Exhibit 4.1
RITE AID CORPORATION
as Issuer
TO
STATE STREET BANK AND
TRUST COMPANY
as Trustee
--------------------------
Indenture
Dated as of June 14, 2000
--------------------------
$467,500,000 10.50% Senior Secured Notes due 2002
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture dated as of June 14, 2000
Trust Indenture Indenture
Act Section Section
----------- -------
310
(a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08
6.10
311
(a) 6.13
(b) 6.13
(b)(2) 7.03
312
(a) 7.01
7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313
(a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a)
(d) 7.03(b)
314
(a) 7.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315
(a) 6.01
(b) 6.02
7.03(a)
(c) 6.01
(d) 6.01
(d)(1) 6.03
(d)(2) 6.03
(d)(3) 6.03
(e) 5.14
316
(a)(1)(A) 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.08
317
(a)(1) 5.03
(a)(2) 5.04
(b) 10.03
318
(a) 1.07
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
-----------------
Page
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ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.............................................1
SECTION 1.02. Compliance Certification and Opinions..................21
SECTION 1.03. Form of Documents Delivered To Trustee.................22
SECTION 1.04. Acts of Holders; Record Date...........................23
SECTION 1.05. Notices, Etc., To Trustee and the Company..............24
SECTION 1.06. Notice To Holders; Waiver..............................24
SECTION 1.07. Conflict with Trust Indenture Act......................25
SECTION 1.08. Effect of Headings and Table of Contents...............25
SECTION 1.09. Successors and Assigns.................................25
SECTION 1.10. Separability Clause....................................25
SECTION 1.11. Benefits of Indenture..................................25
SECTION 1.12. Governing Law..........................................25
SECTION 1.13. Legal Holidays.........................................25
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally; Initial Forms of
Exempt Securities.................................26
SECTION 2.02. Form of Face of Security...............................26
ARTICLE III
The Securities
SECTION 3.01. Title and Terms........................................36
SECTION 3.02. Denominations..........................................36
SECTION 3.03. Execution, Authentication, Delivery and
Dating............................................36
SECTION 3.04. Temporary Securities...................................37
SECTION 3.05. Global Securities......................................38
SECTION 3.06. Registration, Registration of Transfer and
Exchange; Restricted Securities Legends...........39
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities........................................42
SECTION 3.08. Payment of Interest; Interest Rights
Preserved.........................................43
SECTION 3.09. Persons Deemed Owners..................................44
SECTION 3.10. Cancellation...........................................44
SECTION 3.11. Computation of Interest................................45
SECTION 3.12. Cusip Numbers..........................................45
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture................45
SECTION 4.02. Application of Trust Money.............................46
ARTICLE V
Remedies
SECTION 5.01. Events of Default......................................47
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment.........................................49
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee............................50
SECTION 5.04. Trustee May File Proofs of Claim.......................51
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities.....................................52
SECTION 5.06. Application of Money Collected.........................52
SECTION 5.07. Limitation on Suits....................................52
SECTION 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest...................53
SECTION 5.09. Restoration of Rights and Remedies.....................53
SECTION 5.10. Rights and Remedies Cumulative.........................53
SECTION 5.11. Delay or Omission Not Waiver...........................54
SECTION 5.12. Control by Holders.....................................54
SECTION 5.13. Waiver of Past Defaults................................54
SECTION 5.14. Undertaking for Costs..................................55
SECTION 5.15. Waiver of Stay or Extension Laws.......................55
SECTION 5.16. Enforcement of Remedies................................55
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities....................55
SECTION 6.02. Notice of Defaults.....................................56
SECTION 6.03. Certain Rights of Trustee..............................56
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities........................................58
SECTION 6.05. May Hold Securities....................................58
SECTION 6.06. Money Held in Trust....................................58
SECTION 6.07. Compensation and Reimbursement.........................58
SECTION 6.08. Disqualification; Conflicting Interest.................59
SECTION 6.09. Corporate Trustee Required; Eligibility................59
SECTION 6.10. Resignation and Removal; Appointment of
Successor.........................................59
SECTION 6.11. Acceptance of Appointment by Successor.................61
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business............................61
SECTION 6.13. Preferential Collection of Claims Against
Company...........................................62
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company To Furnish Trustee Names and Addresses
of Holders........................................62
SECTION 7.02. Preservation of Information; Communications
to Holders........................................62
SECTION 7.03. Reports by Trustee.....................................63
SECTION 7.04. Reports by Company.....................................63
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company and the Subsidiary Guarantors May
Consolidate, Etc., Only on Certain Terms..........63
SECTION 8.02. Successor Substituted..................................66
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders...........................................67
SECTION 9.02. Supplemental Indentures with Consent of
Holders...........................................67
SECTION 9.03. Execution of Supplemental Indentures...................69
SECTION 9.04. Effect of Supplemental Indentures......................69
SECTION 9.05. Conformity with Trust Indenture Act....................69
SECTION 9.06. Reference in Securities to Supplemental
Indentures.......................................69
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest............70
SECTION 10.02. Maintenance of Office or Agency.......................70
SECTION 10.03. Money for Security Payments To Be Held in
Trust............................................70
SECTION 10.04. Corporate Existence...................................72
SECTION 10.05. Maintenance of Properties.............................72
SECTION 10.06. Payment of Taxes and Other Claims.....................72
SECTION 10.07. Insurance.............................................72
SECTION 10.08. Restrictions on Funded Debt of Restricted
Subsidiaries....................................73
SECTION 10.09. Restriction on Sales with Leases Back.................73
SECTION 10.10. Restrictions on Secured Debt..........................74
SECTION 10.11. Restrictions on Impairment of Security
Interest........................................75
SECTION 10.12. Restrictions on Amendments to Collateral
Documents.......................................76
SECTION 10.14. Application of Collateral Proceeds....................76
SECTION 10.15. Restrictions on Permitting Unrestricted
Subsidiaries To Become Restricted
Subsidiaries....................................78
SECTION 10.16. Statement by Officers as to Default...................79
SECTION 10.17. Waiver of Certain Covenants...........................79
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption...................................79
SECTION 11.02. Election To Redeem; Notice To Trustee.................79
SECTION 11.03. Selection by Trustee of Securities To Be
Redeemed........................................80
SECTION 11.04. Notice of Redemption..................................80
SECTION 11.05. Deposit of Redemption Price...........................81
SECTION 11.06. Securities Payable on Redemption Date.................81
SECTION 11.07. Securities Redeemed in Part...........................81
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.01. Company's Option To Effect Defeasance or
Covenant Defeasance.............................82
SECTION 12.02. Defeasance and Discharge..............................82
SECTION 12.03. Covenant Defeasance...................................82
SECTION 12.04. Conditions to Defeasance or Covenant
Defeasance......................................83
SECTION 12.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions..................84
SECTION 12.06. Reinstatement.........................................85
SCHEDULE A Subsidiary Guarantors
INDENTURE, dated as of June 14, 2000, among Rite Aid
Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 30 Hunter Lane, Camp Hill, Pennsylvania, 17011, each of the
Subsidiary Guarantors named herein and State Street Bank and Trust Company,
a Massachusetts trust company, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of $467,500,000
aggregate principal amount of its 10.50% Senior Secured Notes due 2002
(including those notes issued to the SPV pursuant to the terms of the
Forward Commitment Agreement, the "Securities") in substantially the tenor
and amount hereinafter set forth, and to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary (i) to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by
the Company, the valid obligations of the Company and (ii) to make this
Indenture a valid agreement of the Company and the Subsidiary Guarantors,
all in accordance with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. 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 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 generally accepted
accounting principles (whether or not such is indicated herein), and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted as consistently applied by the Company at
the date of such computation; and
(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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security to the extent
applicable to such transaction and as in effect at the time of such
transfer or transaction.
