SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
September 20, 1996 (July 19, 1996)
HOMELAND HOLDING CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 33-48862 73-1311075
(State or Other Jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2601 N. W. Expressway
Oklahoma City, OK 73112
(Address of Principal Executive Offices) (Zip Code)
(405) 879-6600
(Registrant's Telephone Number, Including Area Code)
<PAGE>
Item 3. Bankruptcy or Receivership
On July 19, 1996, the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court") entered an order
confirming the First Amended Plan of Reorganization of Homeland
Holding Corporation ("Holding") and its wholly-owned subsidiary,
Homeland Stores, Inc. ("Homeland" and together with Holding, the
"Company"), as modified (the "Plan of Reorganization").
The effective date of consummation for the Plan of
Reorganization was August 21, 1996 (the "Effective Date"). The
following summary of certain features of the Plan of Reorganization
is qualified in its entirety by reference to the Plan of
Reorganization, a copy of which is filed as an exhibit to this
report. Capitalized terms used and not defined herein have their
respective meanings under the Plan of Reorganization.
(1) On the Effective Date, the Old Notes ($95 million in aggregate
face amount plus accrued interest) were canceled and such
holders will receive (in the aggregate) $60 million face
amount of New Notes, $1.5 million in cash and approximately
60% of the New Common Stock. The New Notes are unsecured and
bear interest at 10% per annum and mature in 2003.
(2) On the Effective Date, all of the outstanding Old Common Stock
of Holding was canceled and the holders shall receive their
Ratable Share of (a) 250,000 shares of New Common Stock and
(b) 263,158 of New Warrants.
(3) On the Effective Date, the Company entered into a New Credit
Agreement consisting of a revolving credit facility of up to
$27,500,000 (subject to a borrowing base requirements) and a
term loan facility of $10,000,000. The New Credit Agreement
is secured by a security interest in, and liens on, in
substantially all of the Company's asset and will be
guaranteed by Holding.
(4) On the Effective Date, the claims of the banks relating to the
Old Credit Agreement, Allowed Priority Claims, Allowed
Miscellaneous Secured Claims, Allowed Interest of Holding as
sole holder of Homeland Common Stock and holders of the Old
Warrants were not impaired under the Plan of Reorganization.
(5) Holders of General Unsecured Claims (including certain trade
creditors for unpaid prepetition trade claims and the Allowed
Unsecured Noteholders' Claims) are entitled to receive their
Ratable Share of 4,450,000 shares of New Common Stock.
(6) On the Effective Date, each of Holding and Homeland adopted
amended and restated certificates of incorporation, the
principal effects of which are: (a) to eliminate the Old
Common Stock and Old Class B Common Stock of Holding, (b) to
authorize 7,500,000 shares of New Common Stock of Holding and
(c) to include a provision to prohibit the issuance of non-
voting securities as and to the extent required by Section
1123 (a) (6) of the Bankruptcy Code for both Homeland and
Holding.
(7) On the Effective Date, the Modified Union Agreements became
effective. The Modified Union Agreements, which are effective
for a term of five years, consist of five basic elements: (a)
wage rate and benefit contribution reductions and work rule
changes, (b) an employee buyout offer, (c) the establishment
of an employee stock bonus plan which will receive, or be
entitle to receive up to 522,222 shares of New Common Stock,
(d) the right to designate one member of the Board of
Directors and (e) eliminate certain wage reinstatement
provisions, incentive plans and "maintenance of benefits."
Prior to the Effective Date, Holding's certificate of
incorporation authorized the issuance of 81,000,000 shares of
capital stock, consisting of 40,500,000 shares of Old Common Stock
and 40,500,000 shares of Old Class B Common Stock. As stated
above, on the Effective Date, the Old Common Stock and Old Class B
Common Stock were canceled and New Common Stock will be issued to
certain creditors and the employee stock bonus plan, pursuant to
the Modified Union Agreements. The amended restated certificate of
incorporation, authorizes Holding to issue up to 7,500,000 shares
of New Common Stock, of which 4,450,000 and 250,000 shares will be
issued to the Unsecured Creditors and Old Common Stock Holders,
respectively, (on consummation of the Plan of Reorganization) and
up to 522,222 shares to the Employee Stock Bonus Plan over a period
of three years. Holding has also reserved for issuance 263,158
shares of New Common Stock issuable upon exercise of the New
Warrants and reserved 263,158 shares of New Common Stock for
issuance under the Management Stock Option Plan. The terms and the
conditions of the Management Stock Option Plan (including the
identity of the participants and the number of options to be
granted) shall be determined by the Board of Directors of
Reorganized Holding.
Under the Plan of Reorganization, Holding is required to
use its best efforts to (1) cause, as promptly as practical after
the Effective Date, the shares of the New Common Stock to be listed
with NASDAQ National Market System (or in the event, Holding fails
the National Market System listing requirements, on such other
exchange or system on which the New Common Stock may be listed) and
(2) to file, within 60 days after the Effective Date, a Form 10
Registration Statement with respect to the New Common Stock under
the Securities Act of 1934, as amended, and to cause such
registration statement to remain effective until the earlier of (a)
the seventh anniversary of the Effective Date, and (b) the first
date on which less than 10% of the outstanding New Common Stock is
publicly held.
An unaudited consolidated balance sheet of the Company as
of June 15, 1996, which sets forth information as to the assets and
liabilities of the Company, is filed as an exhibit to this report.
<PAGE>
Item 7. Financial Statements and Exhibits
(c) Exhibits filed as a part of this Report:
Exhibit No. Description
2b First Amended Joint Plan of
Reorganization of Homeland
Stores, Inc. and Homeland Holding
Corporation, as modified,
(Incorporated by reference to
Exhibit 2b to Form 10-Q dated
June 15, 1996)
10aaa Indenture, dated as of August 2,
1996, between Homeland Stores,
Inc, as Issuer, Homeland Holding
Corporation, as Guarantor and
Fleet National Bank , as Trustee.
99i Unaudited Consolidated Balance
Sheet as of June 15, 1996
(Incorporated by reference to
Form 10-Q dated June 15, 1996)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly authorized.
HOMELAND HOLDING CORPORATION
By: /s/ Larry W. Kordisch
Larry W. Kordisch, Executive
Vice President/Finance,
Treasurer, Chief Financial
Officer and Secretary
Dated:
HOMELAND STORES, INC.,
as Issuer,
HOMELAND HOLDING CORPORATION,
as Guarantor,
and
FLEET NATIONAL BANK,
as Trustee.
INDENTURE
Dated as of __________, 1996
$60,000,000
10% Senior Subordinated Notes due 2003
Reconciliation and Tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 1996
Trust Indenture Indenture
Act Section Section
310(a)(1) . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . 6.8
(b) . . . . . . . . . . 6.7, 6.9
312c . . . . . . . . . . 7.1
314(a) . . . . . . . . . . 7.3
(a)(4) . . . . . . . . . . 10.17
c(1) . . . . . . . . . . 1.3
c(2) . . . . . . . . . . 1.3
(e) . . . . . . . . . . 1.3
315(b) . . . . . . . . . . 6.1
316(a) (last
sentence) . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . 5.13
(b) . . . . . . . . . . 5.8
(c) . . . . . . . . . . 1.5
317(a)(1) . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . 5.4
318(a) . . . . . . . . . . 1.12
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . 1
Section 1.1 Definitions. . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitions. . . . . . . . . . . . 24
Section 1.3 Compliance Certificates and Opinions . . 25
Section 1.4 Form of Documents Delivered to Trustee. 25
Section 1.5 Acts of Holders. . . . . . . . . . . . . 26
Section 1.6 Notices, etc., to Trustee and Company. . 27
Section 1.7 Notice to Holders; Waiver. . . . . . . . 28
Section 1.8 Conflict of any Provision of Indenture
with Trust Indenture Act . . . . . . . . 28
Section 1.9 Effect of Headings and Table of Contents 28
Section 1.10 Successors and Assigns. . . . . . . . . 28
Section 1.11 Separability Clause . . . . . . . . . . 29
Section 1.12 Benefits of Indenture . . . . . . . . . 29
Section 1.13 Governing Law . . . . . . . . . . . . . 29
Section 1.14 Legal Holidays. . . . . . . . . . . . . 29
Section 1.15 No Recourse Against Others. . . . . . . 29
ARTICLE II SECURITY FORMS . . . . . . . . . . . . . . . 30
Section 2.1 Forms Generally. . . . . . . . . . . . . 30
Section 2.2 Form of Face of Security . . . . . . . . 30
Section 2.3 Form of Reverse of Security. . . . . . . 32
Section 2.4 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 35
Section 2.5 Form of Parent Guarantee . . . . . . . . 35
ARTICLE III THE SECURITIES. . . . . . . . . . . . . . . 36
Section 3.1 Title and Terms. . . . . . . . . . . . . 36
Section 3.2 Denominations. . . . . . . . . . . . . . 37
Section 3.3 Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . 37
Section 3.4 Temporary Securities . . . . . . . . . . 38
Section 3.5 Registration, Registration of
Transfer and Exchange. . . . . . . . . . 39
Section 3.6 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . 40
Section 3.7 Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . 40
Section 3.8 Persons Deemed Owners. . . . . . . . . . 42
Section 3.9 Cancellation . . . . . . . . . . . . . . 42
Section 3.10 Computation of Interest . . . . . . . . 42
Section 3.11 CUSIP Numbers . . . . . . . . . . . . . 42
ARTICLE IV SATISFACTION AND DISCHARGE . . . . . . . . . 43
Section 4.1 Satisfaction and Discharge of Indenture. 43
Section 4.2 Application of Trust Money . . . . . . . 44
ARTICLE V REMEDIES. . . . . . . . . . . . . . . . . . . 44
Section 5.1 Events of Default. . . . . . . . . . . . 44
Section 5.2 Acceleration of Maturity; Rescission . . 46
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . 47
Section 5.4 Trustee May File Proofs of Claim . . . . 47
Section 5.5 Trustee May Enforce Claims
Without Possession of Securities . . . . 48
Section 5.6 Application of Money Collected . . . . . 48
Section 5.7 Limitation on Suits. . . . . . . . . . . 49
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest. 50
Section 5.9 Restoration of Rights and Remedies . . . 50
Section 5.10 Rights and Remedies Cumulative . . . . . 50
Section 5.11 Delay or Omission Not Waiver . . . . . . 50
Section 5.12 Control by Holders . . . . . . . . . . . 51
Section 5.13 Waiver of Past Defaults. . . . . . . . . 51
Section 5.14 Undertaking for Costs. . . . . . . . . . 51
Section 5.15 Waiver of Stay or Extension. . . . . . . 52
Section 5.16 Event of Default from Willful Action . . 52
ARTICLE VI THE TRUSTEE. . . . . . . . . . . . . . . . . 52
Section 6.1 Notice of Defaults . . . . . . . . . . . 52
Section 6.2 Certain Rights of Trustee. . . . . . . . 53
Section 6.3 Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . 54
Section 6.4 May Hold Securities. . . . . . . . . . . 54
Section 6.5 Money Held in Trust. . . . . . . . . . . 55
Section 6.6 Compensation and Reimbursement . . . . . 55
Section 6.7 Conflicting Interests. . . . . . . . . . 55
Section 6.8 Corporate Trustee Required; Eligibility. 56
Section 6.9 Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . 56
Section 6.10 Acceptance of Appointment by Successor . 57
Section 6.11 Merger, Conversion, Consolidation
or Succession to Business. . . . . . . . 58
Section 6.12 Preferential Collection of Claims
Against Company. . . . . . . . . . . . . 58
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY. . . . . . . . . . . . . . . . 58
Section 7.1 Disclosure of Names and Addresses of
Holders. . . . . . . . . . . . . . . . . 58
Section 7.2 Reports by Trustee . . . . . . . . . . . 59
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . 59
Section 8.1 Company May Consolidate, etc., Only
on Certain Terms . . . . . . . . . . . . 59
Section 8.2 Successor Substituted. . . . . . . . . . 60
ARTICLE IX SUPPLEMENTAL INDENTURES. . . . . . . . . . . 60
Section 9.1 Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . 60
Section 9.2 Supplemental Indentures with Consent
of Holders; Payments for Consents. . . . 61
Section 9.3 Execution of Supplemental Indentures . . 62
Section 9.4 Effect of Supplemental Indentures. . . . 63
Section 9.5 Conformity with Trust Indenture Act. . . 63
Section 9.6 Reference in Securities to
Supplemental Indentures. . . . . . . . . 63
Section 9.7 Effect on Senior Indebtedness. . . . . . 63
ARTICLE X COVENANTS . . . . . . . . . . . . . . . . . . 64
Section 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . 64
Section 10.2 Maintenance of Office or Agency. . . . . 64
Section 10.3 Money for Security Payments to Be
Held in Trust. . . . . . . . . . . . . . 65
Section 10.4 SEC Reports. . . . . . . . . . . . . . . 66
Section 10.5 Corporate Existence . . . . . . . . . . 66
Section 10.6 Payment of Taxes and other Claims;
Compliance with Law . . . . . . . . . . 67
Section 10.7 Maintenance of Properties; Insurance. . 67
Section 10.8 Limitation on Indebtedness. . . . . . . 68
Section 10.9 Limitation on Restricted Payments . . . 68
Section 10.10 Transactions with Affiliates. . . . . . 71
Section 10.11 Limitation on Liens . . . . . . . . . . 71
Section 10.12 Limitation on Other Senior
Subordinated Indebtedness. . . . . . . 72
Section 10.13 Restriction on Issuance of Preferred
Stock of Subsidiaries. . . . . . . . . 72
Section 10.14 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries. . 72
Section 10.15 Purchase of Securities upon Change
of Control . . . . . . . . . . . . . . 72
Section 10.16 Limitation on Asset Sales. . . . . . . 76
Section 10.17 Statement as to Compliance; Notice of
Default; Provision of Financial
Statements . . . . . . . . . . . . . . 80
Section 10.18 Subsidiary Guarantees. . . . . . . . . 80
ARTICLE XI REDEMPTION OF SECURITIES . . . . . . . . . . 81
Section 11.1 Right of Redemption . . . . . . . . . . 81
Section 11.2 Applicability of Article. . . . . . . . 81
Section 11.3 Election to Redeem; Notice to Trustee . 81
Section 11.4 Selection by Trustee of Securities
to Be Redeemed. . . . . . . . . . . . . 81
Section 11.5 Notice of Redemption. . . . . . . . . . 82
Section 11.6 Deposit of Redemption Price . . . . . . 82
Section 11.7 Securities Payable on Redemption Date . 83
Section 11.8 Securities Redeemed in Part . . . . . . 83
ARTICLE XII SUBORDINATION . . . . . . . . . . . . . 84
Section 12.1 Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . 84
Section 12.2 Payment Over of Proceeds upon
Dissolution, etc. . . . . . . . . . . . 84
Section 12.3 No Payment When Senior Indebtedness
in Default. . . . . . . . . . . . . . . 86
Section 12.4 Payment Permitted if No Default . . . . 86
Section 12.5 Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . . 87
Section 12.6 Provisions Solely to Define Relative
Rights. . . . . . . . . . . . . . . . . 87
Section 12.7 Trustee to Effectuate Subordination . . 88
Section 12.8 No Waiver of Subordination Provisions . 88
Section 12.9 Notice to Trustee . . . . . . . . . . . 88
Section 12.10 Reliance on Judicial Order or
Certificate of Liquidating Agent . . . 89
Section 12.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . 89
Section 12.12 Article Applicable to Paying Agents. . 90
ARTICLE XIII DEFEASANCE . . . . . . . . . . . . . . 90
Section 13.1 Company's Option to Effect
Defeasance or Covenant Defeasance . . . 90
Section 13.2 Defeasance and Discharge. . . . . . . . 90
Section 13.3 Covenant Defeasance . . . . . . . . . . 91
Section 13.4 Conditions to Defeasance. . . . . . . . 91
Section 13.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . 93
Section 13.6 Reinstatement . . . . . . . . . . . . . 94
ARTICLE XIV GUARANTEE OF SECURITIES . . . . . . . . 94
Section 14.1 Guarantee . . . . . . . . . . . . . . . 94
Section 14.2 Execution and Delivery of Guarantee . . 95
Section 14.3 Limitation of Guarantor's Liability . . 96
Section 14.4 Guarantee Unconditional, etc. . . . . . 96
Section 14.5 Covenant of Holding . . . . . . . . . . 98
Section 14.6 Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness. . . . 98
Section 14.7 Payment over of Proceeds upon
Dissolution, etc., of a Guarantor . . . 98
Section 14.8 Suspension of Guarantee Obligations When
Senior Indebtedness in Default. . . . . 100
Section 14.9 Subrogation to Rights of Holders of
Guarantor Senior Indebtedness . . . . . 101
Section 14.10 Guarantor Provisions Solely to
Define Relative Rights . . . . . . . . 102
Section 14.11 Trustee to Effectuate Subordination
of Guarantee Obligations . . . . . . . 102
Section 14.12 No Waiver of Guarantee
Subordination Provisions . . . . . . . 103
Section 14.13 Release of a Guarantor . . . . . . . . 100
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . 96
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . 97
ACKNOWLEDGMENTS
INDENTURE, dated as of ________, 1996, by and among
HOMELAND STORES, INC., a Delaware corporation (the
"Company"), HOMELAND HOLDING CORPORATION, a Delaware
corporation and the guarantor of the Company's
obligations hereunder ("Holding" or the
"Guarantor"), and FLEET NATIONAL BANK, a national
banking association, as trustee (the"Trustee").
RECITALS
WHEREAS, the Company has duly authorized the
creation of an issue of its 10% Senior Subordinated
Notes due 2003 (the"Securities") on the terms and
in the amount hereinafter set forth, and Holding has
duly authorized the issuance of the Parent Guarantee
(as defined below), and each of the Company and
Holding has duly authorized the execution and
delivery of this Indenture;
WHEREAS, this Indenture is subject to, and shall be
governed by, the provisions of the Trust Indenture
Act (as defined below) that are required to be part
of, and to govern indentures qualified under, the
Trust Indenture Act;
WHEREAS, all acts and things necessary have been
done to make the Securities, when executed by the
Company and authenticated and delivered hereunder
and duly issued by the Company, the valid, binding
and legal obligations of the Company, and to make
this Indenture a valid agreement of the Company in
accordance with its terms; and
WHEREAS, all acts and things necessary have been
done to make the Parent Guarantee the valid, binding
and legal obligation of Holding, and to make this
Indenture a valid agreement of Holding in accordance
with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
acquisition of the Securities by the Holders (as
defined below) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article I have
the meanings assigned to them in this Article
and include the plural as well as the singular;
(b) all other terms used herein which are
defined in the Trust Indenture Act, either
directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in
accordance with GAAP (as defined below);
(d) the words "herein," "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to
any particular Article, Section or other
subdivision;
(e) the word "or" is not exclusive; and
(f) provisions apply to successive events and
transactions.
Certain terms, used principally in Articles V and
XIII, are defined in those Articles.
"Acquired Indebtedness" means Indebtedness of a
Person (i) existing at the time such Person becomes
a Subsidiary of any other Person (or is merged with
any other Person) or (ii) assumed in connection with
the acquisition of assets from a Person, other than
Indebtedness Incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary
of such other Person or such merger or acquisition,
as the case may be.
"Additional Assets" means any property (other than
cash, Cash Equivalents or securities) used in any
business in which the Company or any Subsidiary is
engaged as of the date hereof or any business
ancillary thereto.
"Affiliate" means, with respect to any specified
Person, (i) any other Person directly or indirectly
controlling or controlled by or under direct or
indirect common control with such specified Person,
(ii) any spouse, immediate family member or other
relative who has the same principal residence of any
Person described in (i) above, (iii) any trust in
which any such Person described in clause or (i) or
(ii) above has a beneficial interest and (iv) any
corporation of which any such Person described in
clause (i), (ii) or (iii) above collectively owns
more than 50% of the equity of such entity. For
purposes of this definition, _beneficial ownership_
(as defined in Rule 13d-3 under the Exchange Act) of
10% or more of the Voting Stock of a Person shall be
deemed to be control of such Person.
"Asset Sale" has the meaning specified in Section
10.16.
"Average Life to Stated Maturity" means, as of the
date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i)
the sum of the products of (a) the number of years
from the date of determination to the date or dates
of each successive scheduled principal payment of
such Indebtedness multiplied by (b) the amount of
each such principal payment by (ii) the sum of all
such principal payments.
"AWG" means Associated Wholesale Grocers, Inc., a
Missouri corporation.
"AWG Equity" means all equity, deposits, credits,
sums and indebtedness of any kind or description
whatsoever, at any time owed by AWG to the Company
or at any time standing in the name of or to the
credit of the Company on the books and/or records of
AWG, including, without limitation, AWG Membership
Stock, members' deposit certificates, patronage
refund certificates, members' savings, direct
patronage or year-end patronage, concentrated
purchase allowance, quarterly payments and any other
amounts due from AWG to the Company under the AWG
Supply Agreement.
"AWG First Offer Rights" means (i) AWG's right of
first offer with respect to the stores owned or
operated by the Company listed on Exhibit B to the
AWG Supply Agreement and (ii) any public recordation
of such first offer rights, provided that any such
public recordation shall be terminable from time to
time as set forth in Section 7(f) of the AWG Supply
Agreement.
"AWG Liens" means (i) Liens on AWG Equity owned or
hereafter acquired by the Company to secure the
Company's obligations to AWG under the AWG Supply
Agreement and the AWG Membership Documents, (ii)
Liens consisting of the AWG Use Restrictions and
(iii) Liens consisting of the AWG First Offer
Rights.
"AWG Membership Documents" means (i) the Application
for Membership by Homeland Stores, Inc., between the
Company and AWG and (ii) the Stock Power of Attorney
granted to AWG by the Company with respect to the
AWG Membership Stock owned by the Company.
"AWG Membership Stock" means the Class A Common
Stock, par value $100 per share, of AWG.
"AWG Supply Agreement" means the Supply Agreement,
dated as of April 21, 1995, between the Company and
AWG, as such agreement may be amended, amended and
restated, supplemented or otherwise modified from
time to time.
"AWG Use Restrictions" means (i) the Company's
agreement under Sections 7(g) and 8(b) of the AWG
Supply Agreement to dedicate (to the extent of its
interest therein (including leasehold interests))
certain real property and the improvements thereon
to the exclusive use of a retail grocery facility
(including all activities which from time to time
are commonly associated with the operation of a
grocery facility) which is owned by a retail member
of AWG and (ii) any public recordation of such
agreement, provided that any such public recordation
shall be terminable from time to time as set forth
in Section 8(b) of the Supply Agreement.
"Board of Directors" of any Person means the board
of directors of such Person or any duly authorized
committee of such board.
"Board Resolution" of any Person means a copy of a
resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly
adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such
certification and on the date delivered to the
Trustee.
"Business Day" means any day that is not a day on
which banking institutions in The City of New York
or the city in which the principal corporate trust
office of the Trustee is located are authorized or
obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means any
obligations of such Person and its Subsidiaries on a
consolidated basis under any capital lease that, in
accordance with GAAP, is required to be recorded as
a capitalized lease obligation; and for purposes of
the Indenture, the amount of such obligations at any
date shall be the capitalized amount thereof at such
date, determined in accordance with GAAP.
_Capital Stock_ of any Person means any and all
shares, interests, participations, or other
equivalents (however designated) of such Person_s
capital stock (including any Preferred Stock)
whether now outstanding or issued after the Issue
Date.
