of Default or compliance with any provision
of the Indenture, the Senior Subordinated Notes or the Subsidiary
Guarantees may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Senior Subordinated Notes
(including consents obtained in connection with a tender offer or
exchange offer for Senior Subordinated Notes).
Without the consent of any Holder of Senior Subordinated Notes,
the Company and the Trustee may amend or supplement the Indenture, the
Subsidiary Guarantees or the Senior Subordinated Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Senior Subordinated Notes in addition to or in place of certificated
Senior Subordinated Notes, to provide for the assumption of the
Company's or a Subsidiary Guarantor's obligations to Holders of Senior
Subordinated Notes in the case of a merger, consolidation or sale of
assets, to make any change that would provide any additional rights or
benefits to the Holders of Senior Subordinated Notes or that does not
adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the
Trust Indenture Act. Any amendments with respect to subordination
provisions of the Notes or the Subsidiary Guarantees would require the
consent of the Holders of at least 75% in aggregate amount of Notes
then outstanding if such amendment would be adversely affect the
rights of the Holders of Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due, upon redemption, acceleration or
otherwise, of interest on, or Liquidated Damages with respect to, the
Senior Subordinated Notes; (ii) default in payment when due of the
principal of or premium, if any, on the Senior Subordinated Notes;
(iii) failure by the Company for 30 days after receipt of written
notice from the Trustee or from Holders of at least 25% of the
aggregate principal amount of the
A-2-7
<PAGE>
Senior Subordinated Notes then outstanding to comply with the
provisions described under Sections 4.07, 4.09, 4.10 or 4.14 of the
Indenture; (iv) failure by the Company for 60 days after receipt of
written notice from the Trustee or from Holders of at least 25% of
the aggregate principal amount of the Senior Subordinated Notes
then outstanding to comply with any of its other agreements in the
Indenture or the Senior Subordinated Notes; (v) default under any
mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries
or the payment of which is Guaranteed by the Company or any of its
Restricted Subsidiaries (other than Indebtedness owed to the
Company or its Restricted Subsidiaries) whether such Indebtedness
or Guarantee now exists, or is created after the date hereof, if
both (a) such default either (1) results from the failure to pay
any such Indebtedness at its stated final maturity (after giving
effect to any applicable grace periods) or (2) relates to an
obligation other than the obligation to pay principal of any such
Indebtedness at its stated maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become
due prior to its stated maturity and (b) the principal amount of
such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at stated
final maturity (after giving effect to any applicable grace
periods), or the maturity of which has been so accelerated,
aggregate $15.0 million or more; (vi) failure by the Company or any
of its Restricted Subsidiaries to pay final judgments (other than
any judgments as to which a reputable insurance company has
accepted liability) aggregating in excess of $15.0 million, which
judgments are not paid, discharged, bonded or stayed for a period
of 60 days after their entry; (vii) except as permitted by the
Indenture, any Subsidiary Guarantee will 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 on behalf of any Subsidiary Guarantor, will deny or
disaffirm its obligations under its Subsidiary Guarantee; and
(viii) certain events of bankruptcy or insolvency with respect to
the Company, any of its Significant Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Restricted Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Senior Subordinated Notes may declare all the Notes to be
due and payable immediately; provided, however, that, so long as any
Designated Senior Debt shall be outstanding, no such acceleration
shall be effective until the earlier of (i) acceleration of any such
Designated Senior Debt or (ii) five business days after the giving of
written notice to the Company and the representatives under the
Designated Senior Debt of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency with respect to the Company, any
Significant Restricted Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Restricted Subsidiary, all outstanding Senior Subordinated Notes will
become due and payable without further action or notice. Holders of
the Senior Subordinated Notes may not enforce the Indenture or the
Senior Subordinated Notes except as provided in the Indenture. In the
event of any Event of Default specified in clause (v) above, such