"Attributable Debt" means, as to any particular Sale and
Leaseback Transaction under which the Company or any Restricted Subsidiary
is at the time liable, at any date as of which the amount thereof is to be
determined (i) in the case of any such transaction involving a Capital
Lease, the amount on such date of the Capital Lease Obligation thereunder,
or (ii) in the case of any other such Sale and Leaseback Transaction, the
then present value of the minimum rental obligation under such transaction
during the remaining term thereof (after giving effect to any extensions at
the option of the lessor) computed by discounting the respective rental
payments at the actual interest factor included in such payment, or, if
such interest factor included in such payment, or, if such interest factor
cannot be readily determined, at the rate per annum equal to the rate of
interest on the Securities. The amount of any rental payment required to be
made under any such Sale and Leaseback Transaction not involving a Capital
Lease may exclude amounts required to be paid by the lessee on account of
maintenance and repairs, insurance, taxes, assessments, utilities,
operating and labor costs and similar charges.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Bankruptcy Proceeding" means any proceeding under Title 11 of
the U.S. Code or any other Federal, state or foreign bankruptcy,
insolvency, reorganization, receivership or similar law.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or
a day on which banking institutions in The City of New York, New York,
Hartford, Connecticut or Boston, Massachusetts are authorized or obligated
by law, regulation, executive order or governmental decree to close.
"Capital Lease" means any lease of property which, in
accordance with generally accepted accounting principles, should be
capitalized on the lessee's balance sheet or for which the amount of asset
and liability thereunder as if so capitalized should be disclosed in a note
to such balance sheet; and "Capital Lease Obligation" means the amount of
the liability so capitalized or disclosed (or which should be so disclosed)
in a note in respect of a Capital Lease.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock
or partnership interests or any other participations, rights, warrants,
options or other interests in the nature of an equity interest in such
Person, including preferred stock, but excluding any debt security
convertible or exchangeable into such equity interest.
"Casualty/Condemnation" means any action or proceeding for the
taking of any assets of the Company or its Subsidiaries, or any part
thereof or interest therein, for public or quasi-public use under the power
of eminent domain, by reason of any similar public improvement or
condemnation proceeding.
"Closing Date" means June 14, 2000.
"Collateral" means the Senior Collateral and the Second
Priority Collateral.
"Collateral Documents" means (a) the Senior Collateral
Documents and (b) the Second Priority Collateral Documents.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the
Trustee.
"Consolidated Funded Debt" means the total of all outstanding
Funded Debt of the Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting
principles.
"Consolidated Net Tangible Assets" means (a) the total amount
of assets (less applicable reserves and other properly deductible items)
which under generally accepted accounting principles would be included on a
consolidated balance sheet of the Company and its Restricted Subsidiaries
after deducting therefrom (i) all liabilities and liability items,
including amounts in respect of obligations or guarantees of obligations
under leases, which under generally accepted accounting principles would be
included on such balance sheet, except Funded Debt, capital stock and
surplus, surplus reserves and provisions for deferred income taxes, and
(ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such
consolidated balance sheet, less (b) the amount which would be so included
on such consolidated balance sheet for Investments (less applicable
reserves) (i) made in Unrestricted Subsidiaries or (ii) made in
corporations while they were Unrestricted Subsidiaries but which at the
time of computation are not Subsidiaries of the Company.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee in the City of Hartford, State of Connecticut, at
which at any particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association, company,
limited liability company, joint-stock company, partnership or business
trust.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Depositary" means, with respect to any Securities, a clearing
agency that is registered as such under the Exchange Act and is designated
by the Company to act as Depositary for such Securities (or any successor
securities clearing agency so registered).
"DTC" means The Depository Trust Company, a New York
corporation.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" refers to the Securities Exchange Act of 1934 as
it may be amended and any successor act thereto.
"Exchange Debt Facility" means the Exchange Debt Facility,
dated as of June 14, 2000 (as amended, modified, supplemented or Refinanced
from time to time), among the Company, the banks party thereto and Morgan
Guaranty Trust Company of New York, as administrative agent.
"Exchange Debt Facility Documents" means the collective
reference to the "Loan Documents" as defined in the Exchange Debt Facility.
"Exchange Debt Obligations" means (i) all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company, whether or not
allowed or allowable as a claim in any such proceeding) on any loans made
under the Exchange Debt Facility, (ii) all other amounts payable by the
Company to the Exchange Debt Parties under the Exchange Debt Facility
Documents, and (iii) any renewals or extensions of any of the foregoing;
provided, however, that the principal amount of indebtedness included in
the Exchange Debt Obligations shall not exceed the maximum amount from time
to time permitted to be outstanding by the Intercreditor Agreement as in
effect on the Closing Date.
"Exchange Debt Parties" means all parties to the Exchange Debt
Documents other than the Obligors or any Affiliate thereof, the Senior Bank
Parties and the Representatives, but including the administrative agent
under the Exchange Debt Facility and the beneficiaries of each
indemnification obligation undertaken by the Company or any other Obligor
under any Exchange Debt Facility Document.
"Exchange Note Documents" means the Securities, this Indenture,
the Exchange and Registration Rights Agreement and the Forward Commitment
Agreement.