"Cash Equivalents" means (i) securities issued
directly or fully guaranteed or insured by the
United States government or any agency or
instrumentality thereof having maturities of not
more than six months from the date of acquisition,
(ii) certificates of deposit and eurodollar time
deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight
bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess
of $500 million and a Thomson Watch Rating of "B" or
better, (iii) repurchase obligations and reverse
repurchase obligations of the types described in
clauses (i) and (ii) entered into with any financial
institution meeting the qualifications specified in
clause (ii) above, in each case maturing within six
months from the date of acquisition and (iv)
commercial paper having the highest rating
obtainable from Moody's Investors Service, Inc. or
Standard & Poor's Corporation and in each case
maturing within six months after the date of
acquisition.
"Change of Control" means such time as:
(i) a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange
Act) (other than any Permitted Holders) is or
becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act; provided
that a "person" or "group" shall be deemed to
be a "beneficial owner" for purposes of this
definition even if its right to acquire
beneficial ownership of Voting Stock arises
after a 60-day period) of more than fifty
percent (50%) of the total voting power of the
then outstanding Voting Stock of the Company or
Holding;
(ii) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange
Act) (other than any Permitted Holders) has the
ability to designate a majority of the Board of
Directors of the Company or Holding;
(iii) the Company or Holding liquidates or dissolves
or adopts a plan of liquidation;
(iv) Holding shall cease to own and control,
beneficially and of record, 100% of the Capital
Stock of the Company;
(v) the Company or Holding sells, assigns,
transfers or otherwise disposes of all or
substantially all of its assets, in one
transaction or a series of related
transactions, to any Person other than a Wholly
Owned Subsidiary of the Company;
(vi) during any 24 month period, individuals who at
the beginning of such period constituted the
Board of Directors of the Company or Holding
(together with any new directors whose election
by such Board or whose nomination for election
by the stockholders of the Company or Holding
was approved by a vote of a majority of the
directors then still in office who were either
directors at the beginning of such period or
whose election or nomination for election was
previously so approved) ceases for any reason
to constitute a majority of the Board of
Directors of the Company or Holding then in
office; provided, however, that this clause
(vi) shall not be applicable if the continuing
directors do not constitute at least a majority
of the Board of Directors of the Company or
Holding, as the case may be, as a result of
directors nominated by any Permitted Holder
constituting a majority of the Board of
Directors of the Company or Holding); or
(vii) the Company or Holding consolidates with or
merges with or into another Person pursuant to
a transaction in which the outstanding Voting
Stock of the Company or Holding is changed into
or exchanged for cash, Cash Equivalents,
securities or other property, other than any
transaction in which (a) no Redeemable Capital
Stock is issued and (b) holders of Voting Stock
of the Company or Holding, as the case may be,
immediately prior to such transaction
"beneficially own" (as defined in Rule 13d-3
under the Exchange Act) not less than 70% of
the Voting Stock of the surviving corporation
of such merger or consolidation outstanding
immediately after such transaction.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted,
created under the Exchange Act or, if at any time
after the execution of this Indenture such
Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument, until a
successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor
Person. To the extent necessary to comply with the
requirements of the provisions of Sections 310
through 317 of the Trust Indenture Act as they are
applicable to the Company, the term "Company" shall
include any other obligor with respect to the
securities for the purposes of complying with such
provisions.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company
(i) by its Chairman of the Board, its President or a
Vice President and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee; provided,
however, that such written request or order may be
signed by any two of the officers or directors
listed in clause (i) above in lieu of being signed
by any of the officers listed in clause (ii) above.
"Consolidated Depreciation and Amortization Expense"
means, with respect to any Person for any period for
which the determination thereof is to be made, the
aggregate depreciation and amortization expense
(including, without limitation, amortization of
goodwill, other intangibles, debt discount and debt
issue costs) reducing Consolidated Net Income of
such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance
with GAAP.
"Consolidated EBITDA" means, with respect to any
Person for any period for which the determination
thereof is to be made, the sum (without duplication)
for such period of (i) Consolidated Net Income plus,
to the extent deducted in determining Consolidated
Net Income, each of (ii) Consolidated Income Tax
Expense, (iii) Consolidated Depreciation and
Amortization Expense, (iv) Consolidated Fixed
Charges, (v) Consolidated Post Retirement Benefits
Other Than Pensions and (vi) non-cash extraordinary
charges.
"Consolidated Fixed Charges" means, with respect to
any Person for any period for which the
determination thereof is to be made, the sum
(without duplication) of (i) the aggregate amount of
interest, whether expensed or capitalized, paid,
accrued or scheduled to be paid or accrued during
such period (including, without limitation, any non-
cash interest payments or accruals, the interest
portion of Capital Lease Obligations, all
amortization of original issue discount, net cash
costs pursuant to Interest Swap Obligations and
Currency Agreements (including amortization of fees)
and the interest component of any deferred payment
obligation) of such Person and its Subsidiaries,
determined on a consolidated basis in accordance
with GAAP, and (ii) dividends required to be made in
respect of Preferred Stock and Redeemable Capital
Stock.
"Consolidated Income Tax Expense" means, with
respect to any Person for any period for which the
determination thereof is to be made, the aggregate
of the income tax expense of such Person and its
Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Coverage Ratio" with respect
to any period for which the determination thereof is
to be made means the ratio of (i) the aggregate of
Consolidated EBITDA for such period (taken as one
accounting period) to (ii) the aggregate of
Consolidated Fixed Charges; provided that (x) in
making such computation, the Consolidated Fixed
Charges attributable to interest on any Indebtedness
computed on a pro forma basis and (A) bearing a
floating interest rate shall be computed as if the
rate in effect on the date of computation had been
the applicable rate for the entire period and (B)
bearing, at the option of the obligor thereon, a
fixed or floating rate of interest, shall be
computed by applying, at the option of the Company,
either the fixed or floating rate and (y) there
shall be excluded from the determination of
Consolidated Fixed Charges any dividends required to
be made in respect of Preferred Stock or Redeemable
Capital Stock of the Company or of a Wholly Owned
Subsidiary of the Company for the applicable period.
"Consolidated Net Income" means, with respect to any
Person for any period for which the determination
thereof is to be made, the consolidated net income
(or loss) of such Person and its Subsidiaries for
such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such
net income (or loss), by excluding (i) the non-
recurring cumulative effect of accounting changes,
(ii) the portion of net income (or loss) of such
Person and its Subsidiaries allocable to minority
interests in unconsolidated Persons to the extent
that cash dividends or distributions have not
actually been received by such Person or one of its
Subsidiaries, (iii) net income (or loss) of any
Person combined with such Person or any of its
Subsidiaries in a _pooling of interests_ basis
attributable to any period prior to the date of
combination, and (iv) the net income of any
Subsidiary to the extent that the declaration of
dividends or similar distributions by that
Subsidiary of that income is subject to a Payment
Restriction.
"Consolidated Net Worth" means, with respect to any
Person as of any date, the sum of (i) the
consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of
such date plus (ii) the respective amounts reported
on such Person's balance sheet as of such date with
respect to any series of Preferred Stock (other than
Redeemable Capital Stock) that by its terms is not
entitled to the payment of dividends unless such
dividends may be declared and paid only out of net
earnings in respect of the year of such declaration
and payment, but only to the extent of any cash
received by such Person upon issuance of such
Preferred Stock, less (x) all write-ups (other than
write-ups of tangible assets of a going concern
business made within 12 months after the acquisition
of such business) subsequent to the Issue Date in
the book value of any asset owned by such Person or
a consolidated Subsidiary of such Person, (y) all
Investments as of such date in unconsolidated
Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted
Investments), and (z) all unamortized debt discount
and expense and unamortized deferred charges as of
such date, all of the foregoing determined in
accordance with GAAP.
"Consolidated Post Retirement Benefits Other Than
Pensions" means the noncash portion of retirement
benefits other than pensions as defined in FASB
Statements 88, 106 and 112, determined in accordance
with GAAP.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its
corporate trust business shall be principally
administered, which office at the date of execution
of this Indenture is located at 777 Main Street,
Hartford, Connecticut 06115; Attention: Corporate
Trust Department.
"corporation" includes corporations, associations,
partnerships, limited liability companies and
business trusts.
"Credit Agreement" means (i) the New Credit
Agreement, together with all amendments, documents
and instruments from time to time delivered in
connection with the New Credit Agreement (including,
without limitation, any guaranty agreements and
security documents), as in effect on the date hereof
and, subject to the proviso to the next succeeding
sentence, as the New Credit Agreement and such other
agreements, documents and instruments may be further
amended, amended and restated, renewed, extended,
restructured, supplemented or otherwise modified
from time to time, and (ii) any credit agreement,
loan agreement, note purchase agreement, indenture
or other agreement, document or instrument
refinancing, refunding or otherwise replacing the
New Credit Agreement or any other agreement deemed a
Credit Agreement under clause (i) or (ii) hereof,
whether or not with the same agent, trustee,
representative, lenders or holders, and, subject to
the proviso to the next succeeding sentence,
irrespective of any changes in the terms and
conditions thereof. Without limiting the generality
of the foregoing, the term "Credit Agreement" shall
include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or
modification to any Credit Agreement, including any
agreement (x) extending the maturity of any
Indebtedness incurred thereunder or contemplated
thereby, (y) adding or deleting borrowers or
guarantors thereunder, so long as borrowers and
issuers include only the Company and its
Subsidiaries and their respective successors and
assigns or (z) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed
thereunder, provided that on the date thereof such
Indebtedness would be Permitted Indebtedness under
clause (i) or (viii) of the definition of Permitted
Indebtedness.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar
agreement or arrangement designed to protect the
Company or any Subsidiary against fluctuations in
currency values.
"Default" means any event that is, or after notice
or passage of time or both would be, an Event of
Default.
"Defaulted Interest" has the meaning given such
term in Section 3.7.
"Default Rate" means a rate of interest per annum
equal to the rate per annum of interest provided in
the Securities plus 200 basis points.
"Event of Default" has the meaning specified in
Article V.
"Excess Proceeds Amount" has the meaning specified
in Section 10.16.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Fair Market Value" means, with respect to any asset
or property, the sale value that would be obtained
in an arm's length transaction between an informed
and willing seller under no compulsion to sell and
an informed and willing buyer under no compulsion to
buy. "Fair Market Value" shall be determined by the
Board of Directors of the Company acting in good
faith and shall be evidenced by a duly and properly
adopted resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the
Trustee.
"Federal Bankruptcy Code" means the Bankruptcy Act
of Title 11 of the United States Code, as amended
from time to time.
"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 as of the Issue
Date.
"Guarantee" means, collectively, the Parent
Guarantee and any Subsidiary Guarantee.
"Guarantor" means, collectively, (i) Holding, (ii)
any Subsidiary Guarantor and (iii) any successor or
assign of a Guarantor.
"Guarantor Senior Indebtedness" means the principal
of, premium, if any, and accrued and unpaid interest
on (including, without limitation, interest at the
contract rate subsequent to the commencement of any
bankruptcy, insolvency or similar proceeding with
respect to the Guarantor and with respect to the
Credit Agreement only, such interest whether or not
a claim therefor is allowed in such proceeding) and
all reasonable fees and reasonable expenses under or
in respect of Indebtedness of the Guarantor under
the Credit Agreement.
"Guaranty" means, as applied to any obligation or
liability, (i) a guaranty (other than by endorsement
of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation,
liability or Indebtedness of another Person and (ii)
an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to
assure in any way the payment or performance (or
payment of damages in the event of nonperformance)
of any part or all of such obligation, liability or
Indebtedness of another Person, including, without
limiting the foregoing, the payment of amounts drawn
down by letters of credit, and the terms
"guarantees" and "guaranteed" shall have correlative
meanings. Notwithstanding anything herein to the
contrary, a guaranty shall not include any agreement
solely because such agreement creates a Lien on the
assets of any person.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Holding" means Homeland Holding Corporation, a
corporation incorporated under the laws of the State
of Delaware.
"Incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue,
incur (by conversion, exchange or otherwise),
assume, guaranty (including the guaranty of
Indebtedness of a Subsidiary or other Affiliate of
such Person) or otherwise become liable in respect
of such Indebtedness or other obligation or the
recording, as required pursuant to GAAP or
otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and
"Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the
foregoing); provided that the accrual of interest
(whether such interest is payable in cash or in
kind) and the accretion of original issue discount
shall not be deemed an Incurrence of Indebtedness;
provided, further that (a) any Indebtedness or
Redeemable Capital Stock of a Person existing at the
time such Person becomes (after the date of this
Indenture) a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) of the
Company shall be deemed to be Incurred for purposes
of Section 10.8 by such Subsidiary at the time it
becomes a Subsidiary of the Company and (b) any
amendment, modification or waiver of any document
pursuant to which Indebtedness was previously
incurred shall be deemed to be an Incurrence of
Indebtedness unless such amendment, modification or
waiver does not (i) increase the principal or
premium thereof or interest rate thereon (including
by way of original issue discount), (ii) change to
an earlier date the stated maturity thereof or the
date of any scheduled or required principal payment
thereon or the time or circumstances under which
such Indebtedness may or shall be redeemed or the
Average Life to Stated Maturity thereof, (iii) if
such Indebtedness is subordinated to the Securities,
modify or affect, in any manner adverse to the
Holders, such subordination, (iv) if the Company is
the obligor thereon, provide that a Subsidiary of
the Company not already an obligor thereon shall be
an obligor thereon or (v) violate, or cause the
Indebtedness to violate, the provisions of Section
10.14.
"Indebtedness" means, with respect to any Person,
without duplication, (i) all liabilities, contingent
or otherwise, of such Person (a) for borrowed money
(whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a
portion thereof), (b) evidenced by bonds, notes,
debentures or similar instruments or representing
the balance deferred and unpaid of the purchase
price of any property or c for the payment of money
relating to a Capital Lease Obligation; (ii)
obligations of such Person in respect of letters of
credit (including reimbursement obligations with
respect thereto); (iii) Interest Swap Obligations of
such Person or obligations of such Person with
respect to the Currency Agreements; (iv) all
liabilities of others of the kind described in the
preceding clause (i), (ii), (iii) that (a) such
Person has guaranteed, (b) have been Incurred by a
partnership in which it is a general partner (to the
extent such Person is liable, contingently or
otherwise therefor) or c are otherwise its legal
liability (other than endorsements for collection in
the ordinary course of business); and (v) all
obligations of others secured by a Lien to which any
of the properties or assets (including, without
limitation, leasehold interests and any other
tangible or intangible property rights) of such
Person are subject, whether or not the obligations
secured thereby shall have been assumed by such
Person or shall otherwise be such Persons_s legal
liability; provided, however, that notwithstanding
anything in the forgoing that may be deemed to be to
the contrary, Indebtedness shall not include (i) any
Trade Payables and any other accrued current
liabilities Incurred in the ordinary course of
business as the deferred purchase price of property
acquired in the ordinary course of business; (ii)
liabilities arising from guarantees to suppliers,
lessors, contractors, franchisees or customers
Incurred in the ordinary course of business
(exclusive of obligations for the payment of money
borrowed); and (iii) liabilities from the draft or
similar instrument drawn against insufficient funds
in the ordinary course of business; provided that
such liabilities are extinguished within five
Business Days of their Incurrence and (iv)
prepayments of, or loans and advances with respect
to, any receivables owing to the Company or any
Subsidiary under the AWG Supply Agreement. The
amount of Indebtedness of any Person at any date
shall be, without duplication, (i) the outstanding
balance at such date of all unconditional
obligations as described above and the maximum
liability of any such contingent obligations at such
date and (ii) in the case of Indebtedness of others
secured by a Lien to which the property or assets
owned or held by such Person is subject but which is
otherwise nonrecourse to such Person, the lesser of
the Fair Market Value at such date of any assets
subject to a Lien securing the Indebtedness of
others and the amount of the Indebtedness secured.
"Indenture" means this instrument as originally
executed (including all exhibits and schedules
hereto) and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of
an installment of interest on the Securities.
"Interest Swap Obligations" means the obligations of
any Person pursuant to any arrangement with any
other Person whereby, directly or indirectly, such
person is entitled to receive from time to time
periodic payments calculated by applying either a
fixed or floating rate of interest on a stated
notional amount in exchange for periodic payments
made by such Person calculated by applying a fixed
or floating rate of interest on the same notional
amount and shall include any interest rate
protection agreement, interest rate future, interest
rate option or other interest rate hedge
arrangement.
"Investment" means, directly or indirectly, (i) any
advance, loan or other extension of credit or
capital contribution to (by means of any transfer of
cash or other property to others or any payment for
property or services for the account or use of
others), (ii) any purchase or acquisition by such
Person of any stock, bonds, notes, debentures or
other debt or equity interests or other securities
issued or owned by any other Person or (iii) any
purchase or acquisition by such Person of any group
of assets constituting a business. Investments
shall not include extensions of trade credit on
commercially reasonable terms in accordance with
normal trade practices of the Company and its
Subsidiaries.
"Issue Date" means , 1996.
"Lien" means any mortgage, charge, pledge, lien,
privilege, security interest or encumbrance of any
kind (including any conditional sale or other title
retention agreement).
"Material Adverse Effect" means, with respect to the
Company, any circumstance, change, event,
transaction, loss, failure or other occurrence of a
business, economic, financial or other operational
nature, any development involving compensation of or
relations with employees and any determination in
any litigation, arbitration or governmental
investigation or proceeding, having, in any such
case, a material adverse effect on (a) the business,
assets, properties, revenues, financial condition or
operations of the Company and its Subsidiaries,
taken as a whole, or (b) the ability of the Company
to perform any of its obligations hereunder.
"Maturity" when used with respect to any Security
means the date on which the principal of (and
premium, if any) and interest on such Security
becomes due and payable as therein or herein
provided, whether at Stated Maturity, Change of
Control Purchase Date, Asset Sale Purchase Date or
Redemption Date and whether by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" means, with respect to any Asset
Sale, the proceeds in the form of cash or Cash
Equivalents (including payments in respect of
deferred payment obligations when received in the
form of cash or Cash Equivalents) received by the
Company or any of its Subsidiaries from such Asset
Sale, net of (i) reasonable out-of-pocket expenses
and fees (including, without limitation, brokerage
commissions and fees and expenses of legal counsel
and investment bankers) relating to such Asset Sale,
(ii) taxes paid or payable as a result of such Asset
Sale (including, without limitation, income taxes
reasonably estimated to be actually payable as a
result of any disposition of property within two
years of the date of such disposition and after
taking into account any reduction in tax liability
due to available tax credits or deductions and any
tax sharing arrangements), (iii) repayment of
Indebtedness that is required to be repaid in
connection with such Asset Sale and (iv) appropriate
amounts to be provided by the Company or any
Subsidiary of the Company, as the case may be, as a
reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and
retained by the Company or any Subsidiary of the
Company, as the case may be, after such Asset Sale,
including, without limitation, pension and other
post-employment benefit liabilities, liabilities
related to environmental matters and liabilities
under any indemnification obligations associated
with such Asset Sale, all as reflected in an
Officers_ Certificate delivered to the Trustee;
provided, however, that the amount of any such
reserve shall constitute Net Cash Proceeds if and
when it no longer is required to be maintained in
accordance with GAAP but only to the extent that the
amount originally reserved was not utilized for its
specified purpose.
"New Credit Agreement" means the Credit Agreement,
dated as of , 1996, among the Company, Holding as
guarantor, the lenders named therein and
, as agent for such lenders.
"Obligations" means any principal, interest
(including, without limitation, any interest
accruing subsequent to an event specified in
Sections 5.1(f) and 5.1(g), whether or not such
interest is an allowed claim enforceable against the
debtor in a bankruptcy case under the Federal
Bankruptcy Code), penalties, fees, expenses and
other monetary liabilities payable under the
Securities or this Indenture.
"Officer" of any Person means the Chairman of the
Board, the President, any Senior or Executive Vice
President, any Vice President, the Treasurer, an
Assistant Treasurer, the Secretary, an Assistant
Secretary or the Controller of such Person.
"Officers' Certificate" means a certificate signed
by two Officers (one of whom must be the principal
executive officer, principal financial officer or
principal accounting officer) of any Person and
conforming to the requirements set forth in Section
1.3.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be reasonably acceptable to the Trustee. Each
such opinion shall include the statements provided
for in Trust Indenture Act Section 314(e) to the
extent applicable.
"Other Permitted Liens" means (i) Liens for taxes,
assessments, governmental charges or claims which
are not yet delinquent or which are being contested
in good faith by appropriate proceedings, which
proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject
to such Lien, and for which a reserve or other
appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (ii)
statutory Liens of landlords, vendors and laborers
and carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's, or other
like Liens arising in the ordinary course of
business and with respect to amounts which are not
yet delinquent or which are being contested in good
faith by appropriate proceedings, for which a
reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made;
(iii) Liens Incurred or deposits made in the
ordinary course of business in connection with
workers_ compensation, unemployment insurance and
other types of social security or other insurance-
related obligations (including, without limitation,
in respect of deductibles, self-insured retention
amounts and premiums and adjustments thereto); (iv)
Liens Incurred or deposits made to secure the
performance of tenders, bids, leases, public or
statutory obligations, surety and appeal bonds,
government contracts, progress payments, performance
and return-of-money bonds and other obligations of a
like nature Incurred in the ordinary course of
business (exclusive of obligations for the payment
of borrowed money); (v) zoning restrictions,
licenses, covenants, reservations, easements, rights-
of-way, restrictions, minor defects or
irregularities in title (and with respect to
leasehold interests, mortgages, obligations, liens
and other encumbrances Incurred or permitted to
exist and arising by, through or under a landlord or
owner of the leased property, with or without
consent of the lessee) and other similar charges or
encumbrances not interfering in any material respect
with the business of the Company or any Subsidiary
Incurred in the ordinary course of business; and
(vi) Liens Incurred in the ordinary course of
business securing reimbursement obligations with
respect to commercial letters of credit permitted
under this Indenture which encumber documents and
other property relating to such letters of credit or
products and proceeds thereof.
"Outstanding" when used with respect to the
Securities means, as of the date of determination,
all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for whose
payment, redemption or purchase money in the
necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and
segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for
the Holders of such Securities, and the Trustee
or such Paying Agent is not prohibited from
paying such money to the Holders on that date
pursuant to the terms of Article XII; provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given
pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided
in Section 13.1, with respect to which the
Company has effected defeasance as provided in
Article XIII; and
(d) Securities in exchange for or in lieu of
which other Securities have been authenticated
and delivered pursuant to this Indenture, other
than any such Securities in respect of which
there shall have been presented to the Trustee
proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose
hands the Securities are valid obligations of
the Company;
provided, however, that, in determining whether the
Holders of the requisite principal amount of
Outstanding Securities have given any request,
demand, direction, consent or waiver hereunder,
Securities owned by the Company, any Guarantor, or
any other obligor upon the Securities, or any
Affiliate of the Company or such other obligor,
shall be disregarded and deemed not to be
outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, direction, consent or waiver, only
Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is
not the Company, any Guarantor, or any other obligor
upon the Securities or any Affiliate of the Company
or such other obligor.
"Parent Guarantee" means the Guarantee of Holding
incorporated in Section 14 of this Indenture and
made a part of the Securities.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (or premium, if any)
or interest on any Securities on behalf of the
Company.