Event of Default and all consequences thereof (including, without
limitation, any acceleration or resulting payment default) shall be
annulled, waived and rescinded, automatically and without any action
by the Trustee or the Holders of the Senior Subordinated Notes, if
within
A-2-8
<PAGE>
20 days after such Event of Default arose (x) the Indebtedness
or guarantee that is the basis for such Event of Default has been
discharged in a manner that does not violate the terms of the
Indenture or (y) the holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to
such Event of Default. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the
payment of principal, interest or Liquidated Damages) if it determines
that withholding notice is in their interest. In addition, the
Trustee shall have no obligation to accelerate the Notes if, in the
best judgment of the Trustee, acceleration is not in the best
interests of the Holders.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for the Company, the Subsidiary Guarantors or their
respective Affiliates, and may otherwise deal with the Company, the
Subsidiary Guarantors or their respective Affiliates, as if it were
not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary
Guarantor, as such, shall have any liability for any obligations of
the Company under the Senior Subordinated Notes, any Subsidiary
Guarantee or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of
Senior Subordinated Notes by accepting a Senior Subordinated Note
waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior Subordinated
Notes and the Subsidiary Guarantees. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
16. AUTHENTICATION. This Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Senior Subordinated
Notes under the Indenture, Holders of Transferred Restricted
Securities (as defined in the Registration Rights Agreement) shall
have all the rights set forth in the Registration Rights Agreement,
dated as of the date hereof, among the Company, the Subsidiary
Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Senior Subordinated
Notes and the Trustee may use CUSIP numbers in notices of redemption
as a convenience to the Holders. No
A-2-9
<PAGE>
representation is made as to the accuracy of such numbers either as
printed on the Senior Subordinated Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Jitney-Jungle Stores of America, Inc.
4315 Industrial Drive
Jackson, Mississippi 39209
Telecopier No.: (601) 965-8289
Attention: Chief Financial Officer
A-2-10
<PAGE>
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S
Temporary Global Note for other Global Notes have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of decrease in Amount of increase in Principal Amount of this authorized officer of
Principal Amount Principal Amount Global Note Trustee or Senior
of this Global of this Global following such decrease Subordinated Note
Date of Exchange Note Note (or increase) Custodian
- ---------------- ---------------------- ---------------------- -------------------------- ---------------------
<S> <C> <C> <C> <C>
</TABLE>
A-2-11
<PAGE>
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(1) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005
Re: 10 3/8% Senior Subordinated Notes due 2007 of
Jitney-Jungle Stores of America, Inc.
Reference is hereby made to the Indenture, dated as of
September ___, 1997 (the "Indenture"), among Jitney-Jungle
Stores of America, Inc., a Mississippi corporation (the
"Company"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("Interstate"), McCarty-Holman Co., Inc., a
Mississippi corporation ("McCarty-Holman"), Southern Jitney
Jungle Company, a Mississippi corporation ("Southern"), Pump
And Save, Inc., a Mississippi corporation ("Pump And Save"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"),
Delchamps, Inc., an Alabama corporation ("Delchamps") and
Supermarket Cigarette Sales, Inc., a Louisiana corporation
("SCSI") (each of Interstate, McCarty-Holman, Southern, Pump
And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and
together with any Subsidiary of the Company that executes a
Subsidiary Guarantee substantially in the form of Exhibit D
attached hereto, the "Subsidiary Guarantors") and Marine
Midland Bank, as trustee (the "Trustee"). Capitalized terms
used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $ _______________ principal amount
of Senior Subordinated Notes which are evidenced by one or
more Rule 144A Global Notes and held with the Depositary in
the name of ______________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial
interest in the Senior Subordinated Notes to a Person who will
take delivery thereof in the form of an equal principal amount
of Senior Subordinated Notes evidenced by one or more
Regulation S Global Notes, which amount, immediately after
such transfer, is to be held with the Depositary through
Euroclear or Cedel or both.