"Exchange Note Obligations" means (i) all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company, whether or not
allowed or allowable as a claim in any such proceeding) on the Securities
(including Securities issued to the SPV and transferred to Salomon Smith
Barney Inc. and J.P. Morgan Securities Inc. and their respective assignees
and transferees in accordance with the Forward Commitment Agreement), (ii)
all other amounts payable by the Company to the Exchange Note Parties under
the Exchange Note Documents, and (iii) any renewals or extensions of any of
the foregoing.
"Exchange Note Parties" means all parties to the Exchange Note
Documents and the Holders, in each case other than the Obligors or any
Affiliate thereof, the Senior Bank Parties and the Representatives, but
including the Trustee and the beneficiaries of each indemnification
obligation undertaken by the Company or any other Obligor under any
Exchange Note Document.
"Exchange and Registration Rights Agreement" means the Exchange
and Registration Rights Agreement, dated as of June 14, 2000, among the
Company, each of the Subsidiary Guarantors and the Holders from time to
time as provided therein, as such agreement may be amended from time to
time.
"Exchange Offer" means an offer made by the Company pursuant to
the Exchange and Registration Rights Agreement under an effective
registration statement under the Securities Act to exchange securities
substantially identical to Outstanding Securities (except for the
differences provided for herein) for Outstanding Securities.
"Exchange Registration Statement" means a registration
statement of the Company under the Securities Act registering Exchange
Securities for distribution pursuant to the Exchange Offer.
"Exchange Securities" means the Securities issued pursuant to
the Exchange Offer and their Successor Securities.
"Exempt Securities" means the Securities acquired by Holders
from the Company pursuant to either the Section 4(2) Exchange Offer or the
Forward Commitment Agreement.
"Existing Facilities" means
(a) the PCS Facility;
(b) the RCF Facility;
(c) the Finco Facility; and
(d) the Exchange Debt Facility.
"Existing Facilities Documents" means the collective reference
to (i) the PCS Facility Documents, (ii) the RCF Facility Documents, (iii)
the Finco Facility Documents and (iv) the Exchange Debt Facility Documents.
"Existing Facility Obligations" means the PCS Facility
Obligations, the RCF Facility Obligations, the Finco Facility Obligations
and the Exchange Debt Obligations.
"Existing Facility Parties" means the PCS Facility Parties, the
RCF Facility Parties, the Finco Facility Parties and the Exchange Debt
Parties.
"Finco Facility" means the Amendment No. 3 to Note Agreement,
Amendment No. 4 to Guaranty Agreement, Amendment No. 1 to Put Agreement
(the "Omnibus Agreement") dated as of June 14, 2000, relating to the
Adjustable Rate Senior Secured Notes due August 15, 2002 originally issued
by Finco, Inc. and guaranteed by the Company pursuant to separate Note
Agreements dated as of September 30, 1996.
"Finco Facility Documents" means the (i) Guaranty Agreement
dated as of September 30, 1996 pursuant to which the Company guaranteed the
obligations of Finco, Inc. under the Finco Facility; (ii) Put Agreement
dated as of September 30, 1996 entered into by the Company, and (iii)
Security Agreement dated as of September 30, 1996 entered into by Finco,
Inc. and The Prudential Insurance Company of America as the Security Agent
on behalf of the Finco Facility Parties, in each case as amended through
the Closing Date.
"Finco Facility Obligations" means (i) all outstanding
principal amounts under the Finco Facility Documents, (ii) all interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company, whether or not
allowed or allowable as a claim in any such proceeding) on the principal
amounts pursuant to clause (i) of this definition, (iii) any
"Yield-Maintenance Amount" payable in respect of the portion of the Finco
Facility secured pursuant to clauses (i) and (ii) of this definition, (iv)
any renewals or extensions of any of the foregoing and (v) any and all
other amounts payable by the Company in respect of the Finco Facility;
provided, however, that the principal amount of indebtedness included in
the Finco Facility Obligations shall not exceed the maximum amount from
time to time permitted to be outstanding by the Intercreditor Agreement as
in effect on the Closing Date.
"Finco Facility Parties" means The Prudential Insurance Company
of America and Pruco Life Insurance Company and their successors and
assigns as noteholders and purchasers under the Finco Facility Documents
and The Prudential Insurance Company of America, as Security Agent under
the Finco Facility Documents and its successor or assignee.
"Forward Commitment Agreement" means the Forward Commitment
Agreement dated June 14, 2000, among the Company, the SPV, Salomon Smith
Barney Inc. and J.P. Morgan Securities Inc.
"Funded Debt" means any indebtedness for money borrowed,
created, issued, incurred, assumed or guaranteed, whether secured or
unsecured, maturing more than one year after the date of determination
thereof and any indebtedness, regardless of its term, renewable pursuant to
the terms thereof or of a revolving credit or similar agreement effective
for more than one year after the date of the creation of the indebtedness,
which would, in accordance with generally accepted accounting practice, be
classified as funded debt but shall not include:
(a) any indebtedness for the payment, redemption or
satisfaction of which money (or evidences of indebtedness, if
permitted under the instrument creating such indebtedness) in the
necessary amount shall have been deposited in trust with the Trustee
or proper depository either at or before maturity or redemption date
thereof; or
(b) guarantees arising in connection with the sale, discount,
guarantee or pledge of Securities, chattel mortgages, leases,
accounts receivable, trade acceptances and other paper arising, in
the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with,
distributors, dealers or other customers of merchandise, equipment or
services or guarantees other than guarantees of indebtedness for
borrowed money; or
(c) any liability resulting from the capitalization of
lease rentals.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" means (i) all items of indebtedness or liability
(except capital and surplus) which in accordance with generally accepted
accounting principles would be included in determining total liabilities as
shown on the liability side of a balance sheet as at the date as of which
indebtedness is to be determined, (ii) indebtedness secured by any Mortgage
existing on property owned subject to such Mortgage, whether or not the
indebtedness secured thereby shall have been assumed, and (iii) guarantees,
endorsements (other than for purposes of collection) and other contingent
obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in
indebtedness under the preceding clauses (i) or (ii); provided, however,
that any obligations or guarantees of such obligations or guarantees of
obligations in respect of lease rentals, whether or not such obligations or
guarantees of obligations would be included as liabilities on a
consolidated balance sheet of the Company and its Restricted Subsidiaries,
shall not be included in indebtedness.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Intercreditor Agreement" means the Collateral Trust and
Intercreditor Agreement, dated as of June 14, 2000, among the Company, the
Subsidiary Guarantors, the Second Priority Collateral Trustee, the Senior
Collateral Agent and each Second Priority Representative.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Investments" mean and include all investments, whether by
acquisition of stock or indebtedness, or by loan, advance, transfer of
property, capital contribution or otherwise, made by the Company or by any
Restricted Subsidiary, and shall include all guarantees, direct or
indirect, by the Company or any Restricted Subsidiary of any indebtedness
of an Unrestricted Subsidiary which by its term matures 12 months or less
from the time of computation of the amount thereof to the extent not
included as a liability or liability item on the consolidated
balance sheet of the Company and its Restricted Subsidiaries, but shall not
include accounts receivable of the Company or of any Restricted Subsidiary
arising from the sale of merchandise in the ordinary course of business.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or
other similar encumbrance.