"Payment Restriction" means with respect to a
Subsidiary of any Person, any encumbrance,
restriction or limitation, whether by operation of
the terms of its charter or by reason of any
agreement, instrument, judgment, decree or order, on
the ability of (i) such Subsidiary to (a) pay
dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability
or Indebtedness owed to such Person or any other
Subsidiary of such Person, (b) make loans or
advances to such Person or any other Subsidiary of
such Person, or c transfer any of its properties or
assets to such Person or any other Subsidiary of
such Person, or (ii) such Person or any other
Subsidiary of such Person to receive or retain any
such (a) dividends, distributions or payments, (b)
loans or advances, or c transfer of properties or
assets.
"Permitted Holder" means any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act) that "beneficially owns" (as
defined in Rule 13d-3 under the Exchange Act,
provided that a "person" or "group" shall be deemed
to be a "beneficial owner" for purposes of this
definition even if its right to acquire beneficial
ownership of Voting Stock arises after a 60-day
period) more than five percent (5%) of the Voting
Stock of Holding as of the Issue Date.
Notwithstanding the foregoing, "Permitted Holder"
shall not include any Person who, together with its
Affiliates, "beneficially owns" more than 50% of the
Voting Stock of the Company or Holding as of any
date after the Issue Date, excluding from the
calculation of such Person's "beneficial ownership"
any Voting Stock that such Person and its Affiliates
would be deemed to "beneficially own" solely by
reason of its (or their) membership in a "group."
"Permitted Indebtedness" means any of the following
Indebtedness of the Company or any Subsidiary, as
the case may be:
(i) Indebtedness of the Company under the Credit
Agreement in an aggregate principal amount at
any time outstanding not to exceed the greater
of (x) $37,500,000, less (1) the amount of any
scheduled principal payments actually made
(excluding, without limitation, any prepayments
required to be made based upon the Company's
excess cash flow) or the amount of any other
prepayments which are applied or credited
against scheduled principal payments on the
date such scheduled principal payments would
otherwise have been made (except to the extent
refinanced under a replacement Credit Agreement
at the time of the respective repayment) by the
Company or any Guarantor in respect of any term
loans under the Credit Agreement and (2) the
amount by which the aggregate commitment under
any revolving credit facility under the Credit
Agreement at any time has been permanently
reduced to the extent, if any, that any
repayments required to be made in connection
with effecting such permanent reduction have
been made (it being understood that to the
extent a reduction in commitments under any
revolving credit facility under the Credit
Agreement arises solely in connection with a
refinancing of outstanding amounts under such
revolving credit facility with borrowings under
a replacement Credit Agreement and the
commitments under the Credit Agreement are
thereby replaced with commitments under such
replacement Credit Agreement such a permanent
reduction shall not have occurred); and (y) the
amount equal to the sum of (1) 75% of the net
book value of accounts receivable not more than
90 days old, as determined in accordance with
GAAP, (2) 50% of the net book value of
inventory (determined on a first-in-first-out
basis) of the Company and its Subsidiaries on a
consolidated basis at the time such
Indebtedness is Incurred, as determined in
accordance with GAAP and (3) $10 million;
(ii) Indebtedness of the Company under the
Securities;
(iii) Indebtedness of the Company or any of its
Subsidiaries consisting of Capital Lease
Obligations and Purchase Money Obligations so
long as the aggregate amount of such
Indebtedness Incurred during any fiscal year
does not exceed $10 million;
(iv) Indebtedness of a Subsidiary to the Company or
to a Wholly Owned Subsidiary;
(v) Indebtedness of the Company to a Wholly Owned
Subsidiary of the Company which is unsecured
and, unless owing to a Guarantor, subordinated
in right of payment to the payment and
performance of the Company_s obligations under
the Indenture and the Notes; provided, however,
that any subsequent issuance or transfer of
Capital Stock that results in such Wholly Owned
Subsidiary ceasing to be such, or any
subsequent transfer of such Indebtedness (other
than to the Company or a Wholly Owned
Subsidiary) will be deemed, in each case, to
constitute the Incurrence of such Indebtedness
by the Company or of such Indebtedness by such
Wholly Owned Subsidiary;
(vi) Indebtedness which represents the assumption by
the Company of Indebtedness of any Wholly Owned
Subsidiary;
(vii) Indebtedness under Currency Agreements,
Interest Swap Obligations and other agreements
between the Company or a Subsidiary and one or
more financial institutions providing for
"swap," "cap," "collar" or other interest rate
protection on other Permitted Indebtedness;
(viii) Indebtedness not to exceed an aggregate
principal amount of $5 million at any one time
outstanding in addition to the Indebtedness
otherwise permitted hereby, which may be
Incurred under the Credit Agreement;
(ix) Indebtedness Incurred in respect of performance
bonds and surety bonds;
(x) Indebtedness represented by letters of
credit issued in the ordinary course of
business for the account of the Company or any
Subsidiary not exceeding an aggregate amount of
$2.5 million at any one time outstanding (in
addition to any letters of credit issued under
the Credit Agreement);
(xi) Indebtedness represented by the
obligations of the Company, as they may exist
from time to time, to repurchase from any
employee or director, or former employee or
director, of the Company or a Subsidiary,
Capital Stock of the Company, or options,
warrants or rights therefor, issued pursuant to
any compensatory plan of the Company;
(xii) Indebtedness consisting of guarantees,
indemnities or obligations in respect of
purchase price adjustments in connection with
the acquisition or disposition of assets
permitted under the Indenture;
(xiii) Guarantees in respect of Indebtedness
Incurred by officers or employees of the
Company or any Subsidiary in the ordinary
course of business and payments in discharge
thereof in an amount not to exceed the excess
of (x) $500,000 at any time outstanding over
(y) the aggregate amount, if any, paid after
the Issue Date in respect of such guarantees;
and
(xiv) Permitted Refinancing Indebtedness the
proceeds of which are used to refinance
outstanding Permitted Indebtedness of the
Company or any Subsidiary.
Any calculation of the amount of outstanding
Indebtedness under any of the foregoing clauses,
shall take into account: (A) the principal amount
then outstanding that was originally Incurred
pursuant to such clause; (B) any outstanding
Indebtedness Incurred pursuant to clause (xiv) to
refinance or refund Indebtedness originally Incurred
pursuant to such clause; and c any subsequent
refinancings or refundings thereof.
"Permitted Investment" means any of the following:
(i) Investments in Subsidiaries outstanding as of
the date hereof and additional Investments in
such Subsidiaries or other Persons so long as,
immediately after such Investment, such
Subsidiary or other Person will be a Wholly
Owned Subsidiary (including, without
limitation, Investments in the Capital Stock of
such Subsidiary or other Person but excluding
Investments in any other Person that would
constitute the acquisition of a business, which
is subject to clause (xiv) below);
(ii) Investments by Wholly Owned Subsidiaries in the
Company;
(iii) (a) Investments in commercial paper rated P-1
by Moody's Investors Service, Inc. or A-1 by
Standard & Poor's Corporation on the date of
acquisition, (b) certificates of deposit of
United States commercial banks (having a
combined capital and surplus in excess of
$100,000,000), c obligations of, or guaranteed
by, the United States government or any agency
thereof, (d) money market funds organized under
the laws of the United States or any state
thereof that invest substantially all their
assets in any of the types of investments
described in subclause (a), (b) or c of this
clause (iii), or (e) to the extent not
comprehended by subclauses (a) through (d) of
this clause (iii), Cash Equivalents;
(iv) Investments in, or consisting of, negotiable
instruments held for collection; outstanding
travel, entertainment, moving and other like
loans and advances to officers, employees and
consultants; lease, utility and other similar
deposits; or stock, obligations or securities
received in settlement of claims owing to the
Company or a Subsidiary as a result of a
composition or readjustment of debt or a
reorganization of any debtor, in each of the
foregoing cases in the ordinary course of
business of the Company or a Subsidiary, as the
case may be;
(v) Investments consisting of accounts receivable
owing to the Company or any Subsidiary created
in the ordinary course of business;
(vi) Investments in (a) AWG Membership Stock and (b)
AWG members deposit certificates, patronage
refund certificates or similar types of AWG
Equity received or earned by the Company from
time to time based on the Company_s gross
purchases from AWG pursuant to the AWG Supply
Agreement or in lieu of receiving cash rebates
or refunds from AWG;
(vii) Investments in (a) the capital stock of other
retail purchasing cooperatives in connection
with becoming a member of such cooperatives and
(b) additional capital stock of such
cooperatives which is received or earned by the
Company based on the Company's gross purchases
from such cooperatives or in lieu of receiving
cash rebates or refunds from such cooperatives,
provided that in each case, such stock is
purchased, received or earned in connection
with a supply agreement or arrangement between
the Company and such cooperative which is on
terms at least as favorable to the Company as
the terms that could be obtained by the Company
in a comparable transaction made on an arm's
length basis with another cooperative,
wholesaler or supplier;
(viii) Investments consisting of non-cash
consideration from any Asset Sale made pursuant
to and in compliance with Section 10.16;
(ix) Investments consisting of loans, advances,
dividends or distributions by the Company to
Holding not to exceed an amount necessary to
permit Holding to pay (a) its costs (including
all professional fees and expenses) Incurred to
comply with its reporting requirements under
Section 10.4 and (b) its other operational
expenses (other than taxes) incurred in the
ordinary course of business and not exceeding
$250,000 in the aggregate any fiscal year;
(x) Investments consisting of Indebtedness
permitted under item (vii) of the definition of
Permitted Indebtedness;
(xi) Investments in any of the Notes;
(xii) Investments consisting of guarantees in
respect of Indebtedness Incurred by officers or
employees in the ordinary course of business
and payments in discharge thereof in an amount
not to exceed the excess of (x) $500,000 at any
time outstanding over (y) the aggregate amount,
if any, paid after the Issue Date in respect of
such guarantees;
(xiii) Investments consisting of loans or
advances to officers, directors or employees
incurred prior to the Issue Date and any
extensions, renewals, refundings or
refinancings thereof, provided that the
aggregate amount of such loans and advances
shall not exceed $150,000 at any time
outstanding;
(xiv) Investments in any group of assets
constituting a business in an amount not to
exceed $5 million in the aggregate in any
fiscal year;
(xv) Investment in joint ventures formed for
the purpose of purchasing and operating grocery
stores, in the aggregate amount of $3 million
at any time outstanding; and
(xvi) Investments in the aggregate amount of $2
million at any time outstanding.
"Permitted Liens" means (i) Liens existing as of the
Issue Date, (ii) Liens securing Indebtedness
outstanding under the Credit Agreement (whether or
not existing on the Issue Date); (iii) Liens now or
hereafter securing any obligations with respect to
Interest Swap Obligations, Currency Agreements and
other agreements between the Company or a Subsidiary
and one or more financial institutions providing for
"swap," "cap," "collar" or other interest rate
protection on other Permitted Indebtedness; (iv)
Liens securing Acquired Indebtedness created prior
to (and not in connection with or in contemplation
of) the Incurrence of such Indebtedness by the
Company or any Subsidiary; (v) Purchase Money Liens
and Liens to secure Capital Lease Obligations
permitted hereunder covering only the property
acquired with such Indebtedness; (vi) Liens securing
Permitted Refinancing Indebtedness; provided that
such Liens extend to or cover only the property or
assets then securing the Indebtedness being
refinanced; (vii) any Liens which may be granted to
secure the Securities or any Guarantees; (viii)
Liens in favor of the Company or any Subsidiary of
the Company; (ix) Liens securing Indebtedness
permitted to be incurred under clause (x) of the
definition of Permitted Indebtedness liens; (x) the
AWG Liens; and (xi) Other Permitted Liens.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its
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 Subsidiaries; provided
that (i) the principal amount of such Indebtedness
does not exceed the principal amount of the
Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection
therewith), (ii) with respect to Indebtedness that
is not Senior Indebtedness (a) such Indebtedness has
an Average Life to Stated Maturity equal to or
greater than and a final maturity no earlier than
the Average Life to Stated Maturity and final
maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded,
and (b) such Indebtedness is subordinated in right
of payment pursuant to terms at least as favorable
to the Holders of Securities as those, if any,
contained in the documentation governing the
Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded and (iii) no such
Indebtedness Incurred by the Company is extended,
refinanced, renewed, replaced, defeased or refunded
with Indebtedness Incurred by a Subsidiary.
"Person" means any individual, corporation, limited
or general partnership, joint venture, limited
liability company, association, joint-stock company,
trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 3.6 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person,
any and all shares, interests, participations or
other equivalents (however designated) of such
Person's preferred or preference stock whether now
outstanding or issued after the date hereof, and
includes, without limitation, all classes and series
of preferred or preference stock.
"Purchase Money Liens" means Liens to secure or
securing Purchase Money Obligations permitted to be
Incurred under this Indenture.
"Purchase Money Obligations" means Indebtedness
representing, or Incurred to finance, the cost (a)
of acquiring any assets and (b) of construction or
improvement of property, in each case for use in the
business of the Company and its Subsidiaries
(including Purchase Money Obligations of any other
Person at the time such other Person is merged with
or is otherwise acquired by the Company or a
Subsidiary); provided that (i) the principal amount
of such Indebtedness does not exceed 100% of such
cost, including construction or improvement costs,
(ii) any Lien securing such Indebtedness does not
extend to or cover any other asset or property other
than the asset or property being so acquired,
constructed or improved and (iii) such Indebtedness
is Incurred, and any Liens with respect thereto are
granted, within 180 days of the acquisition of such
property or asset.
"Redeemable Capital Stock" means Capital Stock that
either by its terms, by the terms of any security
into which it is convertible or exchangeable or
otherwise, is or upon the happening of an event or
passage of time would be required to be redeemed
prior to the Stated Maturity of the principal of the
Securities or is redeemable at the option of the
holder thereof at any time prior to the Stated
Maturity of the principal of the Securities, or is
convertible into or exchangeable for debt securities
at any time prior to such Stated Maturity.
"Redemption Date," when used with respect to any
Securities to be redeemed, means, in whole or in
part, the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price," when used with respect to any
Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date means the January 15 or
July 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the
Trustee, means any officer in its corporate trust
department and any other officer of the Trustee
customarily performing functions similar to those
performed by any of the above designated officers or
assigned by the Trustee to administer corporate
trust matters at its Corporate Trust Office 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 Payments" has the meaning specified in
Section 10.9.
"Securities Act" means the Securities Act of 1933,
as amended from time to time.
"Securities" means the Securities that are issued
under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture.
"Security Register" has the meaning specified in
Section 3.5.
"Senior Indebtedness" means the principal of,
premium, if any, and accrued and unpaid interest on
(including, without limitation, interest at the
contract rate subsequent to the commencement of any
bankruptcy, insolvency or similar proceeding with
respect to the Company and with respect to the
Credit Agreement only, such interest whether or not
a claim therefor is allowed in such proceeding) or
reasonable fees and reasonable expenses payable
under or in respect of Indebtedness of the Company
under the Credit Agreement.
"Special Record Date" means a date fixed by the
Trustee for the payment of any Defaulted Interest
pursuant to Section 3.7.
"Stated Maturity," when used with respect to any
Security or any installment of interest thereon,
means the date specified in such Security as the
fixed date on which the principal of such Security
or such installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, (i)
a corporation a majority of whose Voting Stock is at
the time, directly or indirectly, owned by such
Person, by one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a
corporation) in which such Person, one or more
Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the
date of determination thereof has at least a
majority ownership interest. Unless the context
indicates otherwise, the term "Subsidiary" shall
mean a Subsidiary of the Company or one or more
Subsidiaries of the Company.
"Subsidiary Guarantees" means the Guarantees of the
Subsidiary Guarantors, substantially in the form
attached as Exhibit __ hereto, as such Guarantee may
be amended, modified or supplemented from time to
time.
"Subsidiary Guarantor" means any Subsidiary that
executes a Subsidiary Guarantee and any successor or
assign of such Subsidiary Guarantor.
"Trade Payables" means any accounts payable or any
other indebtedness or monetary obligation to trade
creditors created, assumed or guaranteed by a Person
arising in the ordinary course of business of such
Person in connection with the acquisition of goods
and services.
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, and as in force at the date as
of which this instrument was executed, except as
provided in Section 9.5.
"Trustee" means the Person named as the _Trustee_ in
the first paragraph of this instrument, until a
successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor
Trustee.
"Voting Stock" means, with respect to any Person,
(i) one or more classes of the Capital Stock of such
Person having general voting power to elect at least
a majority of the board of directors, managers or
trustees of such Person (irrespective of whether or
not at the time Capital Stock of any other class or
classes have or might have voting power by reason of
the happening of any contingency) and (ii) any
Capital Stock of such Person convertible or
exchangeable without restriction at the option of
the holder thereof into Capital Stock of such Person
described in clause (i) above.
"Wholly Owned Subsidiary" means, with respect to any
Person, a Subsidiary of such Person all of the
outstanding Capital Stock of which shall at the time
be owned by such Person or by one or more Wholly
Owned Subsidiaries of such Person or by such Person
and one or more Wholly Owned Subsidiaries of such
Person.
Section 1.2 Other Definitions.
Term Defined in
Section
"Act" . . . . . . . . . . . . . . . . . . . . 1.5
"Asset Sale Notice" . . . . . . . . . . . . . 10.16
"Asset Sale Offer". . . . . . . . . . . . . .
"Asset Sale Offer Price". . . . . . . . . . .
"Asset Sale Purchase Date". . . . . . . . . . 10.16
"Asset Sale Purchase Notice". . . . . . . . . 10.16
"Asset Sale Purchase Price" . . . . . . . . . 10.16
"Asset Sale Trigger Date" . . . . . . . . . . 10.16
"Change of Control Notice". . . . . . . . . . 10.15
"Change of Control Offer" . . . . . . . . . . 10.15
"Change of Control Purchase Date" . . . . . . 10.15
"Change of Control Purchase Notice" . . . . . 10.15
"Change of Control Purchase Price". . . . . . 10.15
"defeasance". . . . . . . . . . . . . . . . . 13.1
"Default Notice". . . . . . . . . . . . . . . 5.1
"Defaulted Interest". . . . . . . . . . . . . 3.7
"incorporated provision". . . . . . . . . . . 1.8
"Payment Blockage Period" . . . . . . . . . . 12.3
"Payment Default" . . . . . . . . . . . . . . 12.3
"Security Registrar". . . . . . . . . . . . . 3.5
"U.S. Government Obligations" . . . . . . . . 13.2
Section 1.3 Compliance Certificates and Opinions.
Upon any application or request by the Company
and/or the Guarantor to the Trustee to take any
action or omit to take any action under this
Indenture, the Company and/or the Guarantor, as
applicable, shall furnish to the Trustee an
Officers' Certificate, in form and substance
reasonably satisfactory to the Trustee, stating
that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture
(including any covenant compliance with which
constitutes a condition precedent, if any) relating
to the proposed action or inaction have been
complied with, and an Opinion of Counsel, in form
and substance reasonably satisfactory to the
Trustee, stating that, in the opinion of such
counsel, all such conditions precedent and
covenants, compliance with which constitutes a
condition precedent, if any, have been complied
with, except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this Indenture relating to such
particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for
in this Indenture shall include:
(a) a statement that each individual signing
such certificate or opinion has read such
covenant or condition and the definitions
herein relating thereto;
(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;
(d) a statement that, in the opinion of each
such individual, such individual has made such
examination or investigation as is necessary to
enable him or her to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(e) a statement as to whether, in the opinion
of each such individual, such condition or
covenant has been complied with; provided,
however, that with respect to matters of fact,
an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public
officials.
Section 1.4 Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion
of, only one such Person, or that they be so
certified or covered by only one document, but one
such Person may certify or give an opinion with
respect to some matters and one or more other such
Persons as to other matters, any such Person may
certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or
representations with respect to the matters upon
which his or her certificate or opinion is based are
erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of,
or representations of an officer or officers of the
Company stating that the information with respect to
such factual matters is in the possession of the
Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the
certificate or opinion or representations with
respect to such matters are erroneous.
Section 1.5 Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other
action provided by this Indenture to be given
or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such
Holders in person or by agent duly appointed in
writing; and, except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments
are delivered to the Trustee and, where it is
hereby expressly required, to the Company
and/or the Guarantor. Such instrument or
instruments (and the action embodied therein
and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of
execution of any such instrument or of a
writing appointing any such agent shall be
sufficient for any purpose of this Indenture
and (subject to Trust Indenture Act Section
315) conclusive in favor of the Trustee, the
Company and/or the Guarantor, as applicable, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be
proved by the Security Register.
(d) If the Company shall solicit from the
Holders any request, demand, authorization,
direction, notice, consent, waiver or other
Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance
a record date for the determination of such
Holders entitled to give such request, demand,
authorization, direction, notice, consent,
waiver or other Act, but the Company shall have
no obligation to do so. Notwithstanding Trust
Indenture Act Section 316c, any such record
date shall be the record date specified in or
pursuant to such Board Resolution, which shall
be a date not more than 30 days prior to the
first solicitation of Holders generally in
connection therewith and no later than the date
such solicitation is completed.
If such a record date is fixed, such request,
demand, authorization, direction, notice,
consent, waiver or other Act may be given
before or after such record date, but only the
Holders of record at the close of business on
such record date shall be deemed to be Holders
for the purposes of determining whether Holders
of the requisite proportion of Securities then
Outstanding have authorized or agreed or
consented to such request, demand,
authorization, direction, notice, consent,
waiver or other Act, and for this purpose the
Securities then outstanding shall be computed
as of such record date; provided that no such
request, demand, authorization, direction,
notice, consent, waiver or other Act by the
Holders on such record date shall be deemed
effective unless it shall become effective
pursuant to the provisions of this Indenture
not later than 90 days after the record date.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other Act
by the Holder of any Security shall bind every
future Holder of the same Security or the
Holder of every Security issued upon the
registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done
by the Trustee, any Paying Agent, the Company
and/or the Guarantor in reliance thereon,
whether or not notation of such action is made
upon such Security.
Section 1.6 Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with
(a) the Trustee by any Holder, the Company
and/or the Guarantor shall be sufficient for
every purpose hereunder if made, given,
furnished or delivered, in writing, to or with
the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration
Department; or
(b) the Company and/or the Guarantor by the
Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise
herein expressly provided) if made, given,
furnished or delivered in writing to the
Company addressed to it at Homeland Stores,
Inc., 2601 Northwest Expressway Oil Center
East, 11th Floor, Oklahoma City, Oklahoma
73112, Attention: Chief Financial Officer, or
at any other address furnished in writing to
the Trustee by the Company.
Section 1.7 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage
prepaid, to each Holder affected by such event at
its address as it appears in the Security Register
not later than the latest date and not earlier than
the earliest date prescribed for the giving of such
notice. In any case where notice to Holders is
given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Any
notice when deposited for mailing to a Holder in the
aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not
actually received by such Holder. Where this
Indenture provides for notice in any manner, such
notice may be waived in writing by the Person
entitled to receive such notice, either before or
after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the
validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause, it shall be
impracticable to mail notice of any event as
required by any provision of this Indenture, then
any method of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.8 Conflict of any Provision of ndenture with Trust
Indenture Act.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the
duties imposed by Sections 3.10 to 3.18, inclusive,
of the Trust Indenture Act, or conflicts with any
provision (an "incorporated provision") required by
or deemed to be included in this Indenture by
operation of such Trust Indenture Act Sections, such
imposed duties or incorporated provision shall
control. If any provision of this Indenture
modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the
case may be.
Section 1.9 Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall
not affect the construction hereof.
Section 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by
the Company and/or the Guarantor shall bind its
respective successors and permitted assigns, whether
so expressed or not. All covenants and agreements
in this Indenture by the Trustee shall bind its
successors and permitted assigns.