In connection with such request and in respect of such
Senior Subordinated Notes, the Transferor hereby certifies
that such transfer has been effected in compliance with the
transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under
the United States Securities Act of 1933, as amended (the
"Securities Act"), and accordingly the Transferor hereby
further certifies that:
(1) The offer of the Senior Subordinated Notes was not
made to a person in the United States;
(2) either:
B-1-1
<PAGE>
(a) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through
the facilities of a designated offshore
securities market and neither the Transferor
nor any person acting on its behalf knows that
the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule
904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to
evade the registration provisions of the
Securities Act; and
(5) upon completion of the transaction, the
beneficial interest being transferred as
described above is to be held with the
Depositary through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a
beneficial interest in a Rule 144A Global Note for a
beneficial interest in a Regulation S Global Note, the
resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global
Notes pursuant to the Indenture and the Securities Act and, if
such transfer occurs prior to the end of the 40-day restricted
period associated with the initial offering of Senior
Subordinated Notes, the additional restrictions applicable to
transfers of interest in the Regulation S Temporary Global
Note.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company, the
Subsidiary Guarantors and Donaldson, Lufkin & Jenrette
Securities Corporation and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being
transferred. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_________________________
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Credit Suisse First Boston
B-1-2
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005
Re: 10 3/8% Senior Subordinated Notes due 2007 of
Jitney-Jungle Stores of America, Inc.
Reference is hereby made to the Indenture, dated as of
September ___, 1997 (the "Indenture"), among Jitney-Jungle
Stores of America, Inc., a Mississippi corporation (the
"Company"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("Interstate"), McCarty-Holman Co., Inc., a
Mississippi corporation ("McCarty-Holman"), Southern Jitney
Jungle Company, a Mississippi corporation ("Southern"), Pump
And Save, Inc., a Mississippi corporation ("Pump And Save"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"),
Delchamps, Inc., an Alabama corporation ("Delchamps") and
Supermarket Cigarette Sales, Inc., a Louisiana corporation
("SCSI") (each of Interstate, McCarty-Holman, Southern, Pump
And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and
together with any Subsidiary of the Company that executes a
Subsidiary Guarantee substantially in the form of Exhibit D
attached hereto, the "Subsidiary Guarantors") and Marine
Midland Bank, as trustee (the "Trustee"). Capitalized terms
used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $_________ principal amount of
Senior Subordinated Notes which are evidenced by one or more
Regulation S Global Notes and held with the Depositary through
Euroclear or Cedel in the name of
__________________________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial
interest in the Senior Subordinated Notes to a Person who will
take delivery thereof in the form of an equal principal amount
of Senior Subordinated Notes evidenced by one or more Rule
144A Global Notes, to be held with the Depositary.
In connection with such request and in respect of such
Senior Subordinated Notes, the Transferor hereby certifies
that:
[CHECK ONE]
/ / such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Subordinated Notes are being
transferred to a Person that the Transferor reasonably
believes is purchasing the Senior Subordinated Notes for
its own account, or for one or more accounts with respect
to which such Person exercises sole investment
discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of
Rule 144A;
B-2-1
<PAGE>
or
/ / such transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption
under the Securities Act other than Rule 144A, Rule 144
or Rule 904 and the Transferor further certifies that the
Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and
Definitive Senior Subordinated Notes bearing the Private
Placement Legend and the requirements of the exemption
claimed, which certification is supported by (x) if such
transfer is in respect of a principal amount of Senior
Subordinated Notes at the time of Transfer of $100,000 or
more, a certificate executed by the Transferee in the
form of Exhibit C to the Indenture, or (y) if such
Transfer is in respect of a principal amount of Senior
Subordinated Notes at the time of transfer of less than
$100,000, (1) a certificate executed in the form of
Exhibit C to the Indenture and (2) an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification),
to the effect that (1) such Transfer is in compliance
with the Securities Act and (2) such Transfer complies
with any applicable blue sky securities laws of any state
of the United States;
or
/ / such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption
from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor
hereby further certifies that the Senior Subordinated
Notes are being transferred in compliance with the
transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption
claimed, which certification is supported by an Opinion
of Counsel, provided by the transferor or the transferee
(a copy of which the Transferor has attached to this
certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any
state of the United States.
Upon giving effect to this request to exchange a
beneficial interest in Regulation S Global Notes for a
beneficial interest in 144A Global Senior Subordinated Notes,
the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes
pursuant to the Indenture and the Securities Act.