"Notice of Default" shall have the meaning specified in Section
5.01(4).
"Obligors" means the Company, the Subsidiary Guarantors and any
other Person who is liable for any of the Secured Obligations.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion in form and
substance reasonably satisfactory to the Trustee, of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Securities" means all Securities other than
Exchange Securities.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) 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; 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;
(iii) Securities which have been transferred pursuant to Section
3.06 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities paid pursuant to Section 3.07;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee actually 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 or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"PCS" means PCS Holding Corporation, a Delaware corporation,
and its successors.
"PCS Excluded Assets" means any (i) Collateral consisting of
assets of PCS or a Subsidiary of PCS, other than PCS Linked Accounts, (ii)
PCS Land and (iii) any proceeds of clauses (i) and (ii).
"PCS Facility" means the PCS Facility, dated as of June 14,
2000 (as amended, modified, supplemented or Refinanced from time to time),
among the Company, the banks party thereto and Morgan Guaranty Trust
Company of New York, as administrative agent.
"PCS Facility Documents" means the "Loan Documents" as defined
in the PCS Facility.
"PCS Facility Obligations" means (i) all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company, whether or not
allowed or allowable as a claim in any such proceeding) on any loan made
under the PCS Facility, (ii) all other amounts payable by the Company under
the PCS Facility Documents and (iii) any renewals or extensions of any of
the foregoing; provided, however, that the principal amount of indebtedness
included in the PCS Facility Obligations shall not exceed the maximum
amount from time to time permitted to be outstanding by the Intercreditor
Agreement as in effect on the Closing Date.
"PCS Facility Parties" means the parties to the PCS Facility
Documents other than the Obligors, the Senior Bank Parties and the
Representatives, but including the administrative agent under the PCS
Facility and the beneficiaries of each indemnification obligation by the
Company or any other Obligor under any PCS Facility Documents.
"PCS Land" means the real property described as N.W. 96th
Street and Mountainview Road, Scottsdale, Arizona together with any
improvements thereon.
"PCS Linked Accounts" means any accounts receivable owned to
PCS by third party insurers in respect of claims generated by other
Subsidiaries of the Company and giving rise to related accounts payable
owed by PCS to such other Subsidiaries of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, 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 3.07 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"RCF Facility" means the Restated Credit Agreement, dated as of
June 14, 2000 (as amended, modified, supplemented or Refinanced from time
to time), among the Company, the banks party thereto and Morgan Guaranty
Trust Company of New York, as administrative agent.
"RCF Facility Documents" means the "Loan Documents" as defined
in the RCF Facility.
"RCF Facility Obligations" means (i) all principal of
and interest (including, without limitation, any interest which
accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Company,
whether or not allowed or allowable as a claim in any such proceeding) on
any loan made under the RCF Facility, (ii) all other amounts payable by the
Company to the RCF Facility Parties under the RCF Facility Documents and
(iii) any renewals or extensions of any of the foregoing; provided,
however, that the principal amount of indebtedness included in the RCF
Facility Obligations shall not exceed the maximum amount from time to time
permitted to be outstanding by the Intercreditor Agreement as in effect on
the Closing Date.
"RCF Facility Parties" means the parties to the RCF Facility
Documents other than the Obligors.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinance" means, in respect of any indebtedness, to
refinance, extend, renew, refund, repay, prepay, repurchase, redeem,
defease or retire, or to issue other indebtedness, in exchange or
replacement for, such indebtedness. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Registration Default" means the occurrence of any of the
following events: (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which
such registration statement is required to be filed pursuant to the
Exchange and Registration Rights Agreement, (ii) the Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective under
the requirements of the Exchange and Registration Rights Agreement, (iii)
the Exchange Offer has not been completed on or before the date required by
the Exchange and Registration Rights Agreement or (iv) any Exchange
Registration Statement or Shelf Registration Statement required to be filed
pursuant the Exchange and Registration Rights Agreement is filed and
declared effective but shall thereafter cease to be effective without being
again effective within 30 days or being succeeded within 30 days by an
additional Exchange Registration Statement or Shelf Registration Statement
filed and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regular Record Date" means the date that is the fifteenth
calendar day (whether or not a Business Day) immediately preceding the
related Interest Payment Date.
"Representatives" means each of the Senior Collateral
Agent and the Second Priority Representatives.
"Responsible Officer", when used with respect to the Trustee,
means any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any trust officer or assistant trust
officer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Global Securities" means all Global Securities
required pursuant to Section 3.06(c) to bear a Restricted Securities
Legend.
"Restricted Securities" means all Securities required pursuant
to Section 3.06(c) to bear a Restricted Securities Legend. Such term
includes the Restricted Global Securities.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in
Section 2.02 to be placed upon a Restricted Security.
"Restricted Subsidiary" means any Subsidiary, whether existing
on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"Sale and Leaseback Transaction" has the meaning specified in
Section 10.09.
"Second Priority Collateral" means all the "Second Priority
Collateral" as defined in any Second Priority Collateral Document and shall
also include the mortgaged properties described in the Senior Credit
Facility and the proceeds thereof, but shall not in any event include the
PCS/Drugstore Pledged Collateral or the Exchange Debt First Priority
Collateral (as each term is defined in the Collateral Documents).
"Second Priority Collateral Documents" means the Second
Priority Mortgages, the Second Priority Subsidiary Security Agreement, the
Second Priority Subsidiary Guarantee Agreement, the Second Priority
Indemnity, Subrogation and Contribution Agreement, the Intercreditor
Agreement and each of the mortgages, security agreements and other
instruments and documents executed and delivered by any Subsidiary
Guarantor pursuant to any of the foregoing for purposes of providing
collateral security or credit support for any Second Priority Debt
Obligation or obligation under the Second Priority Subsidiary Guarantee
Agreement but specifically excluding the Drugstore.com Pledge Agreement,
the Exchange Debt First Priority Collateral Documents and the PCS Pledge
Agreement (as each term is defined in the Collateral Documents).
"Second Priority Collateral Trustee" means Wilmington Trust
Company, in its capacity as collateral trustee under the Intercreditor
Agreement and the Second Priority Collateral Documents, and its successors.