Section 1.11 Separability Clause.
In case any provision in this Indenture, the
Securities or any Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section l.12 Benefits of Indenture.
Nothing in this Indenture, the Securities or any
Guarantee, express or implied, shall give to any
Person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders
and the holders of Senior Indebtedness) any benefit
or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.13 Governing Law.
THIS INDENTURE, THE SECURITIES AND EACH GUARANTEE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 1.14 Legal Holidays.
In any case where any Interest Payment Date, any
date established for payment of Defaulted Interest
pursuant to Section 3.7, or any Maturity with
respect to any Security shall not be a Business Day,
then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest
or principal (and premium, if any) need not be made
on such date, but may be made on the next succeeding
Business Day with the same force and effect as if
made on the Interest Payment Date or date
established for payment of Defaulted Interest
pursuant to Section 3.7 or Maturity, and no interest
shall accrue with respect to such payment for the
period from and after such Interest Payment Date or
date established for payment of Defaulted Interest
pursuant to Section 3.7 or Maturity, as the case may
be, to the next succeeding Business Day.
Section 1.15 No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company or any other obligor on the
Securities shall not have any liability for any
obligations of the Company or such obligor, as the
case may be, under the Securities, this Indenture or
any Guarantee or for any claim based on, or in
respect of, or by reason of such obligations. Each
Holder by accepting any of the Securities waives and
releases all such liability.
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.
The Securities and the Trustee's certificate of
authentication shall be in substantially the forms
set forth in this Article, with such appropriate
insertions, omissions, substitutions and other
variations as are required or permitted by this
Indenture and may have such letters, numbers or
other marks of identification and such legends or
endorsements placed thereon as may be required to
comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by
their execution of the Securities. Any portion of
the text of any Security may be set forth on the
reverse thereof, with an appropriate reference
thereto on the face of the Security.
The definitive Securities shall be printed or
produced by any combination of these methods or may
be produced in any other manner permitted by the
rules of any securities exchange on which the
Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by
their execution of such Securities.
Section 2.2 Form of Face of Security.
HOMELAND STORES, INC.
10% Senior Subordinated Note due 2003
No. _____ $________
HOMELAND STORES, INC., a Delaware corporation
(herein called the _Company,_ which term includes
any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to _______________ or registered assigns, the
principal sum of __________ Dollars on August 1,
2003, at the office or agency of the Company
referred to below, and to pay interest thereon on
February 1, 1997 and semiannually thereafter, on
February 1 and August 1 in each year, from ______
__, 199_ or from the most recent Interest Payment
Date to which interest has been paid or duly
provided for, at the rate of 10% per annum until the
principal hereof is paid or duly provided for. The
interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business
on the Regular Record Date for such interest, which
shall be the January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding
such Interest Payment Date. Interest shall be
calculated on the basis of a 360-day year of twelve
30-day months. Any such interest not so actually
paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name
this Security (or one or more Predecessor
Securities) is registered at the close of business
on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of
Securities not less than 10 days prior to such
Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities may be listed, and upon such notice as
may be required by such exchange, all as more fully
provided in said Indenture. Payment of the
principal of (and premium, if any) and interest on
this Security will be made at the office or agency
of the Company maintained for that purpose in The
City of New York, or at such other office or agency
of the Company as may be maintained for such
purpose, 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;
provided, however, that, at the option of the
Company payment of interest may be made by check
mailed to the address of the Person entitled thereto
as such address shall appear on the Security
Register or by wire transfer to an account
maintained by the payee located in the United
States.
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof,
which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has
been duly executed by the Trustee referred to on the
reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate
seal.
Dated: HOMELAND STORES, INC.
By _______________________
Attest:
_____________________
Authorized Signatory
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company designated as its 10%
Senior Subordinated Notes due 2003 (herein called
the "Securities"), limited (except as otherwise
provided in the Indenture referred to below) in
aggregate principal amount to $60,000,000, which may
be issued under an indenture (herein called the
"Indenture") dated as of ______ ___, 1996, by and
among the Company, Homeland Holding Corporation, as
Guarantor, and Fleet National Bank, as trustee
(herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the
respective rights, limitations of rights, duties,
obligations and immunities thereunder of the
Company, the Guarantor, the Trustee and the Holders
of the Securities, and of the terms upon which the
Securities are and are to be, authenticated and
delivered.
The Securities are subject to redemption upon not
less than 30 nor more than 60 days' notice, in
amounts of $1,000 or an integral multiple of $1,000,
at any time on or after ______ __, 1999,as a whole
or in part, at the election of the Company, at the
Redemption Price equal to the percentage of the
principal amount redeemed, as set forth in the table
below, together in the case of any such redemption
with accrued interest to the Redemption Date
(subject to the right of Holders of record on
relevant Regular Record Dates to receive interest
due on an Interest Payment Date), all as provided in
the Indenture.
If Redeemed On Redemption Price
or after: Shall Be:
August 1, 1999 105.00%
August 1, 2000 103.33%
August 1, 2001 101.67%
August 1, 2002 100.00%
In addition, upon the occurrence of a Change of
Control prior to August 1, 1999, the Securities are
subject to redemption upon not less than 30 nor more
than 60 days' notice, in amounts of $1,000 or an
integral multiple of $1,000, at any time on or after
______ __, 1999, as a whole or in part, at the
election of the Company, at the Redemption Price
equal to the percentage of the principal amount
redeemed, as set forth in the table below, together
in the case of any such redemption with accrued
interest to the Redemption Date (subject to the
right of Holders of record on relevant Regular
Record Dates to receive interest due on an Interest
Payment Date), all as provided in the Indenture.
If Redeemed On Redemption Price
or after: Shall Be:
August 1, 1996 108.00%
August 1, 1997 107.00%
August 1, 1998 106.00%
Notwithstanding the foregoing, if the aggregate
principal amount of Outstanding Securities after a
redemption would be less than $20 million, then the
Company shall redeem all Outstanding Securities.
The Securities are not entitled to the benefit of any sinking fund.
In the case of any redemption of Securities,
interest installments whose Stated Maturity is on or
prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more
Predecessor Securities, of record at the close of
business on the relevant Regular Record Date
referred to on the face hereof. Securities (or
portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture
shall cease to bear interest from and after the
Redemption Date.
In the event of redemption of this Security in part
only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation
hereof.
Sections 10.15 and 10.16 of the Indenture provide
that upon the occurrence of a Change of Control and
following any Asset Sale, and subject to further
limitations contained therein, the Company shall
make an offer to purchase certain amounts of
Securities at the purchase price, and in accordance
with the procedures, set forth in the Indenture.
If an Event of Default shall occur and be
continuing, the principal of all the Securities may
be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions for defeasance at
any time of (a) the entire indebtedness of the
Company on this Security and (b) certain restrictive
covenants and related Defaults and Events of
Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply
to this Security.
The Securities enjoy the benefits of the Guarantee
contained in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains
provisions permitting the Holders of specified
percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance
by the Company with certain provisions of the
Indenture and certain past defaults under the
Indenture and their consequences. Any such consent
or waiver by or on behalf of the Holder of this
Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security
and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or
waiver is made upon this Security.
The Securities and the Guarantee are subordinated in
right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in
full of all Senior Indebtedness of the Company
whether outstanding on the date of the Indenture or
thereafter created, Incurred, assumed or guaranteed.
Each Holder by his acceptance hereof agrees to be
bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate
to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-
fact for such purpose.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal
of (and premium, if any) and interest on this
Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Security is registrable on the Security Register of
the Company, upon surrender of this Security for
registration of transfer at the office or agency of
the Company maintained for such purpose in The City
of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities are issuable only in registered form,
without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein
set forth, the Securities are exchangeable for a
like aggregate principal amount of Securities of a
different authorized denomination, as requested by
the Holder surrendering the same.
No service charge shall be made for any registration
of transfer or exchange or redemption of Securities,
but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental
charges payable in connection with registration of
transfer or exchange.
Prior to the time of due presentment of this
Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue,
and neither the Company, the Guarantor, the Trustee
nor any agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to
them in the Indenture.
Section 2.4. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
FLEET NATIONAL BANK
as Trustee
By_______________________
Authorized Signatory
Section 2.5 Form of Parent Guarantee.
GUARANTEE
The undersigned hereby unconditionally guarantees to
the holder of the within Security the due and
punctual payment of the principal of, interest, and
interest on overdue principal and interest, if any,
if lawful, on such Security and all other
Obligations payable by the Company under the
Indenture and such Security, as more fully set forth
in the Indenture.
HOMELAND HOLDING CORPORATION
By_______________________
Attest:
___________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.
The aggregate principal amount of Securities
outstanding at any time and which may be
authenticated and delivered under this Indenture is
limited to $60,000,000, except for Securities
authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.3, 3.4, 3.5,
3.6, 9.6, 10.15 or 11.8.
The Securities shall be known and designated as the
"10% Senior Subordinated Notes due 2003" of the
Company. Their Stated Maturity shall be August 1,
2003, and they shall bear interest at the rate of
10% per annum from the date of issuance, or the most
recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be,
payable on February 1, 1997 and semiannually
thereafter on February 1 and August 1 in each year
and at said Stated Maturity, until the principal
thereof is paid or duly provided for.
The principal of (and premium, if any) and interest
on the Securities shall be payable at the office or
agency of the Company maintained for such purpose in
The City of New York, or at such other office or
agency of the Company as may be maintained for such
purpose; provided, however, that, at the option of
the Company, interest may be paid by check mailed to
addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register or
by wire transfer to an account maintained by the
payee in the United States.
The Securities shall be redeemable as provided in Article XI.
The Securities shall be subordinated in right of
payment to Senior Indebtedness as provided in
Article XII.
The Securities shall not be entitled to the benefits of any
sinking fund.
Section 3.2 Denominations.
The Securities shall be issuable only in registered
form without coupons and only in denominations of
$1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by any two of the following: its Chairman
of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced
thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
the placement of their signatures on the Securities
the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior
to the authentication and delivery of such
Securities or did not hold such offices at the date
of such Securities.
The Trustee shall (upon Company Order) authenticate
and deliver Securities for original issue in an
aggregate principal amount of up to $60,000,000.
At any time and from time to time after the
execution and delivery of this Indenture, the
Company may deliver Securities executed by the
Company to the Trustee for authentication, together
with a Company Order for the authentication and
delivery of such Securities, and the Trustee in
accordance with such Company Order shall
authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the
form provided for herein duly executed by the
Trustee by manual signature of one of its duly
authorized signatories, and such certificate upon
any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly
authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company, pursuant to Article VIII, shall
be consolidated or merged with or into any other
Person or shall convey, transfer, lease or otherwise
dispose of substantially all of its properties and
assets to any Person, and the successor Person
resulting from such consolidation, or surviving such
merger, or into which the Company shall have been
merged, or the successor Person which shall have
received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee
pursuant to Article VIII, any of the Securities
authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease
or other disposition may, from time to time, at the
request of the successor Person, be exchanged for
other Securities executed in the name of the
successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in
substance of like tenor as the Securities
surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the
successor Person, shall authenticate and deliver
Securities as specified in such request for the
purpose of such exchange. If Securities shall at
any time be authenticated and delivered in any new
name of a successor Person pursuant to this section
in exchange or substitution for or upon registration
of transfer of any Securities, such successor
Person, at the option of any Holder but without
expense to such Holder, shall provide for the
exchange of all Securities at the time outstanding
held by such Holder for Securities authenticated and
delivered in such new name.
Holding shall execute the Parent Guarantee in the
manner set forth in Section 14.2. Any Subsidiary
which is required to become a Subsidiary Guarantor
pursuant to Section 10.18, shall execute a
Subsidiary Guarantee and a supplemental indenture in
the manner set forth in Section 14.2.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities,
the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary
Securities which are printed or otherwise produced,
in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which
they are issued and with such appropriate
insertions, omissions, substitutions and other
variations as the officers executing such Securities
may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without
unreasonable delay. After the preparation of
definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office
or agency of the Company designated for such purpose
pursuant to Section 10.2, without charge to the
Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount
of definitive Securities of authorized
denominations. Until so exchanged, the temporary
Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive
Securities.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register
maintained in such office and in any other office or
agency designated pursuant to Section 10.2 being
herein sometimes referred to as the "Security
Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall
provide for the registration of Securities and of
transfers of Securities. Said office or agency is
hereby initially appointed "Security Registrar" for
the purpose of registering Securities and transfers
of Securities as herein provided.
Upon surrender for registration of transfer of any
Security at the office or agency of the Company
designated pursuant to Section 10.2 for such
purpose, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more
new Securities of any authorized denomination or
denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be
exchanged for other Securities of any authorized
denomination or denominations of a like aggregate
principal amount upon surrender of the Securities to
be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer, or for exchange or
redemption, shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the
Security Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange or redemption of Securities,
but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental
charges that may be imposed in connection with any
registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.3, 3.4,
3.6, 9.6, 10.15, 10.16 or 11.8 not involving any
transfer.
The Company shall not be required (a) to issue,
register the transfer of or exchange any Security
during a period beginning at the opening of business
(i) 15 days before the mailing of a notice of
redemption of the Securities selected for redemption
under Section 11.4 and ending at the close of
business on the day of such mailing or (ii) 15 days
before an Interest Payment Date and ending on the
close of business on the Interest Payment Date, or
(b) to register the transfer of or exchange any
Security so selected for redemption in whole or in
part, except the unredeemed portion of Securities
being redeemed in part.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction,
loss or theft of any Security, and there is
delivered to the Company and the Trustee such
security or indemnity as may be required by them to
save each of them and any agent of them harmless,
then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and
upon Company Order the Trustee shall authenticate
and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or
stolen Security, a replacement Security of like
tenor and principal amount, and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due
and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay all
amounts then due and payable on such Security.
Upon the issuance of any replacement Securities
under this Section, the Company may require the
payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other
governmental charges that may be imposed in relation
thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this
section in lieu of any destroyed, lost or stolen
Security shall constitute a contractual obligation
of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of
this Indenture (including any Guarantee) equally and
proportionately, with any and all other Securities
duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen
Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business
on the Regular Record Date for such interest at the
office or agency of the Company maintained for such
purpose pursuant to Section 10.2; provided, however,
that each installment of interest may at the
Company_s option be paid by (i) mailing a check for
such interest, payable to or upon the written order
of the person entitled thereto pursuant to Section
3.8, to the address of such person as it appears in
the Security Register or (ii) wire transfer to an
account maintained by the payee located in the
United States.
Any Interest on any Security which is payable, but
is not punctually paid or duly provided for, on any
Interest Payment Date (such defaulted interest
herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by
the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Securities (or their respective
Predecessor Securities) are registered at the
close of business on a Special Record Date for
the payment of the Defaulted Interest, which
shall be fixed in the following manner. The
Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be
paid on each security and the date of the
proposed payment, and at the same time the
Company shall deposit with the Trustee an
amount of money equal to the aggregate amount
proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such
money when deposited to be held in trust for
the benefit of the Persons entitled to such
Defaulted Interest as in this Subsection
provided. Thereupon, the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the
date of the proposed payment and not less than
10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such
Special Record Date. In the name and at the
expense of the Company, the Trustee shall cause
notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage
prepaid, to each Holder at its address as it
appears in the Security Register, not less than
10 days prior to such Special Record Date.
Notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose
names the Securities (or their respective
Predecessor Securities) are registered at the
close of business on such Special Record Date
and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any
securities exchange on which the Securities may
be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable
by the Trustee (acting reasonably).
Subject to the foregoing provisions of this
Section, each Security delivered under this
Indenture upon registration of transfer of or
in exchange for or in lieu of any other
Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 3.8 Persons Deemed Owners.
Prior to the time of due presentment for
registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in
whose name any Security is registered as the owner
of such Security for the purpose of receiving
payment of principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security
and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the
Company, the Guarantor the Trustee nor any agent of
the Company, or the Trustee shall be affected by
notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly
canceled by it. The Company shall deliver to the
Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section.
All canceled Securities held by the Trustee shall be
destroyed and certification of their destruction
delivered to the Company unless by a Company Order
the Company shall direct that canceled Securities be
returned to it.
Section 3.10 Computation of Interest.
Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing
the Securities may use "CUSIP" numbers (if then
generally in use), and if so, the Trustee shall use
CUSIP numbers in notices of redemption or exchange
as a convenience to the Holders of the Securities;
provided that any such notice shall state that no
representation is made as to the correctness or
accuracy of such numbers either as printed on the
Securities or as contained in any notice of
redemption or exchange and that reliance may be
placed only on the other identification numbers
printed on the Securities. The Company will
promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to
be of further effect (except as to surviving rights
of registration of transfer or exchange of
Securities herein expressly provided for) and the
Trustee, on demand of and at the expense of the
Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when
(a) either (i) all Securities theretofore
authenticated and delivered (other than (x)
Securities which have been destroyed, lost or
stolen and which have been replaced or paid as
provided in Section 3.6 and (y) Securities for
whose payment money has theretofore been
deposited in trust or segregated and held in
trust by the Company and thereafter repaid to
the Company or discharged from such trust, as
provided in Section 10.3) have been delivered
to the Trustee for cancellation; or (ii) all
such Securities not theretofore delivered
(except lost, stolen or destroyed Securities
which have been replaced or repaid) to the
Trustee for cancellation (1) have become due
and payable, or (2) will become due and payable
at their Stated Maturity within one year, or
(3) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense,
of the Company and the Company, in the case of
(1), (2) or (3) above, has irrevocably
deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the
entire indebtedness on such Securities (except
lost, stolen or destroyed Securities which have
been replaced or repaid) not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to
the date of such deposit (in the case of
Securities which have become due and payable)
or to the Stated Maturity or Redemption Date,
as the case may be;
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the
Company;
(c) 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 the
satisfaction and discharge of this Indenture
have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee
under Section 6.6 shall survive.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment,
either directly or through any Paying Agent
(including the Company acting as its own Paying
Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has
been deposited with the Trustee; but such money need
not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
Section 5.1 Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of
interest on any Security when the same becomes
due and payable and such default continues for
a period of 30 days, whether or not such
payment shall be prohibited by the provisions
of Article XII; or
(b) the Company defaults in the payment of the
principal of (or premium, if any, on) any
Security at its Maturity, whether or not such
payment shall be prohibited by the provisions
of Article XII; or
(c) the Company defaults in the performance
of, or breaches, any covenant or warranty of
the Company hereunder (other than a default
specified in Section 5.1(a), (b) or (h)), and
continuance of such default or breach for a
period of 30 days after a written notice
specifying such default or breach and stating
that such notice is a "Notice of Default"
hereunder has been given, by registered or
certified mail, to (x) the Company by the
Trustee or (y) to the Company and the Trustee
by the Holders of at least 25% in principal
amount of the Outstanding Securities; or
(d) an event of default as defined in any
mortgage, bond, indenture, loan agreement or
other evidence of Indebtedness under which the
Company or any Subsidiary then has outstanding
Indebtedness in excess of $5 million in the
aggregate, shall occur and such default (i) is
caused by a failure to pay principal of or
premium, if any, or interest on such
Indebtedness within the applicable grace
period, if any, of such Indebtedness or (ii)
results in such Indebtedness becoming or being
declared due and payable prior to the date on
which it would otherwise become due and payable
(if not already matured at its final maturity
in accordance with its terms); or
(e) final judgments or orders are rendered
against the Company, the Guarantor or any
Subsidiary which require the payment in money,
either individually or in an aggregate amount,
that is more than $5 million and such judgment
or order shall not have been discharged or
fully bonded, and there shall have been a
period of 60 days after the date on which any
period for appeal has expired and during which
a stay of enforcement of such judgment, order
or decree shall not be in effect; or
(f) a decree or order is entered by a court
having jurisdiction in the premises (i) for
relief in respect of the Company, the Guarantor
or any Subsidiary in an involuntary case or
proceeding under the Federal Bankruptcy Code or
any other federal or state bankruptcy,
insolvency, reorganization or similar law or
(ii) adjudging the Company, the Guarantor or
any Subsidiary a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company,
the Guarantor or any Subsidiary under the
Federal Bankruptcy Code or any other applicable
federal or state law, or appointing a
custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar
official) of the Company, the Guarantor or any
Subsidiary or of any substantial part of any of
their properties, or ordering the winding up or
liquidation of any of their affairs, and any
such decree or order remains unstayed and in
effect for a period of 60 consecutive days; or
(g) the Company, the Guarantor or any
Subsidiary (i) institutes a voluntary case or
proceeding under the Federal Bankruptcy Code or
any other applicable federal or state law or
any other case or proceedings to be adjudicated
a bankrupt or insolvent, (ii) consents to the
entry of a decree or order for relief in
respect of the Company, the Guarantor or any
Subsidiary in any involuntary case or
proceeding under the Federal Bankruptcy Code or
any other applicable federal or state law or to
the institution of bankruptcy or insolvency
proceedings against the Company, the Guarantor
or any Subsidiary, (iii) files a petition or
answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any
other applicable federal or state law, (iv)
consents to the filing of any such petition or
to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar
official) of any of the Company, the Guarantor
or any Subsidiary or of any substantial part of
its property, (v) makes an assignment for the
benefit of creditors, or (vi) admits in writing
its inability to pay its debts generally as
they become due or takes corporate action in
furtherance of any such action; or
(h) there is a default in the performance or
breach of any of the provisions of Article
VIII.
Section 5.2 Acceleration of Maturity; Rescission.
If an Event of Default (other than an Event of
Default specified in Section 5.1(f) or 5.1(g))
occurs and is continuing, the Trustee or the Holders
of at least 25% of the principal amount of the
Securities then Outstanding, by written notice to
the Company (and to the Trustee if such notice is
given by the Holders), may, and the Trustee at the
request of such Holders shall, declare all unpaid
principal of, premium, if any, and accrued interest
on all the Securities to be due and payable
immediately, and upon any such declaration such
principal, premium and accrued interest shall become
immediately due and payable. If an Event of Default
specified in Section 5.1(f) or 5.1(g) occurs and is
continuing, then the principal of, premium, if any,
on and accrued and unpaid interest, if any, on all
of the Outstanding Securities and all other amounts
owing hereunder shall ipso facto become and be
immediately due and payable without any declaration
or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration has
been made, but before a judgment or decree for
payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate
principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may
rescind and annul such declaration and its
consequences if (a) the Company has paid or
deposited with the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on
all Securities, (iii) all unpaid principal of and
premium, if any, on any Outstanding Securities which
have become due otherwise than by such declaration
of acceleration and interest thereon at the Default
Rate, and (iv) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate provided in the Securities; (b) all
Events of Default, other than the non-payment of
principal of the Securities which have become due
solely by the declaration of acceleration, have been
cured or waived; and c the rescission would not
conflict with any judgment or decree of a court of
competent jurisdiction.
Notwithstanding the preceding paragraph, in the
event of a declaration of acceleration in respect of
the Securities because of an Event of Default
specified in Section 5.1(d) shall have occurred and
be continuing, such declaration of acceleration
shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has
been discharged or the holders thereof have
rescinded their declaration of acceleration in
respect of such Indebtedness, and written notice of
such discharge or rescission, as the case may be,
shall have been given to the Trustee by the Company
and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for
such holders, within 30 days after such declaration
of acceleration in respect of the Securities, and no
other Event of Default has occurred during such 30-
day period which has not been cured or waived during
such period.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any
interest on any Security when such interest
becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the
principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to
the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on
such Securities for principal (and premium, if any)
and interest, with interest upon the overdue
principal (and premium, if any) and, to the extent
that payment of such interest shall be legally
enforceable, upon overdue installments of interest,
at the Default Rate; and, in addition thereto, such
further amount as shall be sufficient to cover the
costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same
against the Company or any other obligor upon the
Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law
out of the property of the Company or any other
obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders
under this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual
to protect and enforce such rights.