B-2-2
<PAGE>
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company, the
Subsidiary Guarantors and Donaldson, Lufkin & Jenrette
Securities Corporation, and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being
transferred. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Credit Suisse First Boston
B-2-3
<PAGE>
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005
Re: 10 3/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September __, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "Company"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("Interstate"), McCarty-Holman Co., Inc., a Mississippi corporation
("McCarty-Holman"), Southern Jitney Jungle Company, a Mississippi corporation
("Southern"), Pump And Save, Inc., a Mississippi corporation ("Pump And Save"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("Delchamps") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, McCarty-Holman, Southern,
Pump And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of Exhibit D attached hereto, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This relates to $_____________ principal amount of Senior Subordinated
Notes which are evidenced by one or more Definitive Senior Subordinated Notes
in the name of ________________ (the "Transferor"). The Transferor has
requested an exchange or transfer of such Definitive Senior Subordinated
Note(s) in the form of an equal principal amount of Senior Subordinated Notes
evidenced by one or more Definitive Senior Subordinated Notes, to be
delivered to the Transferor or, in the case of a transfer of such Senior
Subordinated Notes, to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
/ / the Surrendered Senior Subordinated Notes are being acquired for the
Transferor's own account, without transfer;
or
/ / the Surrendered Senior Subordinated Notes are being transferred to the
Company;
or
B-3-1
<PAGE>
/ / the Surrendered Senior Subordinated Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Subordinated Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Subordinated Notes for its own account,
or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each
case in a transaction meeting the requirements of Rule 144A;
or
/ / the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Senior Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Senior Subordinated Notes at the time of Transfer of $100,000 or
more, a certificate executed by the Transferee in the form of Exhibit
C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of transfer
of less than $100,000, (1) a certificate executed in the form of
Exhibit C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any state of
the United States;
or
/ / the Surrendered Senior Subordinated Notes are being transferred pursuant to
an effective registration statement under the Securities Act;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a copy
of which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
B-3-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and Donaldson,
Lufkin & Jenrette Securities Corporation and Credit Suisse First Boston, the
initial purchasers of such Senior Subordinated Notes being transferred. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Credit Suisse First Boston
B-3-3
<PAGE>
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005
Re: 10 3/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September __, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "Company"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("Interstate"), McCarty-Holman Co., Inc., a Mississippi corporation
("McCarty-Holman"), Southern Jitney Jungle Company, a Mississippi corporation
("Southern"), Pump And Save, Inc., a Mississippi corporation ("Pump And Save"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("Delchamps") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, McCarty-Holman, Southern,
Pump And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of Exhibit D attached hereto, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $ __________ principal amount of Senior
Subordinated Notes which are evidenced by a beneficial interest in one or
more Rule 144A Global Notes or Regulation S Permanent Global Notes in the
name of __________________ (the "Transferor"). The Transferor has requested
an exchange or transfer of such beneficial interest in the form of an equal
principal amount of Senior Subordinated Notes evidenced by one or more
Definitive Senior Subordinated Notes, to be delivered to the Transferor or,
in the case of a transfer of such Senior Subordinated Notes, to such Person
as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Subordinated
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Subordinated Notes"), the Holder of such Surrendered Senior Subordinated Notes
hereby certifies that:
[CHECK ONE]
/ / the Surrendered Senior Subordinated Notes are being transferred to the
beneficial owner of such Senior Subordinated Notes;
or
/ / the Surrendered Senior Subordinated Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities
B-4-1
<PAGE>
Act"), and, accordingly, the Transferor hereby further certifies that the
Surrendered Senior Subordinated Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Surrendered
Senior Subordinated Notes for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
they requirements of Rule 144A;
or
/ / the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
/ / the Surrendered Senior Subordinated Notes are being transferred pursuant to
an effective registration statement under the Securities Act;
or
/ / the Surrendered Senior Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Senior
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Senior Subordinated Notes at the time of Transfer of $100,000 or
more, a certificate executed by the Transferee in the form of Exhibit
C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of transfer
of less than $100,000, (1) a certificate executed in the form of
Exhibit C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any state of
the United States;
or
/ / such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a copy
of which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
B-4-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and
Donaldson, Lufkin & Jenrette Securities Corporation, the initial purchaser of
such Senior Subordinated Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
Dated:
cc: Jitney-Jungle Stores of America, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Credit Suisse First Boston
B-4-3
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Marine Midland Bank
140 Broadway, 12th Floor
New York, NY 10005
Re: 103/8% Senior Subordinated Notes due 2007 of Jitney-Jungle Stores of
America, Inc.