"Second Priority Debt Documents" means the Existing Facility
Documents, the Exchange Note Documents, the Synthetic Lease Documents and
the Second Priority Collateral Documents.
"Second Priority Debt Obligations" means the collective
reference to the Exchange Debt Obligations, the Exchange Note Obligations,
the Synthetic Lease Obligations, the PCS Facility Obligations, the RCF
Facility Obligations and the Finco Facility Obligations.
"Second Priority Debt Parties" means Existing Facility Parties,
the Exchange Note Parties, the Synthetic Lease Parties and the Second
Priority Collateral Trustee.
"Second Priority Facilities" means the Exchange Debt Facility,
this Indenture, the Synthetic Lease Facilities, the PCS Facility, the RCF
Facility and the Finco Facility.
"Second Priority Indemnity, Subrogation and Contribution
Agreement" means the Second Priority Indemnity, Subrogation and
Contribution Agreement, dated as of June 14, 2000, among the Company, the
Subsidiary Guarantors and the Second Priority Collateral Trustee.
"Second Priority Lien" means the liens on the Second Priority
Collateral in favor of the Second Priority Debt Parties under the Second
Priority Collateral Documents.
"Second Priority Mortgages" means the mortgages, deeds of
trust, leasehold mortgages, assignments of leases and rents, modifications
and other security documents which create a lien in favor of the Second
Priority Collateral Trustee for the benefit of the Second Priority Debt
Parties, delivered pursuant to the Second Priority Debt Documents.
"Second Priority Representative" means, in respect of each
Second Priority Facility, the Trustee and the administrative agent or agent
under each other Second Priority Facility and each of their successors in
such capacities.
"Second Priority Subsidiary Guarantee Agreement" means the
Second Priority Subsidiary Guarantee Agreement, dated as of June 14, 2000,
made by the Subsidiary Guarantors (including any additional Subsidiary
Guarantor becoming party thereto after the Closing Date) in favor of the
Second Priority Collateral Trustee for the benefit of the Second Priority
Debt Parties.
"Second Priority Subsidiary Security Agreement" means the
Second Priority Subsidiary Security Agreement, dated as of June 14, 2000,
made by the Subsidiary Guarantors (including any additional Subsidiary
Guarantor becoming party thereto after the Closing Date) in favor of the
Second Priority Collateral Trustee for the benefit of the Second Priority
Debt Parties.
"Section 4(2) Exchange Offer" means the offer made by the
Company pursuant to the Exchange Offer Circular dated April 24, 2000, as
supplemented or amended from time to time, in reliance upon an exemption
from registration under Section 4(2) of the Securities Act to issue the
Securities in exchange for the Company's (a) 5.50% Notes due 2000 and (b)
6.70% Notes due 2001.
"Secured Debt" means indebtedness for money borrowed which is
secured by a mortgage, pledge, lien, security interest or encumbrance on
property of the Company or any Restricted Subsidiary, but shall not include
guarantees arising in connection with the sale, discount, guarantee or
pledge of notes, chattel mortgages, leases, accounts receivable, trade
acceptances and other paper arising, in the ordinary course of business,
out of installment or conditional sales to or by, or transactions involving
title retention with, distributors, dealers or other customers, of
merchandise, equipment or services.
"Secured Obligations" means the Senior Obligations and
the Second Priority Debt Obligations.
"Securities" means Securities designated in the first paragraph
of the RECITALS OF THE COMPANY and includes the Original Securities and the
Exchange Securities.
"Securities Act" means the Securities Act of 1933, as it may be
amended and any successor act thereto.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.06(a).
"Senior Bank" means a "Bank" as defined in the Senior Credit
Facility.
"Senior Bank Obligations" means (i) the principal of each loan
made under the Senior Credit Facility, (ii) all reimbursement and cash
collateralization obligations in respect of letters of credit issued under
the Senior Credit Facility, (iii) all monetary obligations of the Company
or any Subsidiary under each Senior Interest Rate Agreement (as defined in
the Senior Credit Facility) entered into with any counterparty that was a
Senior Bank (or an Affiliate thereof) at the time such Senior Interest Rate
Agreement was entered into, (iv) all interest on the loans, letter of
credit reimbursement and other obligations under the Senior Credit Facility
or such Senior Interest Rate Agreements (including, without limitation) any
interest which accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of
the Company or any Subsidiary Guarantor, whether or not allowed or
allowable as a claim in such proceeding), (v) all other amounts payable by
the Company under the Senior Loan Documents and (vi) all increases,
renewals, extensions and refinancings of the foregoing; provided, however,
that the principal amount of the indebtedness under the Senior Credit
Facility included in the Senior Bank Obligations shall not exceed the
maximum amount from time to time permitted to be outstanding by the
Intercreditor Agreement as in effect on the Closing Date.
"Senior Bank Parties" means each party to the Senior Credit
Facility other than any Obligor, each counterparty to a Senior Interest
Rate Agreement, the beneficiaries of each indemnification obligation
undertaken by the Company or any other Obligor under any Senior Loan
Document, and the successors and permitted assigns of each of the
foregoing.
"Senior Collateral" means all the "Senior Collateral" as
defined in any Senior Collateral Document and shall also include the
mortgaged properties described in the Senior Credit Facility and the
proceeds thereof, but shall not in any event include the PCS/Drugstore
Pledged Collateral and the Exchange Debt First Priority Collateral (as each
term is defined in the Collateral Documents).
"Senior Collateral Agent" means Citicorp USA, Inc., in
its capacity as Senior Collateral Agent under the Senior
Collateral Documents, and its successors.
"Senior Collateral Disposition" means (i) any sale, transfer or
other disposition of Senior Collateral (including any property or assets
that would constitute Senior Collateral but for the release of the Senior
Lien and the Second Priority Lien with respect thereto in connection with
such sale, transfer or other disposition), other than a disposition of PCS
Excluded Assets or a Permitted Disposition (as defined in the Collateral
Documents), or (ii) a Casualty/Condemnation with respect to Senior
Collateral (other than PCS Excluded Assets).
"Senior Collateral Documents" means the Senior Mortgages, the
Senior Subsidiary Security Agreement, the Senior Subsidiary Guarantee
Agreement, the Senior Indemnity, Subrogation and Contribution Agreement,
the Intercreditor Agreement and each of the mortgages, security agreements
and other instruments and documents executed and delivered by any
Subsidiary Guarantor pursuant to any of the foregoing or pursuant to the
Senior Credit Facility or for purposes of providing collateral security or
credit support for any Senior Obligation or obligation under the Senior
Subsidiary Guarantee Agreement.