Section 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of
the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and
payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the
payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal (and premium, if any) and
interest owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in
order to have the claims of the Trustee
(including any claim for the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such
claims and to distribute the same; and any
custodian, receiver, assignee, trustee,
liquidator, sequestrator or similar official in
any such judicial proceeding is hereby
authorized by each Holder to make such payments
to the Trustee and, in the event that the
Trustee shall consent to the making of such
payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee
under Section 6.6.
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
proposal, plan of reorganization, arrangement,
adjustment or composition or other similar
arrangement affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the
Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its
own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which
such judgment has been recovered.
Section 5.6 Application of Money Collected.
Subject to Article XII, any money collected by the
Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and
the notation thereon of the payment, if only
partially paid, and upon surrender thereof, if fully
paid:
FIRST: to the payment of all amounts due the
Trustee under Section 6.6;
SECOND: to the payment of the amounts then due and
unpaid for principal (and premium, if any) and
interest on the Securities, in respect of which or
for the benefit of which such money has been
collected, ratably, without preference or priority
of any kind, according to the amounts due and
payable on such Securities for principal (and
premium, if any) and interest;
THIRD: to the payment of any other Obligations
owing to the Holders; and
FOURTH: the balance, if any, to the Company or any
obligors on the Securities, as their interests may
appear or as a court of competent jurisdiction may
direct.
Section 5.7 Limitation on Suits.
No Holder of any Securities shall have any right to
institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities, or
for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(a) such Holder has previously given written
notice to the Trustee of a continuing Event of
Default;
(b) the Holders of not less than 25% in
principal amount of the Outstanding Securities
shall have made written request to the Trustee
to institute proceedings in respect of such
Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs,
expenses and liabilities to be Incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity
has failed to institute any such proceeding;
and
(e) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities;
it being understood and intended that no one or more
Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek
to obtain priority or preference over any other
Holders or to enforce any right under this Indenture
except in the manner provided in this Indenture and
for the equal and ratable benefit of all the
Holders.
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if
any, on) and (subject to Section 3.7) interest on
such Security on the respective Stated Maturities
expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and
such rights shall not be impaired without the
consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and
in every such case the Company, the Guarantor, the
Trustee and the Holders shall, subject to any
determination in such proceeding, be restored
severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in
addition to every other right and remedy given
hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to
direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee; provided that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture or
expose the Trustee to personal liability, and
(b) subject to the provisions of Trust
Indenture Act Section 315, the Trustee may take
any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf
of the Holders of all the Securities waive any past
Default or Event of Default hereunder and its
consequences, except a Default or Event of Default
(a) in respect of the payment of the principal
of (or premium, if any, on) or interest on any
Security at its Maturity, or
(b) in respect of a covenant or provision
hereof which under Article IX cannot be
modified or amended without the consent of the
Holder of each Outstanding Security affected
thereby.
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 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security by its acceptance thereof shall be
deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal
of (or premium, if any, on) or interest on any
Security on or after the respective Stated
Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption
Date).
Section 5.15 Waiver of Stay or Extension.
The Company and any Guarantor covenant (to the
extent that they may lawfully do so) that they will
not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or
advantage of, any stay or extension wherever
enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of
this Indenture or any Guarantee; and the Company and
any Guarantor (to the extent that they may lawfully
do so) hereby expressly waive all benefit or
advantage of any such law, and covenant that they
will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will
suffer and permit the execution of every such power
as though no such law had been enacted.
Section 5.16 Event of Default from Willful Action.
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 Securities pursuant
to Section 11.1, a premium equal to the premium that
would have been payable had the Securities been
redeemed on the date of the occurrence of the Event
of Default shall also become and be immediately due
and payable to the extent permitted by law.
The Trustee will have no responsibility for making,
or obligation to make, any determination that any
such Event of Default has occurred by reason of any
willful action (or inaction) taken (or not taken) by
or on behalf of the Company pursuant to this Section
5.16. If such premium is payable hereunder, the
Company will provide the Trustee with an Officers_
Certificate setting forth the date such premium is
required to be paid at least 45 days prior to such
payment date.
ARTICLE VI
THE TRUSTEE
Section 6.1 Notice of Defaults.
Within 30 days after the occurrence of any Default
that is known to the Trustee, the Trustee shall
transmit by mail to all Holders, as their names and
addresses appear in the Security Register, notice of
such Default, unless such default shall have been
cured or waived; provided, however, that, except in
the case of a default in the payment of the
principal of (or premium, if any) or interest on any
Security, the Trustee shall be protected in
withholding such notice if and so long as the board
of directors, the executive committee or a trust
committee of directors and/or Responsible Officers
of the Trustee in good faith determines that the
withholding of such notice is in the interest of the
Holders.
Section 6.2 Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be
protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument. opinion, report, notice, request,
direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other
paper or document believed by it to be genuine
and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of
the Company may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) 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 in respect of any
action taken, suffered or omitted by it
hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested
in it by this Indenture at the request or
direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or
indemnity against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other
paper or document, but the Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it
may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall be entitled to examine
the books, records and premises of the Company
or the Guarantor, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties
hereunder either directly or by or through
agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence
on the part of any agent or attorney appointed
with due care by it hereunder;
(h) no provision of this Indenture shall
require the Trustee to expend or risk its own
funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it; and
(i) the Trustee shall not be liable for any
action it takes or omits to take in good faith
which it believes to be authorized or within
the rights or powers conferred upon it by this
Indenture.
Section 6.3 Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture
or of the Securities. The Trustee shall not be
accountable for the use or application by the
Company of Securities or the proceeds thereof,
except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture,
authenticate the Securities and perform its
obligations hereunder and that the statements made
by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications
set forth therein.
Section 6.4 May Hold Securities.
The Trustee and any Paying Agent, Security Registrar
or other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee
of Securities and, subject to Trust Indenture Act
Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar
or such other agent.
Section 6.5 Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the
extent required by law. The Trustee shall be under
no liability for interest on any money received by
it hereunder except as otherwise agreed with the
Company.
Section 6.6 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time
reasonable compensation for all services
rendered by it hereunder (which compensation
shall not be limited by any provision of law in
regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided
herein, to reimburse the Trustee upon its
request for all reasonable expenses,
disbursements and advances incurred or made by
the Trustee in accordance with any provision of
this Indenture (including the reasonable
compensation and the expenses and disbursements
of its agents and counsel), except any such
expense, disbursement or advance as may be
attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or
expense incurred without negligence or bad
faith on its part, arising out of or in
connection with the acceptance or
administration of this trust, including the
costs and expenses of defending itself against
any claim or liability in connection with the
exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall
have a claim prior to the Securities upon all
property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit
of Holders of particular Securities.
If the Trustee incurs expenses or renders services
after the occurrence of an Event of Default
specified in Section 5.1(f) or (g), the expenses and
compensation for such services are intended to
constitute expenses of administration under the
Federal Bankruptcy Code or any similar federal or
state law for the relief of debtors.
Section 6.7 Conflicting Interests.
The Trustee shall comply with the provisions of
Section 3.10(b) of the Trust Indenture Act.
Section 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be eligible to act as Trustee under
Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at
least $25,000,000 and have its Corporate Trust
Office located in The City of New York (or if its
Corporate Trust Office shall not be located in The
City of New York, which shall maintain an office or
agency in The City of New York where the Securities
may be presented or surrendered and notices and
demands hereunder may be made or served) to the
extent there is such an institution eligible and
willing to serve. If such corporation publishes
reports of condition at least annually pursuant to
law or to the requirements of federal, state,
territorial or District of Columbia supervising or
examining authority, then, for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent
report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign
immediately in the manner and with the effect
hereinafter specified in this Article VI.
Section 6.9 Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee
pursuant to this Article shall become effective
until the acceptance of appointment by the
successor Trustee under Section 6.10.
(b) The Trustee may resign at any time by
giving written notice thereof to the Company.
If an instrument of acceptance by a successor
Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee
may petition any court of competent
jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by
an Act of the Holders of a majority in
principal amount of the Outstanding Securities,
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section
310(b) after written request therefor by the
Company or by any Holder who has been a bona
fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after
written request therefor by the Company or by
any Holder who has been a bona fide Holder of
a Security for at least six months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its
property shall be appointed or any public officer
shall take charge or control of the Trustee or of
its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then in any case, (i) the Company by a Board
Resolution may remove the Trustee, or (ii) subject
to Section 5.14, the Holder of any Security who has
been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee.
If, within one year after such resignation,
removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority
in principal amount of the Outstanding
Securities delivered to the Company and the
retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance
of such appointment in accordance with Section
6.10, become the successor Trustee and
supersede the successor Trustee appointed by
the Company. If no successor Trustee shall
have been so appointed by the Company or the
Holders of the Securities and so accepted
appointment, the Holder of any Security who has
been a bona fide Holder for at least six months
may on behalf of himself and all others
similarly situated, petition any court of
competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each
resignation and each removal of the Trustee and
each appointment of a successor Trustee by
mailing written notice of such event by first
class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear
in the Security Register. Each notice shall
include the name of the successor Trustee and
the address of its Corporate Trust Office.
Section 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of
the retiring Trustee; provided, however, that the
retiring Trustee shall continue to be entitled to
the benefit of Section 6.6c. On request of the
Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such
successor Trustee all such rights, powers and trusts
of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all
Instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this
Article VI.
Section 6.11 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated,
or any corporation resulting from any merger,
conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust
business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this
Article, without the execution or filing of any
paper or any further act on the part of any of the
parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the
Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect
as if such successor Trustee had itself
authenticated such Securities.
Section 6.12 Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a
creditor of the Company (or any other obligor under
the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any
such other obligor).
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee or any
agent of either of them shall be held accountable by
reason of the disclosure of any information as to
the names and addresses of the Holders in accordance
with Trust Indenture Act Section 312, regardless of
the source from which such information was derived,
and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a
request made under Trust Indenture Act Section 312.
Section 7.2 Reports by Trustee.
Within 60 days after May 15 of each year commencing
with the first May 15 after the first issuance of
Securities, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in
the Security Register, as provided in Trust
Indenture Act Section 313c, a brief report dated as
of such May 15 if required by Trust Indenture Act
Section 313(a).
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 securities exchange, if any,
on which the Securities are listed. The Company
shall notify the Trustee in writing when the
Securities are listed on any securities exchange.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 8.1 Company May Consolidate, etc., Only
on Certain Terms.
The Company shall not consolidate with or merge with
or into any other Person or sell, assign, convey,
transfer, lease or otherwise dispose of all or
substantially all of its properties and assets
substantially as an entirety to any Person or group
of affiliated Persons, whether in one transaction or
a series of related transactions, unless at the time
and after giving effect thereto:
(i) either (a) the Company shall be the continuing
or surviving corporation or (b) the Person (if
other than the Company) formed by such
consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or
disposition shall have been made (the
"Surviving Entity"), is a corporation duly
organized and validly existing under the laws
of the United States of America, any state
thereof or the District of Columbia and shall,
in either case, expressly assume by
supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory
to the Trustee, all the Obligations of the
Company under the Securities and this
Indenture;
(ii) immediately prior to such transaction, and
immediately after giving effect to such
transaction, no Default or Event of Default
exists;
(iii) immediately after giving effect to such
transaction on a pro forma basis, the
Consolidated Net Worth (prior to any purchase
accounting adjustments resulting from the
transaction) of the Company (or the Surviving
Entity if the Company is not the continuing
obligor under this Indenture) is equal to or
greater than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(iv) immediately after giving effect to such
transaction on a pro forma basis, the
Consolidated Interest Coverage Ratio of the
Company (or the Surviving Entity if the Company
is not the continuing obligor under this
Indenture), for the Company's (or the Surviving
Entity's, as the case may be) four most
recently completed full fiscal quarters is at
least 2.0 to 1.0; and
(v) the Company has delivered to the Trustee, in
form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an
Opinion of Counsel, each stating that such
consolidation, merger or sale, assignment,
transfer, lease, conveyance or disposition and
such supplemental indenture, if one is required
by this Section 8.1, comply with this Section
8.1 and that all conditions precedent herein
provided for relating to such transaction have
been complied with (and, in the case of the
Officers' Certificate, setting forth in
reasonable detail the calculations used in
determining compliance with the foregoing
provisions); provided that a Wholly Owned
Subsidiary may consolidate with, or merge with
or into, or convey, transfer or lease all or
substantially all of its assets to the Company
or another Wholly Owned Subsidiary.
Section 8.2 Successor Substituted.
Upon any consolidation or merger or any sale,
assignment, transfer, lease or conveyance or other
disposition of all or substantially all of the
assets of the Company in accordance with Section
8.1, the successor Person formed by such
consolidation or into 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, and may exercise
every right and power of, the Company under this
Indenture with the same effect as if such successor
Person had been named as the Company herein. When a
successor assumes all the obligations of its
predecessor under this Indenture and the Securities,
the predecessor (including the Guarantor) will be
released from those obligations; provided that in
the case of a transfer by lease, the predecessor
corporation shall not be released from the payment
of principal (and premium, if any) and interest on
the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company,
when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may
enter into one or more indentures supplemental
hereto in form satisfactory to the Trustee, for any
of the following purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities;
(b) to add to the covenants of the Company for
the benefit of the Holders, or to surrender any
right or power herein or in the Securities
conferred upon the Company;
(c) to add any additional Events of Defaults;
(d) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee
pursuant to the requirements of Section 6.10;
(e) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other
provision herein; provided that, in each case,
such provisions shall not adversely affect the
interests of the Holders in any material
respect;
(f) to add any Subsidiary as a Guarantor
pursuant to the terms of Article XIV;
(g) to secure the Securities;
(h) to make any other change that does not
adversely affect the rights of any Holder; or
(i) to comply with any requirements of the
Commission to maintain the qualification of the
Indenture under the Trust Indenture Act.
After an amendment or supplement under this Section
9.1 becomes effective, the Company shall mail to the
Holders a notice briefly describing the amendment or
supplement.
Section 9.2 Supplemental Indentures with Consent of
Holders; Payments for Consents.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding
Securities, by Act of such Holders delivered to the
Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee
may enter into one or more indentures supplemental
hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the
provisions of this Indenture or of waiving or
modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no
such supplemental indenture, amendment or waiver
shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the
principal of, or any installment of interest
on, any Security or reduce the principal amount
thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or
change the coin or currency in which the
principal of any Security or any premium or the
interest thereon is payable, or impair the
right to institute suit for the enforcement of
any such payment after the Stated Maturity
thereof (or, in the case of redemption, on or
after the Redemption Date) or modify the
obligation of the Company to purchase
Securities upon a Change of Control Triggering
Event; or
(b) reduce the percentage in principal amount
of the Outstanding Securities, the consent of
whose Holders is required for any such
supplemental indenture or the consent of whose
Holders is required for any waiver of
compliance with certain provisions of this
Indenture or certain defaults hereunder and
their consequences provided for in this
Indenture; or
(c) modify any of the provisions of this
Section or Section 5.13, except to increase any
such percentage or to provide that certain
other provisions of this Indenture cannot be
modified or waived without the consent of the
Holder of each Security affected thereby; or
(d) modify any of the provisions of Article
XII in a manner adverse to the Holders of the
Securities.
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 Security for
or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this
Indenture or the Securities, unless such
consideration is offered to be paid or agreed to be
paid to all Holders of the Securities which so
consent, waive or agree to amend in the time frame
set forth in solicitation documents relating to such
consent, waiver or agreement.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof.
Notwithstanding the foregoing, no such supplemental
indenture, amendment or waiver shall without the
consent of all holders of the Senior Indebtedness or
Guarantor Senior Indebtedness, as the case may be,
amend or modify any of the provisions of Article XII
or Sections 14.6 through 14.12 in a manner adverse
to the holder of such Senior Indebtedness or
Guarantor Senior Indebtedness, as the case may be.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by
this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust
Indenture Act Section 315(a) through 315(d) and
Section 6.2 hereof) shall be fully protected in
relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is
authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities
theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to
this Article may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new securities so modified as to conform,
in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding
Securities.
Section 9.7 Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the
rights of the holders of Senior Indebtedness under
Article XII unless the requisite holders of each
issue of Senior Indebtedness affected thereby shall
have consented to such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the
principal of (and premium, if any), and interest on
the Securities in accordance with the terms of the
Securities and this Indenture.
An installment of principal (including any
redemption or repurchase of Securities pursuant to
Section 10.15, Section 10.16 or Article XI) or
interest shall be considered paid on the date it is
due if the Paying Agent (other than the Company, any
Guarantor, any Subsidiary of the Company or any of
their Affiliates), holds on that date money
deposited by the Company in available funds and
designated for and sufficient to pay all principal
(and premium, if any) and interest then due.
The Company shall pay interest (including post-
petition interest in any proceeding under any
federal or state bankruptcy law, whether or not
permitted thereby) on overdue principal at the
Default Rate; it shall pay interest (including post-
petition interest in any proceeding under any
federal or state bankruptcy law to the full extent
permitted thereby) on overdue installments of
interest at the Default Rate to the extent legally
permitted.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain, in The City of New York,
an office or agency where Securities may be
presented or surrendered for payment, where
Securities may be surrendered for registration of
transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities
and this Indenture may be served. If the Corporate
Trust Office is located in New York City, then it
shall be such office or agency of the Company,
unless the Company shall designate and maintain some
other office or agency for one or more of such
purposes. The Company will give prompt written
notice to the Trustee of any change in the location
of any 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, and
the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one
or more other offices or agencies (in or outside of
The City of New York) where the Securities may be
presented or surrendered for any or all such
purposes, and may from time to time rescind such
designation; 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 City of New York for such
purposes. The Company will give prompt written
notice to the Trustee of any such designation or
rescission and any change in the location of any
such other office or agency.
Section 10.3 Money for Security Payments to Be
Held in Trust.
If the Company shall at any time act as its own
Paying Agent, it will, on or before each due date of
the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to
act; provided that (a) with respect to any such
sums, such trust shall arise and be enforceable only
on and after the date on which payment is due with
regard to such sums, and only to the extent payment
is then due, and (b) nothing in this Section 10.3
shall prevent the payment of sums that have been
deposited in trust with the Trustee in accordance
with Article XIII hereof.
Whenever the Company shall have one or more Paying
Agents for the Securities, it will, at or before
11:00 a.m. on each due date of the principal of (and
premium, if any, on) or interest on any Securities,
deposit with a Paying Agent a sum in same day funds
(or New York Clearing House funds if such deposit is
made prior to the date on which such deposit is
required to be mailed) sufficient to pay the
principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal,
premium or interest and (unless such Paying Agent is
the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than
the Trustee) to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment
of the principal of (and premium, if any, on)
or interest on Securities in trust for the
benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by
the Company (or any other obligor upon the
Securities) in the making of any payment of
principal (and premium, if any) or interest;
and
(c) at any time during the continuance of any
such Default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as
those upon which such sums were held by the
Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and
premium, if any, on) or interest on any
Security and remaining unclaimed for two years
after such principal (and premium, if any) or
interest has become due and payable shall be
paid to the Company on Company Request or (if
then held by the Company) shall be discharged
from such trust; and the Holder of such
Security shall thereafter, as an unsecured
general creditor, look only to the Company for
payment thereof, and all liability of the
Trustee or such Paying Agent with respect to
such trust money, and all liability of the
Company as trustee thereof, shall thereupon
cease.
Section 10.4 SEC Reports. Notwithstanding that
the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, to the extent permitted by the
Exchange Act, the Company will file with the SEC and,
in any event, will provide, within 15 days after the
Company is (or would be) required to file the same
with the SEC, the Trustee and Holders and prospective
Holders (upon request) with the annual reports and the
information, documents and other reports which are
specified in Sections 13 and 15(d) of the Exchange
Act. In the event that the Company is not permitted
to file such reports, documents and information with
the SEC, the Company will provide substantially
similar information to the Trustee, the Holders and
prospective Holders (upon request) as if the Company
were subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. The
Company will be deemed to have satisfied such
requirements if Holding files and provides reports,
documents and information of the types otherwise so
required, in each case within the applicable time
periods, and the Company is not required to file
such reports, documents and information separately
under applicable rules and regulations of the SEC
(after giving effect to any exemptive relief)
because of the filings by Holding. The Company also
will comply with the other provisions of Section
314(a) of the Trust Indenture Act.
Section 10.5 Corporate Existence.
Subject to Article VIII and Section 10.17, the
Company shall do or cause to be done all things
necessary to preserve and keep in full force and
effect the corporate existence of the Company and
each Subsidiary of the Company and the corporate
rights (charter and statutory), corporate licenses
and corporate franchises of the Company and its
Subsidiaries in each jurisdiction in which the
character of the properties owned or leased by it
therein or in which the transaction of its business
is such that it is required to do so; provided that
the Company shall not be required to preserve any
such existence (except of the Company), right,
license or franchise if the Board of Directors of
the Company, or of the Subsidiary concerned, shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the
Company and its Subsidiaries as a whole and that the
loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.6 Payment of Taxes and other Claims;
Compliance with Law.
The Company will pay or discharge or cause to be
paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b)
all material lawful claims for labor, materials and supplies
that, if unpaid, would have a Material Adverse
Effect; provided, however, that the Company shall
not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is
being contested in good faith by appropriate
proceedings.
The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws,
ordinances or government rules and regulations to
which it is subject, noncompliance with which would
have a Material Adverse Effect.
Section 10.7 Maintenance of Properties; Insurance.
The Company shall cause all material properties
owned by or leased to it or any Subsidiary of the
Company and necessary in the conduct of its business
or the business of such Subsidiary to be maintained
and kept in normal condition, repair and working
order, ordinary wear and tear excepted; provided
that nothing in this Section shall prevent the
Company or any Subsidiary of the Company from
discontinuing the use, operation or maintenance of
any of such properties, or disposing of any of them,
if such discontinuance or disposal is, in the
judgment of the Company, desirable in the conduct of
the business of the Company or any Subsidiary of the
Company and if such discontinuance or disposal is
not adverse in any material respect to the Holders
of the Securities.
The Company shall provide or cause to be provided,
for itself and its Subsidiaries of the Company,
insurance (which may include appropriate self-
insurance) against loss or damage to the extent
customarily insured against by corporations
similarly situated and owning like properties in the
same general areas in which the Company or such
Subsidiaries operate, except where such failure to
do so could not reasonably be expected to have a
Material Adverse Effect.
Section 10.8 Limitation on Indebtedness.
The Company will not, and will not permit any of its
Subsidiaries to, Incur any Indebtedness (including
any Acquired Indebtedness, but excluding Permitted
Indebtedness) unless, at the time of the Incurrence
thereof and after giving effect thereto on a pro
forma basis, the Company's Consolidated Interest
Coverage Ratio for the four full fiscal quarters for
which financial information in respect thereof is
available immediately preceding such Incurrence,
taken as one period and calculated on the assumption
that such Indebtedness had been Incurred on the
first day of such four-quarter period and, in the
case of Acquired Indebtedness, on the assumption
that the related acquisition (whether by means of
purchase, merger or otherwise) also had occurred on
such date with the appropriate adjustments with
respect to such acquisition being included in such
pro forma calculation, would have exceeded 2.0 to
1.0.