Reference is hereby made to the Indenture, dated as of September __, 1997
(the "Indenture"), among Jitney-Jungle Stores of America, Inc., a Mississippi
corporation (the "Company"), Interstate Jitney-Jungle Stores, Inc., an Alabama
corporation ("Interstate"), McCarty-Holman Co., Inc., a Mississippi corporation
("McCarty-Holman"), Southern Jitney Jungle Company, a Mississippi corporation
("Southern"), Pump And Save, Inc., a Mississippi corporation ("Pump And Save"),
Delta Acquisition Corporation, an Alabama corporation ("DAC"), Delchamps, Inc.,
an Alabama corporation ("Delchamps") and Supermarket Cigarette Sales, Inc., a
Louisiana corporation ("SCSI") (each of Interstate, McCarty-Holman, Southern,
Pump And Save, DAC, Delchamps and SCSI a "Subsidiary Guarantor" and together
with any Subsidiary of the Company that executes a Subsidiary Guarantee
substantially in the form of Exhibit D attached hereto, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $ aggregate
--------------
principal amount of:
(a) / / Beneficial interests, or
(b) / / Definitive Senior Subordinated Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior
Subordinated Notes of any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Senior Subordinated
Notes or any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Subordinated
Notes have not been registered under the Securities Act, and that the Senior
Subordinated Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell the Senior Subordinated Notes or any interest therein, (A) we will do so
only (1)(a) to a person who the Seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United
C-1
<PAGE>
States to a foreign person in a transaction meeting the requirements of Rule
904 of the Securities Act, or (d) in accordance with another exemption from
the registration requirements of the Securities Act (and based upon an
opinion of counsel), (2) to the Company or any of its subsidiaries or (3)
pursuant to an effective registration statement and, in each case, in
accordance with any applicable securities laws of any State of the United
States or any other applicable jurisdiction and (B) we will, and each
subsequent holder will be required to, notify any purchaser from it of the
security evidenced hereby of the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior
Subordinated Notes or beneficial interests, we will be required to furnish to
you and the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Senior
Subordinated Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Subordinated
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial
interests therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited investor") as to each of
which we exercise sole investment discretion.
6. We are not acquiring the Senior Subordinated Notes with a view to
any distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
C-2
<PAGE>
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------
[Insert Name of Accredited
Investor]
By:
---------------------------------
Name:
Title:
Dated: ,
----------------- ----
C-3
<PAGE>
EXHIBIT D
Subsidiary Guarantee
Subject to Section 11.06 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Senior Subordinated Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Senior Subordinated Notes and the
Obligations of the Company under the Senior Subordinated Notes or under the
Indenture, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Senior Subordinated Notes will be promptly paid in full
when due, subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, and interest on overdue principal,
premium, if any, (to the extent permitted by law) interest on any interest, if
any, and Liquidated Damages, if any, on the Senior Subordinated Notes and all
other payment Obligations of the Company to the Holders or the Trustee under the
Indenture or under the Senior Subordinated Notes will be promptly paid in full
and performed, all in accordance with the terms thereof; and (b) in case of any
extension of time of payment or renewal of any Senior Subordinated Notes or any
of such other payment Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Section 11.04 of the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Senior Subordinated
Notes and the Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Subsidiary Guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Senior Subordinated Note upon
which this Subsidiary Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the Senior Subordinated Notes and the Indenture and (ii) the amount, if
any, which would not have (A) rendered such Subsidiary Guarantor "insolvent" (as
such term is defined in the Bankruptcy Law and in the Debtor and Creditor Law of
the State of New York) or (B) left such Subsidiary Guarantor with unreasonably
small capital at the time its Subsidiary Guarantee of the Senior Subordinated
Notes was entered into; provided that, it will be a presumption in any lawsuit
or other proceeding in which a Subsidiary Guarantor is
D-1
<PAGE>
a party that the amount guaranteed pursuant to the Subsidiary Guarantee is
the amount set forth in clause (i) above unless any creditor, or
representative of creditors of such Subsidiary Guarantor, or debtor in
possession or trustee in bankruptcy of such Subsidiary Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of the Subsidiary
Guarantor is limited to the amount set forth in clause (ii) above. The
Indenture provides that, in making any determination as to the solvency or
sufficiency of capital of a Subsidiary Guarantor in accordance with the
previous sentence, the right of such Subsidiary Guarantors to contribution
from other Subsidiary Guarantors and any other rights such Subsidiary
Guarantors may have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
Dated as of September __, 1997 JITNEY-JUNGLE STORES OF AMERICA, INC.