"Senior Credit Facility" means the Senior Credit Agreement,
dated as of June 14, 2000 (as amended, modified, supplemented or Refinanced
from time to time), among the Company, the Senior Banks, the swingline
banks named therein, the issuing banks named therein, the senior
administrative agent named therein, the Senior Collateral Agent, and the
syndication agents named therein.
"Senior Indemnity, Subrogation and Contribution Agreement"
means the Senior Indemnity, Subrogation and Contribution Agreement, dated
as of June 14, 2000 among the Company, the Subsidiary Guarantors (including
Subsidiary Guarantors becoming party thereto after the Closing Date) and
the Senior Collateral Agent.
"Senior Lien" means the liens on the Senior Collateral in favor
of the Senior Secured Parties under the Senior Collateral Documents.
"Senior Loan Documents" means the Senior Credit Facility, the
Notes referred to in the Senior Credit Facility, each Senior Interest Rate
Agreement, and the Senior Collateral Documents.
"Senior Mortgages" means the mortgages, deeds of trust,
leasehold mortgages, assignments of leases and rents, modifications and
other security documents delivered pursuant to the Senior Credit Agreement.
"Senior Obligations" means (a) the Senior Bank Obligations and
(b) the Independent Standby L/C Obligations (as defined in the Senior
Credit Facility).
"Senior Secured Parties" means (a) the Senior Bank Parties and
(b) the Independent Standby L/C Parties (as defined in the Senior Credit
Facility).
"Senior Subsidiary Guarantee Agreement" means the Senior
Subsidiary Guarantee Agreement, made by the Subsidiary Guarantors
(including Subsidiary Guarantors that become parties thereto after the
Closing Date) in favor of the Senior Collateral Agent for the benefit of
the Senior Bank Parties.
"Senior Subsidiary Security Agreement" means the Senior
Subsidiary Security Agreement, made by the Subsidiary Guarantors
(including Subsidiary Guarantors that become parties thereto
after the Closing Date) in favor of the Senior Collateral Agent for the
benefit of the Senior Secured Parties.
"Shelf Registration Statement" means a shelf registration
statement under the Securities Act filed by the Company, if required by,
and meeting the requirements of, the Exchange and Registration Rights
Agreement, registering Original Securities for resale.
"SPV" means Fiona One Corp., a Delaware corporation and
a wholly-owned Subsidiary of the Company which is organized for
the sole purpose of acquiring Securities on the Closing Date from
the Company and selling such Securities to Salomon Smith Barney
Inc. and J. P. Morgan Securities Inc. in accordance with the
Forward Commitment Agreement.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by Trustee pursuant to Section 3.08.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the final payment of
principal of such Security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon
the happening of any contingency unless such contingency has occurred).
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person or by one or more other
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, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, has at
least a majority ownership and power to direct the policies, management and
affairs thereof.
"Subsidiary Guarantor" means each Subsidiary that is party to
the Senior Subsidiary Guarantee Agreement, the Second Priority Subsidiary
Guarantee Agreement or any other Senior Collateral Document or Second
Priority Collateral Document.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as
that evidenced by, such particular Security; and, for the purpose of this
definition, any Security authenticated and delivered under Section 3.07 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Synthetic Lease Documents" means [the documents governing the
Synthetic Leases].
"Synthetic Lease Facilities" means certain synthetic leases
entered into by Subsidiary Guarantors and guaranteed by the Company having
an aggregate discounted present value of approximately $214,000,000 as
amended and restated as of the Closing Date (as amended, modified,
supplemented or Refinanced from time to time).
"Synthetic Lease Obligations" means all rent and supplemental
rent, all fees and all other expenses or amounts payable by any Obligors to
any Synthetic Lease Parties under any Synthetic Lease Document; provided,
however, that the aggregate amount of the Synthetic Lease Obligations shall
not exceed the maximum amount from time to time permitted to be outstanding
by the Intercreditor Agreement.
"Synthetic Lease Parties" means all parties to the Synthetic
Lease Documents other than the Obligors.
"Triggering Event" means (x) the occurrence of any Event of
Default and, as a result thereof, (A) the acceleration (including any
automatic acceleration in connection with any Bankruptcy Proceeding) of the
principal amount of any Senior Obligations or Second Priority Debt
Obligations under the terms of any Senior Loan Document or any Second
Priority Debt Document or (B) the commencement of the exercise of remedies
in respect of Collateral, and (y) in either case, receipt by the Second
Priority Collateral Trustee of written notice thereof from the Senior
Collateral Agent (in the case of any such Event of Default arising under
the Senior Loan Documents) or receipt by the Senior Collateral Agent and
the Second Priority Collateral Trustee of written notice thereof from any
Second Priority Representative (in the case of any such Event of Default
arising under any Second Priority Debt Document).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 9.05; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"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.
"Unrestricted Subsidiary" means (a) any Subsidiary which, in
accordance with the provisions of this Indenture, has been designated by a
Board Resolution as an Unrestricted Subsidiary, in each case unless and
until such Subsidiary shall, in accordance with the provisions of this
Indenture, be designated by Board Resolution as a Restricted Subsidiary;
and (b) any Subsidiary a majority of the Voting Stock of which shall at the
time be owned directly or indirectly by one or more Unrestricted
Subsidiaries.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
obligation evidenced by such depository receipt or a specific payment of
interest on or principal of any such obligation held by such custodian for
the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the obligation set forth in
(i) or (ii) above or the specific payment of interest on or principal of
such obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly-owned Restricted Subsidiary" means a Restricted
Subsidiary of which at least 99% of the outstanding Voting Stock (other
than directors' qualifying shares) is at the time, directly or indirectly,
owned by the Company, or by one or more Wholly-owned Restricted
Subsidiaries, or by the Company and one or more Wholly-owned Restricted
Subsidiaries.
SECTION 1.02. Compliance Certification and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required by the Trustee
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered To Trustee. In any
case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company 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.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Date. (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 received by the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive
in favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 7.01) prior to such
first solicitation or vote, as the case may be. With regard to any record
date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 1.05. Notices, Etc., To Trustee and the 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,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company or any Subsidiary Guarantor by the Trustee or
by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.06. Notice To Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act, that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the
case may be. Until such time as this Indenture shall be qualified under the
Trust Indenture Act, this Indenture, the Company and the Trustee shall be
deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Indenture
were so qualified on the date hereof.
SECTION 1.08. 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 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or any Subsidiary Guarantor
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities
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 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of 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 Redemption Date, or at the Stated Maturity, as
the case may be, provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally; Initial Forms of Exempt
Securities. The Securities and the Trustee's certificates 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.