Section 10.9 Limitation on Restricted Payments.
(a) The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend on, or make any
other distribution to holders (in their
capacities as such) of, any shares of the
Company's Capital Stock (other than dividends
or distributions payable in shares of its
Capital Stock or in options, warrants or
other rights to purchase such Capital Stock,
but excluding dividends or distributions
payable in Redeemable Capital Stock or in
options, warrants or other rights to purchase
Redeemable Capital Stock),
(ii) purchase, redeem or acquire or retire for
value any Capital Stock of the Company or any
Subsidiary or any options, warrants or other
rights to acquire such Capital Stock (other
than any such Capital Stock owed by a Wholly
Owned Subsidiary of the Company),
(iii) declare or pay any dividend or distribution
on any Capital Stock of any Subsidiary to any
Person (other than the Company or any of its
Wholly Owned Subsidiaries),
(iv) Incur any Indebtedness of any Affiliate
(other than with respect to (a) guarantees of
Indebtedness of any Wholly Owned Subsidiaries
by the Company or by another Wholly Owned
Subsidiary or (b) guarantees of Indebtedness
of the Company by any Wholly Owned Subsidiary, or
(v) make any Investment (other than any Permitted
Investment) in any Person other than in the
Company, a Wholly Owned Subsidiary of the
Company or a Person that becomes a Wholly
Owned Subsidiary of the Company as a result
of such Investment
(such payments or other actions described in the
foregoing clauses (i) through (v) are collectively
referred to as "Restricted Payments"), unless at the
time of and after giving effect to the proposed
Restricted Payment (the amount of any such
Restricted Payment, if other than cash, shall be as
determined by the Board of Directors of the Company,
whose determination shall be based on the Fair
Market Value thereof and shall be conclusive), (1)
no Default or Event of Default shall have occurred
and be continuing or shall occur as a result of such
Restricted Payment, (2) the Consolidated Interest
Coverage Ratio of the Company for the Company_s four
most recently completed fiscal quarters shall be at
least 2.0 to 1.0, and (3) the aggregate amount of
all Restricted Payments declared or made after the
date hereof shall not exceed the sum of:
(A) 50% of the aggregate cumulative
Consolidated Net Income of the Company (which
shall be treated as one accounting period)
during the period beginning on the last day of
the first full fiscal quarter occurring after
the date of this Indenture and ending on the
last day of the Company's last fiscal quarter
ending prior to the date of the declaration or
making of such proposed Restricted Payment (or,
if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such
loss), plus
(B) the aggregate net proceeds, including the
Fair Market Value of property other than cash
(as determined by the Company_s Board of
Directors, whose determination shall be
conclusive), received after the date hereof by
the Company from the issuance or sale (other
than to any of its Subsidiaries) of shares of
Capital Stock of the Company (other than
Redeemable Capital Stock) or warrants, options
or rights to purchase such shares of Capital
Stock of the Company (other than Redeemable
Capital Stock), plus
(C) the aggregate net proceeds, including the
Fair Market Value of property other than cash
(as determined by the Board of Directors of the
Company, whose determination shall be
conclusive) received after the date hereof by
the Company (other than from any of its
Subsidiaries) upon the exercise of options,
warrants or rights to purchase shares of
Capital Stock of the Company (other than
Redeemable Capital Stock), plus
(D) the aggregate net proceeds, including the
Fair Market Value of property other than cash
(as determined by the Board of Directors of the
Company, whose determination shall be
conclusive) received after the date hereof by
the Company from the issue or sale of debt
securities or Redeemable Capital Stock that
have been converted into or exchanged for
Capital Stock of the Company (other than
Redeemable Capital Stock), plus the aggregate
amount of cash received by the Company at the
time of such conversion or exchange, plus
(E) the aggregate net proceeds, including the
Fair Market Value of property other than cash
(as determined by the Board of Directors of the
Company, whose determination shall be
conclusive) received after the date hereof by
the Company in disposition of any Investment
(or portion thereof) made after the date hereof
which was a Restricted Payment.
The foregoing provision will not be violated by reason of
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at
such declaration date such declaration complied
with the foregoing provision (in which event
such dividend shall be deemed to have been paid
on such date of declaration thereof for
purposes of the foregoing provision),
(ii) Restricted Payment by a Subsidiary solely to
the Company or a Wholly Owned Subsidiary of the Company,
or
(iii) the retirement redemption, repurchase or other
acquisition of any shares of Capital Stock or
Indebtedness that is expressly subordinated in
right of payment to the Securities, in exchange
for (including any such exchange pursuant to a
conversion right or privilege in connection
with which cash is paid in lieu of fractional
shares or scrip), or out of the proceeds of the
substantially concurrent sale for cash (other
than to a Subsidiary of the Company) of, shares
of Capital Stock (other than Redeemable Capital
Stock) of the Company.
(b) In computing Consolidated Net Income of
the Company under clause (A) of Section 10.9(a), (1)
the Company shall use audited financial statements for
the portions of the relevant period for which audited
financial statements are available on the date of
determination and unaudited financial statements and
other current financial data based on the books and
records of the Company for the remaining portion of
such period and (2) the Company shall be permitted to
rely in good faith on the financial statements and
other financial data derived from the books and records
of the Company that are available on the date of
determination. If the Company makes a Restricted Payment
which, at the time of the making of such Restricted Payment
would in the good faith determination of the Company
be permitted under the applicable provisions of this
Section 10.9, such Restricted Payment shall be deemed
to have been made in compliance with such provisions
notwithstanding any subsequent adjustments made in
good faith to the Company's financial statements
affecting Consolidated Net Income of the Company
for any period.
Section 10.10 Transactions with Affiliates.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into
any transaction or series of related transactions
(including, without limitation, the sale, purchase,
exchange or lease of assets, property or services)
with any Affiliate of the Company (other than a
Wholly Owned Subsidiary thereof) unless (i) such
transaction or series of transactions is or are on
terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than could have
been obtained at the time of such transaction or
transactions in a comparable transaction in arm's-
length dealings with Persons who are not Affiliates
and (ii) with respect to any transaction or series
of transactions involving aggregate consideration in
excess of $5 million, the Company delivers an
Officers' Certificate to the Trustee certifying that
such transaction or series of transactions complies
with clause (i) above and that such transaction or
series of transactions has received the approval of
a majority of the disinterested directors of the
Board of Directors of the Company; provided,
however, that the foregoing restriction shall not
apply to transactions pursuant to agreements in
effect at or entered into on the Issue Date (and not
otherwise in violation of this Indenture); provided
that any renewal or modification of the terms of any
such agreement after the Issue Date shall comply
with the provisions of this Section 10.10. For
purposes of this Section 10.10, any transaction or
series of related transactions between the Company
or any of its Subsidiaries and any Affiliate of the
Company that is approved as being on the terms
required by clause (i) above by a majority of the
disinterested directors of the Board of Directors of
the Company shall be deemed to be on terms as
favorable as those that might be obtained at the
time of such transaction or series of transactions
in a comparable transaction in arm_s-length dealings
with an unaffiliated third party, and thus shall be
permitted under this Section 10.10. This covenant
will not restrict the Company or any of its
Subsidiaries from (i) paying reasonable and
customary directors fees, executive compensation and
severance amounts, (ii) making loans and advances to
officers and employees in respect of travel, moving
and entertainment expenses Incurred, or to be
Incurred, by such officers, directors and employees
or (iii) entering into guarantees in respect of
Indebtedness incurred by officers or employees in
the ordinary course of business and payments in
discharge thereof in an amount not to exceed the
excess of (x) $500,000 at any time outstanding over
(y) the aggregate amount, if any, paid after the
Issue Date in respect of such guarantees.
Section 10.11 Limitation on Liens.
The Company shall not, and shall not permit any of
its Subsidiaries to, Incur any Lien of any kind
(other than Permitted Liens) upon any property or
assets of the Company or of any such Subsidiary or
with respect to any Indebtedness of any such
Subsidiary.
Section 10.12 Limitation on Other Senior Subordinated
Indebtedness.
The Company will not Incur any Indebtedness that is
subordinate or junior in ranking in any respect to
any Senior Indebtedness unless such Indebtedness is
also expressly subordinated in right of payment to
the Securities.
Section 10.13 Restriction on Issuance of Preferred
Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries
to issue any Preferred Stock (other than to the
Company or a Wholly Owned Subsidiary of the Company)
or permit any Person (other than the Company or a
Wholly Owned Subsidiary of the Company) to own or
hold an interest in any Preferred Stock of any such
Subsidiary, except (i) replacements of then
outstanding Preferred Stock or (ii) stock splits,
stock dividends and similar issuances which do not
decrease the percentage ownership of the Company or
any of its Subsidiaries in such Subsidiary.
Section 10.14 Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any
Subsidiary to, create or otherwise cause or suffer
to exist or become effective any consensual Payment
Restriction except (i) any Payment Restriction
pursuant to the Credit Agreement or any other
agreement in effect at or entered into on the Issue
Date; (ii) any Payment Restriction with respect to a
Subsidiary that is not a Subsidiary of the Company
on the date hereof, in existence at the time such
Person becomes a Subsidiary of the Company or
created on the date it becomes a Subsidiary; and
(iii) any Payment Restriction pursuant to any
agreement that extends, refinances, renews or
replaces any agreement containing any of the
restrictions described in the foregoing clauses (i)
and (ii); provided that the terms and conditions of
any such restrictions are not materially less
favorable to the Holders of the Securities than
those under or pursuant to the agreement so
extended, refinanced, renewed or replaced.
Section 10.15 Purchase of Securities upon Change
of Control.
(a) Upon the occurrence of a Change of Control,
the Company shall be obligated to make an offer to purchase
(a "Change of Control Offer") and shall, subject to the
provisions described below, purchase, on a Business Day
(the "Change of Control Purchase Date") that is not earlier
than 30 days nor later than 60 days following the occurrence
of a Change of Control or such later date as may be necessary
for the Company to comply with requirements under the
Exchange Act, all of the then Outstanding Notes at a purchase
price payable in cash equal to 101% of the principal amount
of such Securities, plus accrued and unpaid interest
(including any Defaulted Interest), if any, to the Change
of Control Purchase Date (the "Change of Control Purchase
Price"); provided, however, that notwithstanding the
occurrence of a Change of Control, the Company shall not
be obligated to make a Change of Control Offer in the
event that it has exercised its rights to redeem all of
the Securities as described in Section 11.1 and the form
of Securities as described in Section 2.3 within 30 days
after the occurrence of such Change of Control.
(b) Within 30 days after the occurrence of a
Change of Control, the Company shall give written notice
(a "Change of Control Notice") of such Change of Control
Offer to the Trustee, and the Trustee shall promptly upon
its receipt of such notice give a copy of such notice to
Holders in the manner specified in Section 1.7. The
Trustee shall be under no obligation to ascertain whether
a Change of Control has occurred or to give notice with respect
thereto other than as provided above upon receipt of a
Change of Control Notice from the Company. The Change
of Control Notice shall include such disclosures as are
required by law and a form of Change of Control Purchase
Notice (as defined in Section 10.15c) to be completed
by the Holder and shall state:
(i) the events causing the Change of Control
and the date such Change of Control is
deemed to have occurred for purposes of
this Section 10.15;
(ii) that Holders electing to have Securities
purchased pursuant to a Change of
Control Offer will be required to
surrender their Securities to the Paying
Agent at the address specified in the
Change of Control Notice prior to 5:00
p.m., New York City time, on the Change
of Control Purchase Date and must
complete the Change of Control Purchase
Notice;
(iii) the Change of Control Purchase Price;
(iv) the Change of Control Purchase Date;
(v) that any Security not tendered will
continue to accrue interest;
(vi) that all Securities accepted for payment
will cease to accrue interest after the
Change of Control Purchase Date unless
the Company defaults in paying the
Change of Control Purchase Price;
(vii) that the Company will pay the Change of
Control Purchase Price for any
Securities that have been properly
tendered and not withdrawn promptly
following the Change of Control Purchase
Date;
(viii) that Holders whose Securities are
purchased only in part will be issued
one or more new Securities equal in
principal amount to the unpurchased
portion of the Securities surrendered;
and
(ix) the procedures a Holder must follow to
exercise rights under this Section 10.15
and a brief description of those rights.
(c) Prior to the mailing a Change of
control Notice, the company shall have (i)
terminated all commitments and paid in
full all Indebtedness under the Credit
Agreement, or offered (as required below)
to terminate such commitments and repay in
full such Indebtedness effective simultaneously
with the mailing of the Change of Control Notice
or (ii) obtained the requisite consents under
the Credit Agreement to permit the purchase of the
Securities in accordance with this Section 10.15.
If change of Control Notice has been mailed when
such condition precedent has not been satisfied,
the Company shall have no obligation to (and shall
not) effect the purchase of the Securities, until
such time as such condition precedent is satisfied.
The Company shall, no later than two (2) Business Days
after the occurrence of a Change of Control, (i)
terminate all commitments and pay in full all
Indebtedness under the Credit Agreement, or offer to
terminate such commitments and repay in full such
Indebtedness no later than 29 days after the occurrence
of the Change of Control, or (ii) obtain the requisite
consents under the Credit Agreement to permit purchase
of the Securities in accordance with the provisions of
this Section 10.15.
(d) A Holder may exercise its rights
specified in Section 10.15(a) upon (i)
delivery to any Paying Agent a written
notice (a "Change of Control Purchase
Notice") at any time prior to the close of
business on the Change of Control Purchase
Date, stating (A) the certificate number
of the Security that the Holder will
deliver to be purchased and (B) the
portion of the principal amount of the
Security that the holder will deliver to
be purchased, which portion must be $1,000
or an integral multiple thereof, and (ii)
delivery of such Security to such Paying
Agent at such office prior to, on or after
the Change of Control Purchase Date
(together with all necessary endorsements),
such delivery being a condition to receipt by
the Holder of the Change of Control Purchase
Price therefor.If a Holder has elected to deliver
to the Company for purchase a portion of a
Security, and if the principal amount of
such portion is $1,000 or an integral
multiple of $1,000, the Company shall
purchase such portion from the Holder
thereof pursuant to this Section 10.15.
Provisions of this Indenture that apply to
the purchase of all of a Security also
apply to the purchase of a portion of such
Security. Each Paying Agent shall promptly
notify the Company of the receipt by the
former of any and all Change ofControl Purchase
Notices.
(e) Upon receipt by any Paying Agent of a
Change of Control Purchase Notice, the
Holder of the Security in respect of which
such Change of Control Purchase Notice was
given shall thereafter be entitled to receive
solely the Change of Control Purchase Price
with respect to such Security. Such Change
of Control Purchase Price shall be paid to such
Holder promptly following the later of the Business
Day following the Change of Control Purchase Date
(provided the conditions in Section 10.15c have been
satisfied) and the time of delivery of such Security
to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner
required by Section 10.15c.
(f) On or prior to the Change of Control
Purchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.3) an amount
of money in same day funds (or New York Clearing House
funds if such deposit is made prior to the Change of
Control Purchase Date) sufficient to pay the Change of
Control Purchase Price with respect to all the Securities
or portions thereof which are to be purchased on that
date. Any amounts remaining after the purchase of
Securities pursuant to a Change of Control Offer shall
be returned by the Trustee to the Company, which the
Company may apply in furtherance of its corporate
purposes.
(g) Upon receipt by the Company of the proper
tender of Securities, the Holder of the Security in
respect of which such proper tender was made shall
(unless the tender of such Security is properly
withdrawn) thereafter be entitled to receive solely
the Change of Control Purchase Price with respect to
such Security. Upon surrender of any such Security
for purchase in accordance with the foregoing provisions,
such Security shall be purchased by the Company at the
Change of Control Purchase Price; provided, however,
that installments of interest whose Stated Maturity is
on or after the Change of Control Purchase Date but
whose Regular Record Date is before the Change of Control
Purchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section
3.7. If any Security tendered for purchase shall not
be so paid upon surrender thereof, the principal thereof
(and premium, if any, thereon) shall, until paid, bear
interest from the Change of Control Purchase Date at the
Default Rate.
(h) Any Security that is to be purchased only in
part shall be surrendered to a Paying Agent at the office
of such Paying Agent (with, if the Company or the Trustee
so requires, due endorsement by or a written instrument of
transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, one
or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount
equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
(i) In connection with any offer to purchase or
purchase of Securities under this Section 10.15, the Company
shall comply, to the extent applicable, with any other
requirements of Section 14e-1 of the Exchange Act, and any
other securities laws or regulations.
(j) The Company shall not be required to make a
Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company
and purchases all Securities validity tendered and not
withdrawn under such Change of Control Offer.
(k)) Subject to applicable escheat laws, the Paying
Agent (if other than the Company) shall return to the
Company any cash that remains unclaimed, together with
interest or dividends, if any thereon, held by them for
payment of the Change of Control Purchase Price within
six months following the Change of Control Purchase Date
and, after the return of such cash to the Company, any
Holder entitled to the payment of such Change of Control
Purchase Price shall look solely to the Company for
payment.
Section 10.16 Limitation on Asset Sales.
(a) The Company will not, and will not permit
any of its Subsidiaries to, in one transaction
or a series of related transactions, other than
in the ordinary course of business, convey,
sell, transfer, assign or otherwise dispose of,
directly or indirectly, any of its property,
businesses or assets, including by merger or
consolidation and including any sale or other
transfer or issuance of any Capital Stock of
any Subsidiary of the Company, whether by the
Company or by such Subsidiary (any of the
foregoing, an "Asset Sale"), unless (i) the
Company or the applicable Subsidiary receives
consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the
assets sold or otherwise disposed of (as
determined in good faith by the Board of
Directors of the Company, as evidenced by a
Board Resolution), (ii) at least (x) 50% of the
first $5 million of consideration received by
the Company or the Subsidiary, as the case may
be, from such Asset Sale and (y) 75% of such
consideration in excess of $5 million, shall be
cash or Cash Equivalents and is received at the
time of such disposition, and (iii) the Company
delivers an Officers' Certificate to the
Trustee certifying that such Asset Sale
complies with the foregoing clauses (i) and
(ii); provided that (A) subject to the other
provisions of this Indenture, the Company,
together with its Subsidiaries, may make any
Asset Sale that is governed by Article VIII
hereof and (B) the first $3 million of Net Cash
Proceeds from Asset Sales in any fiscal year
will not be subject to the restrictions set
forth in the foregoing clauses (ii) and (iii).
(b) The Net Cash Proceeds of any Asset Sale
shall be applied by the Company or a Subsidiary
(i) to pay and permanently reduce any Senior
Indebtedness, (ii) to reinvest in Additional
Assets; or (iii) to redeem Securities in
accordance with this Section 10.16. To the
extent that such Net Cash Proceeds are not
applied as provided in clause (i) of the
preceding sentence, the Company or a
Subsidiary, as the case may be, may apply the
Net Cash Proceeds from such Asset Sale, within
360 days of such Asset Sale, to an investment
in Additional Assets so long as the Company or
such Subsidiary has notified the Trustee in
writing within 270 days of such Asset Sale that
it has determined to apply the Net Cash
Proceeds from such Asset Sale to an Investment
in such Additional Assets; provided however
that not more than $15 million of Net Cash
Proceeds may be reinvested in Additional Assets
during any rolling 18-month period. Any Net
Cash Proceeds from any Asset Sale not applied
as provided in clause (i) or (ii) of the first
sentence of this Section 10.16(b) within 360
days of such Asset Sale constitute _Excess
Proceeds' subject to disposition as provided
below.
(c) When the aggregate amount of Excess
Proceeds exceeds $5 million (the "Asset Sale
Trigger Date"), the Company shall make an offer
(an "Asset Sale Offer") to purchase, from all
Holders, an aggregate principal amount of
Securities equal to such Excess Proceeds, on a
Business Day that is not less than 30 days nor
more than 60 days thereafter or such later date
as may be necessary for the Company to comply
with the requirements of the Exchange Act (the
"Asset Sale Purchase Date"), at a price payable
in cash equal to 100% of the outstanding
principal amount of such Securities, plus
accrued and unpaid interest (including any
Defaulted Interest), if any, to the Asset Sale
Purchase Date (the "Asset Sale Purchase
Price"). To the extent that the aggregate
principal amount of Securities tendered
pursuant to an offer to purchase is less than
the Excess Proceeds, the Company may use such
deficiency for general corporate purposes. If
the aggregate principal amount of Securities
validly tendered by Holders thereof exceeds the
Excess Proceeds, Securities to be purchased
will be purchased on a pro rata basis. Upon
completion of such offer to purchase, the
amount of Excess Proceeds shall be reset to
zero.
(d) Within 30 days after the Asset Sale
Trigger Date, the Company shall give written
notice of such occurrence (an "Asset Sale
Notice") to the Trustee, and the Trustee shall
promptly upon its receipt of such notice give a
copy of such notice to Holders in the manner
specified in Section 1.7. The Trustee shall be
under no obligation to ascertain whether an
Asset Sale Trigger Date has occurred or to give
notice with respect thereto other than as
provided above upon receipt of an Asset Sale
Notice from the Company. The Asset Sale Notice
shall include such disclosures as are required
by law and a form of Asset Sale Offer Purchase
Notice (as defined in Section 10.16(e)) to be
completed by the Holder and shall state:
(i) that the offer to redeem Securities is
being made pursuant to Section 10.16;
(ii) that Holders electing to have Securities
purchased pursuant to an Asset Sale Offer will
be required to surrender their Securities to
the Paying Agent at the address specified in
the Asset Sale Notice prior to 5:00 p.m., New
York City time, on or prior to the Asset Sale
Purchase Date and must complete the Asset Sale
Purchase Notice;
(iii) the Asset Sale Purchase Price;
(iv) the Asset Sale Purchase Date;
(v) that any Security not tendered will
continue to accrue interest;
(vi) that all Securities accepted for payment
will cease to accrue interest after the Asset
Sale Purchase Date unless the Company
defaults in paying the Asset Sale Purchase Price;
(vii) that the Company will pay the Asset Sale
Purchase Price for any Securities that have
been properly tendered and not withdrawn
promptly following the Asset Sale Purchase
Date; provided, however, that if the
aggregate principal amount of the Securities
tendered pursuant to such redemption offer
exceeds the aggregate amount of the Excess
Proceeds Amount to be applied to such
redemption offer, the Company shall select
the Securities to be purchased on a pro rata
basis (with such adjustments as may be deemed
appropriate by the Company so that only
Securities in denominations of $1,000 or
multiples thereof shall be purchased);
provided, further, however, that if the
aggregate principal amount of Outstanding
Securities after the Asset Sale Purchase Date
would be less than $20,000,000, (assuming
100% acceptance of the offer), then the
Company shall offer to redeem all Outstanding
Securities;
(viii) that Holders whose Securities are
purchased only in part will be issued one or
more new Securities equal in principal amount
to the unpurchased portion of the Securities
surrendered; and
(ix) the procedures a Holder must follow to
exercise rights under this Section 10.16 and
a brief description of those rights.