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 INTERSTATE JITNEY JUNGLE STORES, INC.
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 MCCARTY-HOLMAN CO., INC.
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 SOUTHERN JITNEY JUNGLE COMPANY
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 PUMP AND SAVE, INC.
By:
-----------------------------------------
Name:
Title:
D-2
<PAGE>
Dated as of September __, 1997 DELTA ACQUISITION CORPORATION.
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 DELCHAMPS, INC.
By:
-----------------------------------------
Name:
Title:
Dated as of September __, 1997 SUPERMARKET CIGARETTE SALES, INC.
By:
-----------------------------------------
Name:
Title:
D-3
<PAGE>
Exhibit E
FORM OF SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
___________, between Subsidiary Guarantor (the "New Subsidiary Guarantor"), a
subsidiary of Jitney-Jungle Stores of America, Inc., a Mississippi corporation
(the "Company"), and Marine Midland Bank, as trustee under the indenture
referred to below (the "Trustee"). Capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Indenture (as
defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of September __, 1997, providing for
the issuance of an aggregate principal amount of $200,000,000 of 10 3/8% Senior
Subordinated Notes due 2007 (the "Senior Subordinated Notes");
WHEREAS, Section 11.05 of the Indenture provides that under certain
circumstances the Company may cause, and Section 11.03 of the Indenture provides
that under certain circumstances the Company must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the Senior Subordinated Notes pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO SUBSIDIARY GUARANTEE. The New Subsidiary Guarantor
hereby agrees, jointly and severally with all other Subsidiary Guarantors, to
guarantee the Company's Obligations under the Senior Subordinated Notes and the
Indenture on the terms and subject to the conditions set forth in Article 11 of
the Indenture and to be bound by all other applicable provisions of the
Indenture.
E-1
<PAGE>
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Senior Subordinated Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Subordinated Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS THE PARTIES MAY SIGN ANY NUMBER OF COPIES OF THIS
SUPPLEMENTAL INDENTURE. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Subsidiary
Guarantor.
E-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed and attested, all as of the date first above written.
Dated: ________________ [Name of New Subsidiary Guarantor]
By: ____________________________
Name:
Title:
Dated: ________________ MARINE MIDLAND BANK,
as Trustee
By: ____________________________
Name:
Title:
E-3
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.03; 7.10
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.05
(b)......................................................... 13.03
(c)......................................................... 13.03
313 (a)......................................................... 7.06
(b)(1)...................................................... 7.06
(b)(2)...................................................... 7.06; 7.07
(c)......................................................... 7.06;13.02
(d)......................................................... 7.06
314 (a)......................................................... 4.03;13.05
(b)......................................................... N.A.
(c)(1)...................................................... 13.04
(c)(2)...................................................... 13.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 13.05
(f)......................................................... N.A.
315 (a)......................................................... 7.01
(b)......................................................... 7.05,13.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316 (a)(last sentence).......................................... 2.09
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
(c)......................................................... 2.13
317 (a)(1)...................................................... 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.04
318 (a)......................................................... 13.01
(b)......................................................... N.A.
(c)......................................................... 13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.............................................. 1
Section 1.02. Other Definitions........................................ 15
Section 1.03. Incorporation by Reference of Trust Indenture Act........ 16
Section 1.04. Rules of Construction.................................... 16
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.......................................... 16
Section 2.02. Execution and Authentication............................. 18
Section 2.03. Registrar and Paying Agent............................... 19
Section 2.04. Paying Agent to Hold Money in Trust...................... 19
Section 2.05. Holder Lists............................................. 19
Section 2.06. Transfer and Exchange.................................... 20
Section 2.07. Replacement Notes........................................ 27
Section 2.08. Outstanding Notes........................................ 28
Section 2.09. Treasury Notes........................................... 28
Section 2.10. Temporary Notes.......................................... 28
Section 2.11. Cancellation............................................. 28
Section 2.12. Defaulted Interest....................................... 29
Section 2.13. Record Date.............................................. 29
Section 2.14. Computation of Interest.................................. 29
Section 2.15. CUSIP Number............................................. 29
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee....................................... 29
Section 3.02. Selection of Notes to be Redeemed or Purchased........... 30
Section 3.03. Notice of Redemption..................................... 30
Section 3.04. Effect of Notice of Redemption........................... 31
Section 3.05. Deposit of Redemption or Purchase Price.................. 31
Section 3.06. Notes Redeemed in Part................................... 32
Section 3.07. Optional Redemption...................................... 32
Section 3.08. Mandatory Redemption..................................... 32
Section 3.09. Repurchase Offers........................................ 32
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes......................................... 34
Section 4.02. Maintenance of Office or Agency.......................... 35
i
<PAGE>
Section 4.03. Commission Reports....................................... 35
Section 4.04. Compliance Certificate................................... 36
Section 4.05. Taxes.................................................... 36
Section 4.06. Stay, Extension and Usury Laws........................... 37
Section 4.07. Restricted Payments...................................... 37
Section 4.08. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.................................. 40
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock.................................................... 42
Section 4.10. Assets Sales............................................. 44
Section 4.11. Transactions With Affiliates............................. 45
Section 4.12. Liens.................................................... 46
Section 4.13. Sale and Leaseback Transactions.......................... 46
Section 4.14. Offer to Purchase Upon Change of Control................. 46
Section 4.15. Corporate Existence...................................... 47
Section 4.16. Limitation on Issuances of Capital Stock of Wholly
Owned Restricted Subsidiaries............................ 47
Section 4.17. Business Activities...................................... 47
Section 4.18. Additional Guarantees.................................... 48
Section 4.19. Payment for Consents..................................... 48
Section 4.20. No Senior Subordinated Debt.............................. 48
Section 4.21. No Restrictions on Consummation of Delchamps
Acquisition.............................................. 48
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.................. 49
Section 5.02. Successor Corporation Substituted........................ 49
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default........................................ 50
Section 6.02. Acceleration............................................. 51
Section 6.03. Other Remedies........................................... 52
Section 6.04. Waiver of Past Defaults.................................. 52
Section 6.05. Control by Majority...................................... 53
Section 6.06. Limitation on Suits...................................... 53
Section 6.07. Rights of Holders of Notes to Receive Payment............ 53
Section 6.08. Collection Suit by Trustee............................... 53
Section 6.09. Trustee May File Proofs of Claim......................... 54
Section 6.10. Priorities............................................... 54
Section 6.11. Undertaking for Costs.................................... 54
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee........................................ 55
Section 7.02. Rights of Trustee........................................ 56
ii
<PAGE>
Section 7.03. Individual Rights of Trustee............................. 56
Section 7.04. Trustee's Disclaimer..................................... 56
Section 7.05. Notice of Defaults....................................... 57