(e) A Holder may exercise its rights
specified in Section 10.16(a) upon (i)
delivery to any Paying Agent a written
notice (an "Asset Sale Offer Purchase
Notice") at any time prior to the close of
business on the Asset Sale Offer Purchase
Date, stating (A) the certificate number
of the Security that the Holder will
deliver to be purchased and (B) the
portion of the principal amount of the
Security that the holder will deliver to
be purchased, which portion must be $1,000
or an integral multiple thereof, and (ii)
delivery of such Security to such Paying
Agent at such office prior to, on or after
the Asset Sale Offer Purchase Date
together with all necessary endorsements),
such delivery being a condition to receipt
by the Holder of the Asset Sale Offer Purchase
Price therefor. If a Holder has elected to
deliver to the Company for purchase a portion
of a Security, and if the principal amount of
such portion is $1,000 or an integral multiple
of $1,000, the Company shall purchase such portion
from the Holder thereof pursuant to this Section
10.16. Provisions of this Indenture that apply to
the purchase of all of a Security also apply to the
purchase of a portion of such Security. Each Paying
Agent shall promptly notify the Company of the
receipt by the former of any and all Asset Sale
Offer Purchase Notices.
(f) Upon receipt by any Paying Agent of
an Asset Sale Offer Purchase Notice, the
Holder of the Security in respect of which
such Asset Sale Offer Purchase Notice was
given shall thereafter be entitled to receive
solely the Asset Sale Offer Purchase Price with
respect to such Security. Such Asset Sale Offer
Purchase Price shall be paid to such Holder
promptly following the later of the Business Day
following the Asset Sale Offer Purchase Date
(provided the conditions in Section 10.16(e) have
been satisfied) and the time of delivery of such
Security to the relevant Paying Agent at the office
of such Paying Agent by the Holder thereof in the
manner required by Section 10.16(e).
(g) On or prior to the Asset Sale Offer
Purchase Date, the Company shall deposit
with the Trustee or with a Paying Agent
or, if the Company is acting as its own
Paying Agent, segregate and hold in trust
as provided in Section 10.3) an amount of
money in same day funds (or New York
Clearing House funds if such deposit is
made prior to the Asset Sale Offer
Purchase Date) sufficient to pay the Asset
Sale Offer Purchase Price with respect to
all the Securities or portions thereof
which are to be purchased on that date.
Any amounts remaining after the purchase
of Securities pursuant to an Asset Sale
Offer shall be returned by the Trustee to
the Company, which the Company may apply
in furtherance of its corporate purposes.
(h) Upon receipt by the Company of the
proper tender of Securities, the Holder of
the Security in respect of which such
proper tender was made shall (unless the
tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the
Asset Sale Offer Purchase Price with respect
to such Security. Upon surrender of any such
Security for purchase in accordance with the
foregoing provisions, such Security shall be
purchased by the Company at the Asset Sale Offer
Purchase Price; provided, however, that
installments of interest whose Stated Maturity
is on or after the Asset Sale Offer Purchase Date
but whose Regular Record Date is before the Asset
Sale Offer Purchase Date shall be payable to the
Holders of such Securities, or one or more
Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms
and the provisions of Section 3.7. If any Security
tendered for purchase shall not be so paid upon
surrender thereof, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest
from the Asset Sale Offer Purchase Date at the Default
Rate.
(i) Any Security that is to be purchased
only in part shall be surrendered to a
Paying Agent at the office of such Paying
Agent (with, if the Company or the Trustee
so requires, due endorsement by or a
written instrument of transfer in form
satisfactory to the Company and the
Trustee duly executed by, the Holder
thereof or such Holder's attorney duly
authorized in writing), and the Company
shall execute and the Trustee shall
authenticate and deliver to the Holder of
such Security, without service charge, one
or more new Securities of any authorized
denomination as requested by such Holder
in an aggregate principal amount equal to,
and in exchange for, the portion of the
principal amount of the Security so
surrendered that is not purchased.
(j) In connection with any offer to
purchase or purchase of Securities under
this Section 10.16, the Company shall
comply, to the extent applicable, with any
other requirements of Section 14e-1 of the
Exchange Act, and any other securities
laws or regulations.
(k) Subject to applicable escheat laws,
the Paying Agent (if other than the
Company) shall return to the Company any
cash that remains unclaimed, together with
interest or dividends, if any, thereon,
held by them for payment of the Asset Sale
Purchase Price within six months following
the Asset Sale Purchase Date, and after
the return of such cash to the Company,
any Holder entitled to payment of the
Asset Sale Purchase Price shall look
solely to the Company for payment.
Section 10.17 Statement as to Compliance;
Notice of Default; Provision of Financial Statements.
(a) The Company will deliver to the Trustee,
within 120 days after the end of each fiscal
year ending after the date hereof, an Officers_
Certificate stating that a review of the
activities of the Company and its Subsidiaries
during the preceding fiscal year has been made
under the supervision of the signing Officers
with a view to determining whether the Company
has kept, observed, performed and fulfilled its
obligations under this Indenture, and further
stating as to each such Officer signing such
Certificate, that to the best of his or her
knowledge, the Company has kept, observed,
performed and fulfilled each and every covenant
contained in this Indenture and is not in
default in the performance or observance of any
of the terms, provisions or conditions of this
Indenture (or, if a Default or Event of Default
shall have occurred, describing all such
Defaults or Events of Default of which he or
she may have knowledge and what action the
Company is taking or proposes to take with
respect thereto) and that to the best of his or
her knowledge, no event has occurred and
remains in existence by reason of which
payments on the account of the principal of
(and premium, if any) or interest on the
Securities is prohibited or if such an event
has occurred, a description of the event and
what action the Company is taking or proposes
to take with respect thereto. For purposes of
this Section 10.17, such compliance shall be
determined without regard to any period of
grace or requirement of notice under this
Indenture.
(b) The Company shall deliver to the Trustee,
as soon as possible following 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 10.18. Subsidiary Guarantees.
The Company will not permit any of its Subsidiaries
to guarantee the payment of any Indebtedness of the
Company or any Subsidiary of the Company unless such
Subsidiary (i) is, or, concurrently with such
guarantee will become, a Subsidiary Guarantor under
this Indenture in the manner set forth in Section
14.2 hereof and (ii) the Company shall concurrently
comply with the requirements set forth in Section
14.2.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption.
At any time on or after the earlier of (i) the third
anniversary of the date of this Indenture and (ii)
the occurrence of a Change of Control, the
Securities may be redeemed at the election of the
Company as a whole or from time to time in part
subject to the conditions and at the Redemption
Prices specified in the form of Security, together
with accrued interest to the Redemption Date;
provided, however, that if the aggregate principal
amount of Outstanding Securities after a redemption
would be less than $20 million, then the Company
shall redeem all Outstanding Securities.
Section 11.2 Applicability of Article.
Redemption of Securities at the election of the
Company, as permitted by any provision of this
Indenture, shall be made in accordance with such
provision and this Article.
Section 11.3 Election to Redeem; Notice to
Trustee.
The election of the Company to redeem any Securities
pursuant to Section 11.1 shall be evidenced by a
Board Resolution. In case of any redemption at the
election of the Company the Company shall, at least
45 days but not more than 75 days prior to the
Redemption Date fixed by it (unless a shorter notice
period shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed.
Section 11.4 Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities are to be redeemed,
the particular Securities or portions thereof to be
redeemed shall be selected not more than 60 days and
not less than 30 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities not
previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall
deem fair and appropriate and which may provide for
the selection for redemption of portions of the
principal of Securities; provided, however, that no
such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to
less than $1,000.
The Trustee shall promptly notify the Company and
the Security Registrar in writing of the Securities
selected for redemption and, in the case of any
Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating
to redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
Section 11.5 Notice of Redemption.
Notice of redemption shall be given by first class
mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at its
address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities
are to be redeemed, the identification (and, in
the case of a Security to be redeemed in part,
the principal amount) of the particular
Securities to be redeemed;
(d) that on the Redemption Date the Redemption
Price will become due and payable upon each
such Security or portion thereof, and, unless
the Company defaults in paying the Redemption
Price, that interest thereon shall cease to
accrue on and after said date; and
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the
Company or, at its request, by the Trustee in the
name and at the expense of the Company.
Section 11.6 Deposit of Redemption Price.
At least one Business Day prior to any Redemption
Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in same
day funds (or New York Clearing House funds if such
deposit is made prior to the applicable Redemption
Date) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the
Securities or portions thereof which are to be
redeemed on that date.
Section 11.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the
Redemption Price therein specified and from and
after such date (unless the Company shall default in
the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for
redemption in accordance with said notice, such
Security shall be paid by the Company at the
Redemption Price together with accrued interest to
the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms
and the provisions of Section 3.7. If any Security
is redeemed or purchased by the Company on or after
a Regular Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid
interest shall be paid to the Person in whose name
such Security was registered at the close of
business on such Regular Record Date.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the
principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Redemption
Date at the Default Rate.
Section 11.8 Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to
Section 10.2 (with, if the Company, the Security
Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security
Registrar or the Trustee duly executed by, the
Holder thereof or its attorney duly authorized in
writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new
Security or Securities, of any authorized
denomination as requested by such Holder in
aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
SUBORDINATION
Section 12.1. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of
a Security, by its acceptance thereof, likewise
covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness
that, to the extent and in the manner hereinafter
set forth in this Article, the indebtedness
represented by the Securities and the payment of the
principal of and premium, if any, and interest
(including any payments required due to the
occurrence of a Change of Control Triggering Event
or in connection with an Asset Sale Offer) on each
and all of the Securities are hereby expressly made
subordinate in right of payment to the prior payment
in full of all Senior Indebtedness (including any
interest accruing after the occurrence of an Event
of Default under Section 5.1(f) or (g)).
Section 12.2 Payment Over of Proceeds upon
Dissolution, etc.
In the event of (a) an insolvency or bankruptcy case
or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding
in connection therewith, relative to the Company or
to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether
voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or c any
assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company,
then and in any such event:
(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full of all
amounts due or to become due on or in respect
of all Senior Indebtedness, or provision shall
be made for such payment in cash or Cash
Equivalents, before the Holders of the
Securities are entitled to receive any payment
on account of principal of (or premium, if any)
or interest on the Securities; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in
cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee
would be entitled but for the provisions of
this Article XII (except, so long as the effect
of this parenthetical clause is not to cause
the Securities to be treated in any case or
proceeding or similar event described in
Subsection (a), (b) or c of this Section 12.2
as part of the same class of claims as the
Senior Indebtedness or any class of claims on a
Parity with or senior to the Senior
Indebtedness, for any such payment or
distribution (x) authorized by an order or
decree giving effect, and stating in such order
or decree that effect is given, to the
subordination of the Securities to the Senior
Indebtedness, and made by a court of competent
jurisdiction in a reorganization proceeding
under any applicable bankruptcy law, or (y) of
securities that are unsecured and are
subordinated, to at least the same extent as
the Securities, to the payment of all Senior
Indebtedness then outstanding), shall be paid
by the liquidating trustee or agent or other
Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any of such
Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of the principal
of, and premium, if any, and interest on, and
other amounts due on or in connection with, the
Senior Indebtedness to the extent necessary to
make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any
concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the
foregoing provisions of this Section, the
Trustee or the Holder of any Security shall
have received any such payment or distribution
of assets of the Company of any kind or
character, whether in cash, property or
securities (except, so long as the effect of
this parenthetical clause is not to cause the
Securities to be treated in any case or
proceeding or similar event described in
Subsection (a), (b) or c of this Section 12.2
as part of the same class of claims as the
Senior Indebtedness or any class of claims on a
parity with or senior to the Senior
Indebtedness, for any such payment or
distribution (x) authorized by an order or
decree giving effect, and stating in such order
or decree that effect is given, to the
subordination of the Securities to the Senior
Indebtedness, and made by a court of competent
jurisdiction in a reorganization proceeding
under any applicable bankruptcy law, or (y) of
securities that are unsecured and are
subordinated, to at least the same extent as
the Securities, to the payment of all Senior
Indebtedness then outstanding), before all
Senior Indebtedness is paid in full or payment
thereof provided for, then and in such event
such payment or distribution shall be paid over
or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person
making payment or distribution of assets of the
Company for application to the payment of all
Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness
in full, after giving effect to any concurrent
payment or distribution to or for the holders
of Senior Indebtedness.
The consolidation of the Company with, or the merger
of the Company into, another corporation or the
liquidation or dissolution of the Company following
the conveyance, transfer or lease of its properties
and assets substantially as an entirety to another
corporation upon the terms and conditions set forth
in Article VIII shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of
this Section if the corporation formed by such
consolidation or into which the Company is merged or
the corporation which acquires substantially as an
entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in
Article VIII.
Section 12.3 No Payment When Senior Indebtedness
in Default.
(i) In the event of and during the
continuation of any default in the payment of
principal of (or premium, if any) or interest
on any Senior Indebtedness beyond any
applicable grace period with respect thereto (a
"Payment Default"), or (ii) in the event that
a ny other event of default with respect to any
Senior Indebtedness shall have occurred and be
continuing that permits the holders of such
Senior Indebtedness (or a trustee on behalf of
such holders) to declare such Senior
Indebtedness due and payable prior to the date
on which it would otherwise have become due and
payable either without further notice or upon
the expiration of any grace period applicable
to such event of default, and written notice
thereof shall have been given to each of the
Company and the Trustee in the case of either
clause (i) or (ii) by the Agent Bank under the
Credit Agreement (the "Payment Notice"), then
no payment or distribution of any assets of the
Company of any kind or character shall be made
by the Company on account of the Obligations
(including without limitation, the principal of
(or premium, if any) or interest on the
Securities or on account of the purchase or
redemption or other acquisition of Securities)
until (x) in case of an event of default
specified in clause (i) of this Section 12.3,
unless and until such payment event of default
shall have been cured or waived or shall have
ceased to exist or the holders of such Senior
Indebtedness or their agents have waived the
benefits of this Section, or (y) in case of an
event of default specified in clause (ii) of
this Section 12.3, until the earlier of (1) 179
days after the date on which a Payment Notice
shall have been given and (2) the date, if any,
on which such event of default is waived by the
holders of such Senior Indebtedness or
otherwise cured or has ceased to exist or the
Senior Indebtedness to which such event of
default relates is discharged (provided that
further written notice relating to the same or
any other event of default specified in clause
(ii) of this Section 12.3 with respect to any
Senior Indebtedness received by the Company or
the Trustee within 12 months after such prior
receipt of a Payment Notice shall not be
effective to further prohibit such payments)
(the "Payment Blockage Period").
In the event that, notwithstanding the foregoing,
the Company shall make any payment to the Trustee or
the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in
such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to
any payment with respect to which Section 12.2 would
be applicable.
Section 12.4 Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in
this Indenture or in any of the Securities shall
prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets
and liabilities of the Company referred to in
Section 12.2 or under the conditions described in
Section 12.3, from making payments at any time of
principal of (and premium, if any) or interest on
the Securities or the purchase, redemption or other
acquisition of the Securities.
Section 12.5 Subrogation to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be
subrogated (equally and ratably with the holders of
all indebtedness of the Company which by its express
terms is subordinated to Senior Indebtedness of the
Company to the same extent as the Securities are
subordinated and which is entitled to like rights of
subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and
distributions of cash, property and securities
applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the
Securities or the Trustee would be entitled except
for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 12.6 Provisions Solely to Define
Relative Rights.
The provisions of this Article are and are intended
solely for the purpose of defining the relative
rights of the Holders of the Securities on the one
hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the
Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and
unconditional, to pay to the holders of the
Securities the principal of (and premium, if any)
and interest on the Securities as and when the same
shall become due and payable in accordance with
their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities
and creditors of the Company other than the holders
of Senior Indebtedness; or c prevent the Trustee or
the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the express
limitations set forth in Article V and to the
rights, if any, under this Article of the holders of
Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other
marshaling of assets and liabilities of the Company
referred to in Section 12.2, to receive, pursuant to
and in accordance with such Section, cash, property
and securities otherwise payable or deliverable to
the Trustee or such Holder, or (2) under the
conditions specified in Section 12.3, to prevent any
payment prohibited by such Section.
Section 12.7 Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate
to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
Section 12.8 No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure
to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms,
provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or
the Holders of the Securities, without Incurring
responsibility to the Holders of the Securities and
without impairing or releasing the subordination
provided in this Article or the obligations
hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more
of the following: (a) change the manner, place or
terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (b)
sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing
Senior Indebtedness; c release any Person liable in
any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company and any
other Person.
Section 12.9 Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the
Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have
received written notice thereof from the Company or
a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.1, shall be
entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in
this Section at least three Business Days prior to
the date upon which by the terms hereof any money
may become payable for any purpose (including,
without limitation, the payment of the principal of
(and premium, if any) or interest on any Security),
then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the
same to the purpose for which such money was
received and shall not be affected by any notice to
the contrary which may be received by it within
three Business Days prior to such date.
Subject to the provisions of Section 6.1, the
Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish
that such notice has been given by a holder of
Senior Indebtedness (or a trustee, fiduciary or
agent therefor). In the event that the Trustee
determines in good faith that further evidence is
required with respect to the right of any Person as
a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this
Article, the Trustee may request that such Person
furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person
is entitled to participate in such payment or
distribution and any other facts pertinent to the
rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial
determination as to the right of such Person to
receive such payment.
Section 12.10 Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any amount or distribution of assets of the
Company referred to in this Article, the Trustee,
subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of
competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of
the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 12.11 Rights of Trustee as a Holder of
Senior Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6.
Section 12.12 Article Applicable to Paying Agents.
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 shall in such case (unless the
context otherwise requires) be construed as
extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
however, that Section 12.11 shall not apply to the
Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
ARTICLE XIII
DEFEASANCE
Section 13.1 Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may, at its option by Board Resolution,
at any time, with respect to the Securities, elect
to have either Section 13.2 or 13.3 be applied to
all Outstanding Securities upon compliance with the
conditions set forth in this Article XIII.
Section 13.2 Defeasance and Discharge.
Upon the Company's exercise under Section 13.1 of
the option applicable to this Section 13.2, the
Company and any Guarantor shall be deemed to have
been discharged from their obligations with respect
to all Outstanding Securities on the date the
conditions set forth in Section 13.4 are satisfied
(hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness
represented by the Outstanding Securities, which
shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 13.3 and the other
Sections of this Indenture referred to in (A) and
(B) below, and to have satisfied all its other
obligations under such Securities 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
which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive solely from the
trust fund described in Section 13.2 and as more
fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and
interest on such Securities when such payments are
due, (B) the Company's obligations with respect to
such Securities under Sections 3.4. 3.5, 3.6, 10.2
and 10.3, c the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the
Company_s obligations in connection therewith and
(D) this Article XIII. Subject to compliance with
this Article XIII, the Company may exercise its
option under this Section 13.2 notwithstanding the
prior exercise of its option under Section 13.3 with
respect to the Securities.
Section 13.3 Covenant Defeasance.
Upon the Company's exercise under Section 13.1 of
the option applicable to this Section 13.3, the
Company shall be released from its obligations under
any covenant contained in Section 8.1 and in
Sections 10.6 through 10.18 with respect to the
Outstanding Securities on and after the date the
conditions set forth in Section 13.4 are satisfied
(hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction,
waiver, consent, 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 and
Holders of the Securities and the Guarantees and any
amounts deposited under Section 13.4 shall cease to
be subject to any obligations to, or the rights of,
any holder of Senior Indebtedness under Article XII,
Article XIV or otherwise. For this purpose, such
covenant defeasance means that, with respect to the
Outstanding Securities, the Company and any
Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or
limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason
of any reference in any such covenant to any other
provision herein or in any other document and such
omission to comply shall not constitute a Default or
an Event of Default under Section 5.1c, but, except
as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby. In
addition, upon the Company's exercise under Section
13.1 of the option applicable to this Section 13.3,
Sections 5.1(f) and (g) shall not constitute
Defaults or Events of Default.
Section 13.4 Conditions to Defeasance.
The following shall be the conditions to application
of Section 13.1 and 13.2 or 13.3 to the Outstanding
Securities:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or
another trustee satisfying the requirements of
Section 6.8 who shall agree to comply with the
provisions of this Article XIII applicable to
it) as trust funds in trust for the purpose of
making the following payments, specifically
pledged as security for, and dedicated solely
to, the benefit of the Holders of such
Securities, (A) cash in U.S. Dollars in an
amount, (B) U.S. Government Obligations which
through the scheduled payment of principal and
interest in respect thereof in accordance with
their terms will provide, not later than one
day before the due date of any payment, cash in
U.S. Dollars in an amount, or c a combination
thereof, in such amounts as will be sufficient,
in the opinion of a nationally recognized firm
of independent public accountants expressed in
a written certification thereof delivered to
the Trustee, to pay and discharge and which
shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge the
principal of (and premium, if any) and interest
on the Outstanding Securities on the Stated
Maturity of such principal or installment of
principal (and premium, if any) or interest on
the day on which such payments are due and
payable in accordance with the terms of this
Indenture and of such Securities; provided that
the Trustee shall have been irrevocably
instructed to apply such money or the proceeds
of such U.S. Government Obligations to said
payments with respect to the Securities.
Before such a deposit, the Company may give to
the Trustee, in accordance with Section 11.3
hereof, a notice of its election to redeem all
of the Outstanding Securities at a future date
in accordance with Article XI, which notice
shall be irrevocable. For this purpose, "U.S.
Government Obligations" means securities that
are (x) direct obligations of the United States
of America for the timely payment of which its
full faith and credit is pledged or (y)
obligations of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of America
the timely payment of which is unconditionally
guaranteed as a full faith and credit
obligation by the United States of America,
which, in either case, are not callable or
redeemable at the option of the issuer thereof;
(2) The Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that (x)
the Company has received from, or there has
been published by, the Internal Revenue Service
a ruling or (y) since the date hereof there has
been a change in the applicable federal income
tax law, in either case to the effect that, and
based thereon such opinion shall confirm that,
the Holders of the Outstanding Securities will
not recognize income, gain or loss for federal
income tax purposes as a result of such
defeasance and will be subject to federal
income tax on the same amounts, in the same
manner and at the same times as would have been
the case if such defeasance had not occurred;
(3) No Default or Event of Default with respect to
the Securities shall have occurred and be
continuing on the date of such deposit or,
insofar as Subsection 5.1(f) or 5.1(g) is
concerned, at any time during the period ending
on the 93rd day after the date of such deposit
(it being understood that this condition shall
not be deemed satisfied until the expiration of
such period);
(4) Such defeasance shall not result in a breach or
violation of, or constitute a default under,
this Indenture (including, without limitation,
the provisions of Article XII) or any other
material agreement or instrument to which the
Company is a party or by which it is bound (and
in that connection, the Trustee shall have
received a certificate from the [Agent Bank]
under the Credit Agreement to that effect with
respect to the Credit Agreement if then in
effect);
(5) The Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that:
(i) the irrevocable deposit of the trust funds
with the Trustee pursuant to Section 13.2(1)
will not constitute a transfer of property of
the Company or such other depositor voidable as
a fraudulent transfer or conveyance under
Sections 544(b) and 548 of the Federal
Bankruptcy Code, or any successor to such
Sections, or under Sections 273, 274, 275 and
276 of the New York Debtor and Creditor Law or
any successor to such Sections;
(ii) the irrevocable deposit of the trust funds
with the Trustee pursuant to Section 13.2(1)
will not constitute a transfer of property of
the Company or such other depositor voidable as
a preference under Section 547 of the Federal
Bankruptcy Code, or any successor to such
Section, in the event that after the passage of
a period of 93 days following such deposit a
voluntary or involuntary case under the Federal
Bankruptcy Code is commenced by or against the
Company or such other depositor; and
(iii) for so long as the trust funds are held
in trust by the Trustee pursuant to Section
13.2(1) for the benefit of the Holders, the
trust funds will not be considered assets of
the Company or such other depositor which may
be used to satisfy claims of creditors of the
Company or such other depositor in the event
that a voluntary or involuntary case under
the Federal Bankruptcy Code is commenced by
or against the Company or such other
depositor after the passage of a period of 93
days following the irrevocable deposit by the
Company or such other depositor of the trust
funds with the Trustee;
(6) 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 defeating,
hindering, delaying or defrauding any
actual creditors of the Company; and
(7) The Company shall have delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent provided for relating
to the defeasance under Section 13.2, or
the covenant defeasance under Section 13.3
(as the case may be) have been complied
with.