Section 7.06. Reports by Trustee to Holders of the Notes............... 57
Section 7.07. Compensation and Indemnity............................... 57
Section 7.08. Replacement of Trustee................................... 58
Section 7.09. Successor Trustee by Merger, etc......................... 59
Section 7.10. Eligibility; Disqualification............................ 59
Section 7.11. Preferential Collection of Claims Against Company........ 59
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance............................................... 59
Section 8.02. Legal Defeasance and Discharge........................... 59
Section 8.03. Covenant Defeasance...................................... 60
Section 8.04. Conditions to Legal or Covenant Defeasance............... 60
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.................... 62
Section 8.06. Repayment to Company..................................... 62
Section 8.07. Reinstatement............................................ 63
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes...................... 64
Section 9.02. With Consent of Holders of Notes......................... 64
Section 9.03. Compliance with Trust Indenture Act...................... 65
Section 9.04. Revocation and Effect of Consents........................ 66
Section 9.05. Notation on or Exchange of Notes......................... 66
Section 9.06. Trustee to Sign Amendments, etc.......................... 66
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate................................. 67
Section 10.02. Liquidation; Dissolution; Bankruptcy..................... 67
Section 10.03. Default on Designated Senior Debt........................ 67
Section 10.04. Acceleration of Notes.................................... 67
Section 10.05. When Distribution Must Be Paid Over...................... 68
Section 10.06. Notice by the Company.................................... 68
Section 10.07. Subrogation.............................................. 68
Section 10.08. Relative Rights.......................................... 68
Section 10.09. Subordination May Not Be Impaired by the Company......... 69
Section 10.10. Distribution or Notice to Representative................. 69
Section 10.11. Rights of Trustee and Paying Agent....................... 70
Section 10.12. Authorization to Effect Subordination.................... 70
Section 10.13. Amendments............................................... 70
iii
<PAGE>
ARTICLE 11
GUARANTEE OF NOTES
Section 11.01. Subsidiary Guarantee..................................... 71
Section 11.02. Execution and Delivery of Subsidiary Guarantee........... 72
Section 11.03. Subsidiary Guarantors May Consolidate, etc., on Certain
Terms.................................................... 73
Section 11.04. Releases Following Sale of Assets, Merger, Sale of
Capital Stock Etc........................................ 73
Section 11.06. Limitation on Subsidiary Guarantor Liability............. 74
Section 11.07. "Trustee" to Include Paying Agent........................ 74
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEE
Section 12.01. Agreement to Subordinate................................. 74
Section 12.02. Liquidation; Dissolution; Bankruptcy..................... 75
Section 12.03. Default on Designated Guarantor Senior Debt.............. 75
Section 12.04. Acceleration of Subsidiary Guarantees.................... 76
Section 12.05. When Distribution Must Be Paid Over...................... 76
Section 12.06. Notice by Subsidiary Guarantor........................... 76
Section 12.07. Subrogation.............................................. 76
Section 12.08. Relative Rights.......................................... 77
Section 12.09. Subordination May Not Be Impaired by Subsidiary
Guarantor................................................ 77
Section 12.10. Distribution or Notice to Representative................. 78
Section 12.11. Rights of Trustee and Paying Agent....................... 78
Section 12.12. Authorization to Effect Subordination.................... 78
Section 12.13. Amendments............................................... 79
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls............................. 79
Section 13.02. Notices.................................................. 79
Section 13.03. Communication by Holders of Notes with Other Holders of
Notes.................................................... 80
Section 13.04. Certificate and Opinion as to Conditions Precedent....... 81
Section 13.05. Statements Required in Certificate or Opinion............ 81
Section 13.06. Rules by Trustee and Agents.............................. 81
Section 13.07. No Personal Liability of Directors, Officers, Employees
and Stockholders......................................... 81
Section 13.08. Governing Law............................................ 82
Section 13.09. No Adverse Interpretation of Other Agreements............ 82
Section 13.10. Successors............................................... 82
Section 13.11. Severability............................................. 82
Section 13.12. Counterpart Originals.................................... 82
Section 13.13. Table of Contents, Headings, etc......................... 82
iv
<PAGE>
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Exhibit D FORM OF SUBSIDIARY GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
v