Section 13.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of
Section 10.3, all money and U.S. Government
Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section
13.5, the "Trustee") pursuant to Section 13.4 in
respect of the Outstanding Securities shall be held
in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this
Indenture, to the payment, either directly or
through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all
sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but
such money need not be segregated from other funds
except to the extent required by law. Money and
U.S. Government Obligations so held in trust are not
subject to Article XII.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or
assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 13.4 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 Securities.
Section 13.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply
any money in accordance with Section 13.5 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
Securities shall be revived and reinstated as though
no deposit had occurred pursuant to Section 13.2 or
Section 13.3, as the case may be, until such time as
the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 13.5;
provided, however, that, if the Company makes any
payment of principal of (or premium, if any) or
interest on any Security following the reinstatement
of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to
receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE XIV.
GUARANTEE OF SECURITIES
Section 14.1 Guarantee.
Subject to the provisions of this Article XIV, each
Guarantor hereby irrevocably and unconditionally
guarantees, as a primary obligor and not a surety,
to each Holder of a Security now or hereafter
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 Securities or obligations of the
Company hereunder or thereunder, the due and
punctual payment of the principal of, premium (if
any), interest (including post-petition interest in
any proceeding under any bankruptcy law whether or
not permitted thereby) and interest (including post-
petition interest in any proceeding under any
Bankruptcy Law to the full extent permitted thereby)
on overdue principal and interest, if any, if lawful
on such Security and all other Obligations payable
by the Company under this Indenture and the
Securities, when and as the same shall become due
and payable, whether by acceleration thereof, call
for redemption or otherwise (including amounts that
would become due but for the operation of the
automatic stay under Section 362(a) of the Federal
Bankruptcy Code), in accordance with the terms of
any such Security and of this Indenture. Each
Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any
failure to enforce the provisions of any such
Security or this Indenture, any waiver, modification
or indulgence granted to the Company with respect
thereto, by the Holder or the Trustee, or any other
circumstances which may otherwise constitute a legal
or equitable discharge of a surety or guarantor.
Each Guarantor hereby waives diligence, presentment,
filing of claims with a court in the event of a
merger or bankruptcy of the Company, any right to
require a proceeding first against the Company, the
benefit of discussion, protest or notice with
respect to any such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and
covenants that this Guarantee shall not be
discharged as to any such Security except by payment
in full of the principal thereof, premium (if any),
all accrued interest thereon and all other
Obligations.
Each Guarantor shall be subrogated to all rights of
the Holders against the Company in respect of any
amounts paid to the Holders by such Guarantor
pursuant to the provisions of this Guarantee;
provided, however, that no Guarantor shall be
entitled to enforce, or to receive any payments
arising out of or based upon, such right of
subrogation until the principal of, premium (if any)
and interest on all of the Securities, all amounts
payable to the Trustee hereunder and all other
Obligations payable by the Company under this
Indenture and the Securities shall have been paid in
full.
No stockholder, officer, director, employer or
incorporator, past, present or future, of any
Guarantor, as such, shall have any personal
liability under this Guarantee by reason of his, her
or its status as such stockholder, officer,
director, employer or incorporator.
The Guarantee set forth in this Section 14.1 shall
not be valid or become obligatory for any purpose
with respect to a Security until the certificate of
authentication on such Security shall have been
signed by or on behalf of the Trustee.
Section 14.2 Execution and Delivery of Guarantee.
(a) To evidence its Guarantee set forth in
this Article XIV, each Guarantor hereby agrees
that a notation of such Guarantee, as
applicable, shall be placed on each Security
authenticated and delivered by the Trustee on
or after the date such Guarantor became a
Guarantor.
(b) Each Subsidiary required to become a
Subsidiary Guarantor hereunder pursuant to the
provisions of Section 10.18 shall execute and
deliver to the Trustee (i) a supplemental
indenture in form and substance satisfactory to
the Trustee, which subjects such person to the
provisions of this Indenture, as Guarantor and
(ii) an Opinion of Counsel to the effect that
such supplemental indenture has been duly
authorized and executed by such Subsidiary.
(c) This Indenture and the Parent Guarantee
shall be executed on behalf of Holding. Any
supplemental indenture and Subsidiary Guarantee
executed pursuant to the immediately preceding
clause (b) shall be executed on behalf of a
Subsidiary Guarantor by the Chairman of the
Board, the President or any Vice President of
Holding, or such Subsidiary Guarantor, as
applicable. If an Officer whose signature is
on this Indenture no longer holds that office
at the time the Trustee authenticates the
Security on which a Guarantee is endorsed, the
Guarantee shall be valid nevertheless. Each
Guarantor hereby agrees that the Guarantee set
forth in Section 14.1 shall remain in full
force and effect notwithstanding any failure to
endorse on each Security a notation of the
Guarantee.
(d) The delivery of any Security by the
Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the
Guarantee or Guarantees, as applicable, set
forth in this Indenture on behalf of the
Guarantor or Guarantors.
Section 14.3 Limitation of Guarantor's Liability.
Each Guarantor hereby confirms that it is its
intention that its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of
any bankruptcy law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate
the foregoing intention, each Guarantor hereby
irrevocably agrees that the obligations under its
Guarantee shall be limited to the maximum amount as
will, after giving effect to such maximum amount and
all other (contingent or otherwise) liabilities of
such Guarantor that are relevant under such laws,
and after giving effect to any rights to
contribution pursuant to any agreement providing for
an equitable contribution among each Guarantor and
other Affiliates of the Company of payments made by
guarantees by such parties, such maximum amount
shall result in the obligations of each Guarantor in
respect of such maximum amount not constituting a
fraudulent transfer or conveyance.
Section 14.4 Guarantee Unconditional, etc.
Upon failure of payment when due of any amount so
guaranteed for whatever reason, each Guarantor will
be obligated to pay the same immediately. Each
Guarantor hereby agrees that its obligations
hereunder shall be continuing, absolute and
unconditional, irrespective of any of the following:
the recovery of any judgment against the Company or
any Guarantor, any extension, renewal, settlement,
compromise, waiver or release in respect of any
obligation of the Company under this Indenture or
any Security, by operation of law or otherwise; any
modification or amendment of or supplement to this
Indenture or any Security; any change in the
corporate existence, structure or ownership of the
Company, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting
the Company or its assets or any resulting release
or discharge of any obligation of the Company
contained in this Indenture or any Security; the
existence of any claim, set-off or other rights
which such Guarantor may have at any time against
the Company, the Trustee, any Holder or any other
Person, whether in connection herewith or any
unrelated transactions; provided that nothing herein
shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim; any
invalidity or unenforceability relating to or
against the Company for any reason of this Indenture
or any Security, or any provision of applicable law
or regulation purporting to prohibit the payment by
the Company of the principal of or interest on any
Security or any other amount payable by the Company
under this Indenture; or any other act or omission
to act or delay of any kind by the Company, the
Trustee, any Holder or any other Person or any other
circumstance whatsoever which might, but for the
provisions of this paragraph, constitutes a legal or
equitable discharge of such Guarantor's obligations
hereunder. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims
with a court in the event of insolvency or
bankruptcy of the Company, any right to require a
proceeding first against the Company, protest,
notice and all demand whatsoever and covenants that
this Guarantee will not be discharged except by the
complete performance of the obligations contained in
the Securities, this Indenture and in this Article
XIV. The Guarantor's obligations hereunder shall
remain in full force and effect until the Indenture
shall have terminated and the principal of, premium
(if any) and interest on the Securities and all
other Obligations payable by the Company under this
Indenture and the Securities shall have been paid in
full. If at any time any payment of the principal
of or interest on any Security or any other amount
payable by the Company under this Indenture or any
document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, such
Guarantor_s obligations hereunder with respect to
such payment shall be reinstated as though such
payment had been due but not made at such time, and
this Article XIV, to the extent theretofore
discharged, shall be reinstated in full force and
effect. Each Guarantor further agrees that, as
between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI for the
purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing
such acceleration in respect of the obligations
guaranteed hereby and (ii) in the event of any
declaration of acceleration of such obligations as
provided in Article VI, such obligations (whether of
not due and payable) shall forthwith become due and
payable by such Guarantor for the purpose of this
Article XIV. If at any time there is more than one
Guarantor, the obligation of each such Guarantor
hereunder shall be joint and several.
Section 14.5 Covenant of Holding.
The Guarantor will not engage in any type of
business activity other than: (i) maintenance of
its corporate existence and compliance with
applicable law, (ii) the issuance of equity
interests to any Person, (iii) the issuance of debt
securities or the borrowing of money unsecured by
any assets of the Guarantor, (iv) this Guarantee,
(v) any guarantee of any obligation of the Company
or any of its Subsidiaries not otherwise prohibited
by the Indenture, including without limitation, any
guarantee of the obligations under the Credit
Agreement; provided that any such guarantee is not
secured by any assets of the Guarantor, (vi) the
registration of any of its securities under the
Securities Act, the Exchange Act, or any state or
local securities law, (vii) the listing of any
securities with any securities exchange, any
interdealer quotation system or the National
Association of Securities Dealers, Inc. or its
successor, (vii) the ownership and disposition of
the Capital Stock of the Company, (ix) accounting,
legal, public relations, investor relations,
financial or management activities (including the
employment of employees, counsel, accountants,
consultants, bankers, advisors or other
professionals) in connection with, or which are
reasonably incidental to, any of the foregoing
activities, (x) merging with the Company or (xi)
activities in connection with, required by, or
reasonably incidental to, any of the foregoing.
This Section shall not apply to any Subsidiary
Guarantor.
Section 14.6 Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness.
Each Guarantor covenants and agrees, and each Holder
of a Security, by his acceptance thereof, likewise
covenants and agrees, for the benefit of the
holders, from time to time, of Guarantor Senior
Indebtedness that, to the extent and in the manner
hereinafter set forth in this Article, the
Indebtedness represented by the Guarantee and all
payments pursuant to the Guarantee made by or on
behalf of such Guarantor are hereby expressly made
subordinate and subject in right of payment as
provided in this Article to the prior payment in
full in cash or Cash Equivalents of all Guarantor
Senior Indebtedness of such Guarantor; provided,
however, that the Guarantee, the Indebtedness
represented thereby and all payments pursuant to the
Guarantee made by or on behalf of such Guarantor in
all respects shall rank prior to all future
Subordinated Indebtedness.
Section 14.7 Payment over of Proceeds upon
Dissolution, etc., of a Guarantor.
In the event of (a) any insolvency or bankruptcy
case or proceeding, or any receivership,
liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any
Guarantor or its assets, or (b) any liquidation,
dissolution or other winding up of any Guarantor,
whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or c any
assignment for the benefit of creditors or any other
marshaling of assets or liabilities of any
Guarantor, then and in any such event
(1) the holders of Guarantor Senior
Indebtedness of such Guarantor shall be
entitled to receive payment in full in cash or
Cash Equivalents of all amounts due on or in
respect of all Guarantor Senior Indebtedness,
or provision shall be made for such payment in
cash or Cash Equivalents, before the Holders of
the Securities are entitled to receive any
payment or distribution of any kind or
character by and on behalf of such Guarantor
(other than any payment or distribution in the
form of the Permitted Junior Securities of such
Guarantor); and
(2) any payment or distribution of assets of
such Guarantor of any kind or character,
whether in cash, property or securities (other
than a payment or distribution in the form of
Permitted Junior Securities of such Guarantor),
by set-off or otherwise, to which the Holders
or the Trustee would be entitled but for the
provisions of this Article shall be paid by the
liquidating trustee or agent or other person
making such payment or distribution, whether a
trustee in bankruptcy or liquidating trustee or
otherwise, directly to the holders of Guarantor
Senior Indebtedness of such Guarantor or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any of such
Guarantor Senior Indebtedness may have been
issued, ratably according to the aggregate
amounts remaining unpaid on account of the
Guarantor Senior Indebtedness held or
represented by each, to the extent necessary to
make payment in full in cash or Cash
Equivalents of all Guarantor Senior
Indebtedness remaining unpaid, after giving
effect to any concurrent payment or
distribution to the holders of such Guarantor
Senior Indebtedness; and
(3) in the event that, notwithstanding the
foregoing provisions of this Section, the
Trustee or the Holder of any Security shall
have received any payment or distribution of
assets of such Guarantor of any kind or
character, whether in cash, property or
securities, in respect of the Guarantor Senior
Subordinated Note Obligations before all
Guarantor Senior Indebtedness is paid in full
in cash or Cash Equivalents or payment thereof
provided for, then and in such event such
payment or distribution (other than a payment
or distribution in the form of Permitted Junior
Securities of such Guarantor) shall be paid
over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person
making payment or distribution of assets of
such Guarantor for application to the payment
of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to pay all
Guarantor Senior Indebtedness in full in cash
or Cash Equivalents, after giving effect to any
concurrent payment or distribution to or for
the holders of Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the
merger of any Guarantor into, another person or
the liquidation or dissolution of any Guarantor
following the conveyance, transfer or lease of
its properties and assets substantially as an
entirety to another person upon the terms and
conditions set forth in Article Eight shall not
be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets
and liabilities of the Guarantor for the
purposes of this Section if the person formed
by such consolidation or into which such
Guarantor is merged or the person which
acquires by conveyance, transfer or lease such
properties and assets substantially as an
entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions
set forth in Article Eight.
Section 14.8 Suspension of Guarantee Obligations
When Senior Indebtedness in Default.
(a) Upon (1) the occurrence of a Payment
Default and (2) receipt by the Trustee of
written notice of such occurrence, then no
payment or distribution of any assets of any
Guarantor of any kind or character shall be
made by such Guarantor on account of the
Guarantor Senior Subordinated Note
Obligations or on account of the purchase or
redemption or other acquisition of Securities
or Guarantee of such Guarantor unless and
until such Payment Default shall have been
cured or waived in writing or shall have
ceased to exist or the Senior Indebtedness as
to which such Payment Default relates shall
have been discharged or paid in full in cash
or Cash Equivalents, after which such
Guarantor shall resume making any and all
required payments in respect of the
Guarantee, including any missed payments.
(b) During the Payment Blockage Period in
respect of the Securities, no payment or
distribution of any assets of any Guarantor
of any kind or character shall be made by
such Guarantor on account of the Guarantor
Senior Subordinated Note Obligations or on
account of the purchase or redemption or
other acquisition of Securities or Guarantee
of such Guarantor; provided, however, that
the foregoing prohibition shall not apply
unless such Payment Blockage Period has been
instituted under Section 12.3(ii) by the
representative of holders of Specified Senior
Indebtedness which also constitutes Guarantor
Senior Indebtedness. Upon the termination of
any Payment Blockage Period, subject to
Section 14.7 and Section 14.8(a) (if
applicable), such Guarantor shall resume
making any and all required payments in
respect of its obligations under this
Guarantee.
(c) In the event that, notwithstanding the
foregoing, any Guarantor shall make any
payment to the Trustee or the Holder of any
Security prohibited by the foregoing
provisions of this Section, then and in such
event such payment shall be paid over and
delivered forthwith to such Guarantor.
Section 14.9 Subrogation to Rights of Holders of
Guarantor Senior Indebtedness.
Subject to the payment in full in cash or Cash
Equivalents of all Guarantor Senior Indebtedness of
the Guarantors and all Senior Indebtedness of the
Company, the Holders of the Securities shall be
subrogated to the rights of the holders of such
Guarantor Senior Indebtedness of the Guarantors to
receive payments and distributions of cash, property
and securities of a Guarantor applicable to such
Guarantor Senior Indebtedness of the Guarantors
until all amounts due under the Guarantee of such
Guarantor shall be paid in full. For purposes of
such subrogation, no payments or distributions to
the holders of Guarantor Senior Indebtedness of any
cash, property or securities of such Guarantor to
which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this
Article, and no payments over pursuant to the
provisions of this Article to the holders of
Guarantor Senior Indebtedness of the Guarantors by
Holders of the Securities or the Trustee, shall, as
among such Guarantor, its creditors other than
holders of Guarantor Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment
or distribution by such Guarantor to or on account
of the Guarantor Senior Indebtedness.
Section 14.10 Guarantor Provisions Solely to
Define Relative Rights.
The subordination provisions of this Article are and
are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on
the one hand and the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent
set forth in Section 14.8, holders of Guarantor
Senior Indebtedness on the other hand. Nothing
contained in this Article (other than a release
pursuant to Section 14.13) or elsewhere in this
Indenture or in the Securities is intended to or
shall (a) impair, as between each Guarantor and the
Holders of the Securities, the obligations under the
Guarantee as and when the same shall become due and
payable in accordance with their terms; or (b)
affect the relative rights against such Guarantor of
the Holders of the Securities and creditors of such
Guarantor other than the holders of Guarantor Senior
Indebtedness of such Guarantor; or (c) prevent the
Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture,
subject to the express limitations set forth in
Article Five and the rights, if any, under this
Article of the holders of Guarantor Senior
Indebtedness of the Guarantors hereunder and, to the
extent set forth in Section 14.8, holders of
Designated Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors
or other marshaling of assets and liabilities of the
Guarantor referred to in Section 14.7, to receive,
pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2)
under the conditions specified in Section 14.8, to
prevent any payment prohibited by such Section or
enforce their rights pursuant to Section 14.8c.
The failure by any Guarantor to make a payment in
respect of its obligations under this Guarantee by
reason of any provision of this Article shall not be
construed as preventing the occurrence of a Default
or an Event of Default hereunder.
Section 14.11 Trustee to Effectuate Subordination
of Guarantee Obligations.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate
to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
Section 14.12 No Waiver of Guarantee Subordination
Provisions.
(a) No right of any present or future holder
of any Guarantor Senior Indebtedness of any
Guarantor to enforce subordination as herein
provided shall at any time in any way be
prejudiced or impaired by any act or failure
to act on the part of the Company or any
Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any non-
compliance by the Company or any Guarantor
with the terms, provisions and covenants of
this Indenture, regardless of any knowledge
thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of
subsection (a) of this Section 14.12, the
holders of Guarantor Senior Indebtedness of
any Guarantor may, at any time and from time
to time, without the consent of or notice to
the Trustee or the Holders of the Securities,
without incurring responsibility to the
Holders of the Securities and without
impairing or releasing the subordination
provided in this Article Fourteen or the
obligations hereunder of the Holders of the
Securities to the holders of such Guarantor
Senior Indebtedness, do any one or more of
the following: (1) change the manner, place
or terms of payment or extend the time of
payment of or renew or alter, such Guarantor
Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor
Senior Indebtedness relates or any instrument
evidencing the same or any agreement under
which such Guarantor Senior Indebtedness or
such Senior Indebtedness is outstanding; (2)
sell, exchange, release or otherwise deal
with any property pledged, mortgaged or
otherwise securing such Guarantor Senior
Indebtedness or any Senior Indebtedness as to
which such Guarantor Senior Indebtedness
relates; (3) release any person liable in any
manner for the collection or payment of such
Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor
Senior Indebtedness relates; and (4) exercise
or refrain from exercising any rights against
such Guarantor and any other person.
Section 14.13 Release of a Guarantor.
(a) Notwithstanding anything to the contrary
contained in this Indenture, in the event
that a Guarantor is released from all
obligations which pursuant to Section 10.18
obligate it to become a Guarantor, such
Guarantor shall be released from all
obligations under its Guarantee (provided
that the provisions of Section 10.18 shall
apply anew in the event that such Guarantor
subsequent to being released incurs any
obligations that pursuant to Section 10.18
obligate it to become a Guarantor).
(b) In addition, except in the case where
the prohibition on transfer in Section 8.1 is
applicable, upon the sale or disposition of
all of the Capital Stock of a Guarantor by
the Company or a Subsidiary, or upon the
consolidation or merger of a Guarantor with
or into any person (in each case, other than
to the Company or an Affiliate of the
Company), such Guarantor shall be deemed
automatically and unconditionally released
and discharged from all obligations under
this Article without any further action
required on the part of the Trustee or any
Holder, and all obligations of such
Guarantor, if any, in respect of any Senior
Indebtedness shall also terminate upon such
transaction; provided, however, that each
such Guarantor is sold or disposed of in
accordance with Section 10.16; and provided
further that the foregoing proviso shall not
apply to the sale or disposition of a
Guarantor in a foreclosure to the extent that
such proviso would be inconsistent with the
requirements of the Uniform Commercial Code.
(c) The Trustee shall deliver an appropriate
instrument evidencing the release of a
Guarantor upon receipt of a request of the
Company accompanied by an Officers'
Certificate certifying as to the compliance
with this Section 14.13. Any Guarantor not
so released or the entity surviving such
Guarantor, as applicable, shall remain or be
liable under its Guarantee as provided in
this Article.
The Trustee shall execute any documents reasonably
requested by the Company or a Guarantor in order to
evidence the release of such Guarantor from its
obligations under its Guarantee endorsed on the
Securities and under this Article.
Except as set forth in Articles VII and X and this
Section 14.13, nothing contained in the Indenture or
in any of the Securities shall prevent any
consolidation or merger of a Guarantor with or into
the Company or another Guarantor or shall prevent
any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
* * * * *
This Indenture may be signed in any number of
counterparts with the same effect as if the
signatures to each counterpart were upon a single
instrument, and all such counterparts together shall
be deemed an original of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above
written.
HOMELAND STORES, INC.
Attest:_________________ By_____________________
Title: Title:
HOMELAND HOLDING CORPORATION
Attest:_________________ By_____________________
Title: Title:
FLEET NATIONAL BANK
Attest:_________________ By_____________________
Title: Assistant Vice President
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of __________, 1996, before me
personally came _________________, to me known, who,
being by me duly sworn, did depose and say that s/he
resides at
_________________________________________________;
that s/he is _______________ of HOMELAND STORES,
INC., one of the corporations described in and which
executed the above instrument; that s/he knows the
corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the
Board of Directors of such corporation; and that
s/he signed her/his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_____________________
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of __________, 1996, before me
personally came _________________, to me known, who,
being by me duly sworn, did depose and say that s/he
resides at
_________________________________________________;
that s/he is _______________ of HOMELAND HOLDING
CORPORATION, one of the corporations described in
and which executed the above instrument; that s/he
knows the corporate seal of such corporation; that
the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to
authority of the Board of Directors of such
corporation; and that s/he signed her/his name
thereto pursuant to like authority.
(NOTARIAL SEAL)
______________________
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the _____ day of __________, 1996, before me
personally came _________________, to me known, who,
being by me duly sworn, did depose and say that s/he
resides at
_________________________________________________;
that s/he is _______________ of UNITED STATES TRUST
COMPANY OF NEW YORK, one of the corporations
described in and which executed the above
instrument; that s/he knows the corporate seal of
such corporation; that the seal affixed to said
instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of
Directors of such corporation; and that s/he signed
her/his name thereto pursuant to like authority.
(NOTARIAL SEAL)
_________________________
Notary Public