Upon their original issuance, the Exempt Securities shall be
issued in the form of one or more Global Securities without interest
coupons registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC, in New York, New York,
for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
Such Global Securities, together with their Successor Securities which are
Global Securities, are collectively herein called the "Restricted Global
Securities".
SECTION 2.02. Form of Face of Security. [If the Security is a
Restricted Security, then insert -- THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. THE HOLDER (I) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY OR THE LAST DATE
ON WHICH THIS SECURITY WAS HELD BY THE COMPANY OR ANY AFFILIATE OF THE
COMPANY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE UNDER RULE 144A, TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY
OTHER EXEMPTION FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT (IF
AVAILABLE); AND (II) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE (UNLESS THIS
CERTIFICATE IS HELD IN GLOBAL FORM) WITHIN TWO YEARS (OR SUCH SHORTER
PERIOD AS MAY BE PRESCRIBED BY RULE 144(k) (OR ANY SUCCESSOR PROVISION)
UNDER THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY OR THE LAST DATE ON WHICH THIS SECURITY WAS HELD BY THE COMPANY OR
ANY AFFILIATE OF THE COMPANY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS SECURITY TO THE TRUSTEE. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY
IN VIOLATION OF THE FOREGOING RESTRICTIONS; AND
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
ISSUER THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN THE ABOVE PARAGRAPH.
THIS SECURITY WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER
UNLESS THE REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS
ON TRANSFER SET FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE
INDENTURE.]
[If the Security is not a Global Security, then insert -- FOR
PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF
SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $________ AND THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IS $__________, IN EACH CASE PER $1000 PRINCIPAL
AMOUNT OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE
ISSUE DATE OF THIS SECURITY IS [GIVE DATE]. FOR PURPOSES OF SECTION 1272 OF
THE CODE, THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS ____%.]
[If the Security is a Global Security, then insert -- THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[If the Security is a Global Security and The Depository Trust
Company is to be the Depositary therefor, then insert -- UNLESS THIS
SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
RITE AID CORPORATION
$___,000,000 10.50% Senior Secured Notes due 2002
No. CUSIP:_________
Rite Aid Corporation, a Delaware corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the principal sum set forth on Schedule A hereof
on September 15, 2002, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on March 15
and September 15 of each year (each, an "Interest Payment Date"), on said
principal sum at a rate of 10.50% per annum, at such office or agency, in
like coin or currency, from the March 15 or September 15, as the case may
be, to which interest on the Securities has been paid preceding the date
hereof (unless the date hereof is a March 15 or a September 15 to which
interest has been paid, in which case from the date hereof, or unless the
date hereof is prior to any interest having been paid, in which case from
June 14, 2000) until payment of said principal sum has been made or duly
provided for. If the Company shall default in the payment of interest when
due on such March 15 or September 15, then this Security shall bear
interest from the next preceding date to which interest has been paid, or,
if no interest has been paid, from June 14, 2000. The interest so payable
on any March 15 or September 15 shall be paid to the person in whose name
this Security shall be registered at the close of business on the fifteenth
calendar day (whether or not a Business Day) immediately preceding the
related Interest Payment Date (each, a "Regular Record Date"). For purposes
of this Security, "Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in The City of New York, New
York, Hartford, Connecticut or Boston, Massachusetts are authorized or
obligated by law, regulation, executive order or governmental decree to be
closed.
If and to the extent the Company shall default in the payment
of the interest due on any interest payment date, such defaulted interest
shall be paid to the person in whose name this Security is registered at
the close of business on a record date established for such payment by
notice by or on behalf of the Company to the holders of the Securities
mailed by first-class mail not less than fifteen days prior to such record
date to their last address as they shall appear upon the Security register,
such record date to be not less than five days preceding the date of
payment of such defaulted interest. The Company may pay interest by check
mailed to the holder's address as it appears on the Security register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this
place.
This Security shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been
executed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed by its duly authorized officers and has caused its corporate seal to
be affixed hereunto.
RITE AID CORPORATION,
By:
--------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee,
Authorized Officer
Form of Reverse of Security
RITE AID CORPORATION
10.50% Senior Secured Notes due 2002
1. Indenture. (a) This Security is the duly authorized issue of
debt securities of the Company (herein referred to as the "Securities"),
all issued or to be issued under and pursuant to an indenture, dated as of
June 14, 2000 (as amended, modified and supplemented from time to time, the
"Indenture"), among the Company, certain Subsidiaries of the Company party
thereto (the "Subsidiary Guarantors") and State Street Bank and Trust
Company, as Trustee (herein referred to as the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company, the Subsidiary
Guarantors and the holders (the words "holders", "holder",
"Securityholders" or "Securityholder" mean the registered holder(s)) of the
Securities.
(b) This Security is the 10.50% Senior Secured Notes due 2002
of the Company and is limited in aggregate principal amount to
$467,500,000.
(c) All capitalized terms used in this Security which are
defined in the Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
2. Optional Redemption. The Securities will be redeemable at
the option of the Company, in whole at any time or in part from time to
time, on at least 30 days but not more than 90 days prior written notice
mailed to the registered holders thereof. Any redemption prior to June 30,
2002 shall be at a redemption price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed and (ii) the sum, as
determined by the Quotation Agent (as defined herein), of the present
values of principal amount of the Securities to be redeemed and the
remaining scheduled payments of interest thereon from the redemption date
to the stated maturity date of such Securities (the "Remaining Life"), in
each case, discounted from their respective scheduled payment dates to the
redemption date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate (as defined herein) plus 75
basis points, plus, in either case, accrued interest thereon to the date of
redemption (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
Any redemption on or after June 30, 2002 shall be at a redemption price
equal to 100% of the principal amount of the Securities to be redeemed,
plus accrued interest thereon to the date of redemption (subject to the
right of holders of record on the relevant record date to receive interest
due on the relevant interest payment date).
If money sufficient to pay the redemption price of and accrued
interest on all of the Securities (or portions thereof) to be redeemed on
the redemption date is deposited with the Trustee or a paying agent on or
before the redemption date and certain other conditions are satisfied, then
on and after such date, interest will cease to accrue on such Securities
(or such portion thereof) called for redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to
the Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity with the Remaining Life of
the Securities to be redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date, the average of five Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means each of Salomon Smith
Barney Inc. and J.P. Morgan Securities Inc., and their respective
successors; provided, however, that if any of the foregoing shall
cease to be primary U.S. Government securities dealers in New
York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
by 5:00 p.m., New York City time, on the third Business Day preceding such
redemption date.
"Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual yield to maturity of the Comparable
Treasury Issue, calculated on the third Business Day preceding such
redemption date using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury
Price for such redemption date.
3. Certain Covenants. The Indenture restricts the Company's and
each of the Subsidiary Guarantor's ability to merge, consolidate or sell
substantially all of its assets. In addition, the Company is obliged to
abide by certain covenants, including covenants limiting the amount of debt
it may incur, as well as its ability to enter into sale and leaseback
transactions, a covenant requiring it to maintain its material properties,
and a covenant requiring it to pay or discharge all taxes, all as more
fully described in the Indenture. All of such covenants are subject to the
covenant defeasance procedures outlined in the Indenture.
In the event of certain sales, transfers, or other dispositions
of, or casualties or other insured damages to, or any takings under power
of eminent domain or by condemnation or similar proceedings of, certain
assets that constitute Collateral, under certain circumstances, a portion
of the proceeds of such sales, transfers, dispositions, casualties or
condemnations shall be deposited into an account held by the Trustee in
accordance with the terms of the Indenture. When the proceeds in such
account exceed $10,000,000, the Company shall make an offer to purchase the
Securities in accordance with the terms of the Indenture.
4. Guarantees; Security. To guarantee the due and punctual
payment of the principal and interest on the Securities and all other
amounts payable by the Company under the Indenture and the Securities when
and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Securities and the
Indenture, the Subsidiary Guarantors have, subject to certain limitations,
jointly and severally guaranteed such payment obligations pursuant to the
terms of the Second Priority Subsidiary Guarantee Agreement.
The guarantees under the Second Priority Subsidiary Guarantee
Agreement are secured by Second Priority Liens on the Collateral pursuant
to the terms of the Second Priority Collateral Documents. The Second
Priority Liens are shared equally and ratably with the lenders under the
Existing Facilities and the Synthetic Lease Facilities as and to the extent
provided in the Second Priority Subsidiary Guarantee Agreement, the Second
Priority Collateral Documents and the Intercreditor Agreement. The actions
of the holders of any debt (including, but not limited to, the Securities)
secured by such Second Priority Liens and the application of proceeds from
the enforcement of any remedies with respect to such Collateral are limited
pursuant to the terms of the Collateral Documents and the Intercreditor
Agreement.
5. Effect of Event of Default. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
6. Amendments and Waivers. Modifications and amendments of the
Indenture will be permitted to be made only with the consent of the holders
of not less than a majority in principal amount of all outstanding
Securities issued under the Indenture that are affected by such
modification or amendment; provided that no such modification or amendment
may, without the consent of the holder of each such Security affected
thereby, (a) change the stated maturity of the principal of, or any
installment of interest or principal on, any such Security; (b) reduce the
principal of, or the rate or amount of interest on, or any amount payable
upon redemption of, any such Security, or adversely affect any right of
repayment of the holder of any such Security; (c) change the place of
payment, or the coin or currency, for payment of principal of or interest
on any such Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Security; (e)
reduce the above-stated percentage of outstanding Securities necessary to
modify or amend the Indenture, or to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder; (f)
release any security interest that may have been granted in favor of the
Holders, other than in accordance with the terms of the applicable Second
Priority Collateral Document governing the grant of such security interest
or the Intercreditor Agreement that are in effect on the Closing Date;
provided, however, that to the extent (i) the applicable terms of such
agreements cross-reference the terms of the Second Priority Debt Documents
and (ii) all of the Second Priority Debt Obligations, other than the
Exchange Note Obligations, have been paid in full, such cross-references
shall refer to the terms of the Second Priority Debt Documents, other than
the Exchange Note Documents, that were in effect as of the Closing Date;
(g) make any change in any Second Priority Collateral Document or any
change in this Indenture with respect to the Collateral that would
adversely affect the Holders, except for any such change made in accordance
with the terms of the Intercreditor Agreement or the applicable Collateral
Documents, as the case may be, that are in effect on the Closing Date;
provided, however, that to the extent (i) the applicable terms of such
agreements cross-reference the terms of the Second Priority Debt Documents
and (ii) all of the Second Priority Debt Obligations, other than the
Exchange Note Obligations, have been paid in full, such cross-references
shall refer to the terms of the Second Priority Debt Documents, other than
the Exchange Note Documents, that were in effect as of the Closing Date;
(h) reduce the Redemption Price payable upon the redemption of any
Securities or change the time at which any Securities may be redeemed; or
(i) modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or waived without
the consent of the holder of such Security.
Modifications and amendments of the Indenture will be permitted
to be made by the Company and the Trustee without the consent of any holder
of Securities for any of the following purposes: (a) to evidence the
succession of another person to the Company as obligor under the Indenture;
(b) to add to the covenants, agreements and obligations of the Company for
the benefit of the holders of all Securities or to surrender any right or
power conferred upon the Company in the Indenture; (c) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee;
(d) to cure any ambiguity, defect or inconsistency in the Indenture; (e) to
add guarantees with respect to the Securities or to secure the Securities;
or (f) to make any other change that does not adversely affect the rights
of any Holder of Securities.
7. Denominations; Transfer. (a) The Securities are issuable in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.
(b) A certificate in global form representing all or a portion
of the Securities may not be transferred except as a whole by the
Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such
Securities or a nominee of such successor Depositary.
8. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement
of the Company contained under this Security or the Indenture. Each holder
by accepting this Security waives and releases all such liability. This
waiver and release are part of the consideration for the issue of this
Security.
9. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK GOVERN THE
INDENTURE AND THIS SECURITY.
SCHEDULE A
SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT
The following notations in respect of changes in the
outstanding principal amount of this Security have been made:
Change in
Initial Outstanding Outstanding
Principal Principal Principal
Date Amount Amount Amount Notation
---- -------- ------- ------- --------
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The Securities shall be known
and designated as the "10.50% Senior Secured Notes due 2002". The aggregate
amount of Securities which may be authenticated and delivered hereunder is
limited to $467,500,000, except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 3.04, 3.05 or 9.06.
Unless the context otherwise requires, the Original Securities
and the Exchange Securities shall constitute Securities for all purposes
under the Indenture, including with respect to any amendment, waiver,
acceleration or other Act of Holders or redemption.
SECTION 3.02. Denominations. The Securities shall be issuable
only in registered form without coupons and only in denominations of $1,000
and integral multiples thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman, its President, one of its Vice Presidents
or its Secretary. 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 any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities 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 make
available for delivery such Securities as provided in this Indenture and
not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a registration
statement under the Securities Act with respect thereto, the Company may
deliver Exchange Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Exchange Securities and a like principal amount of
Original Securities for cancellation in accordance with this Indenture, and
the Trustee in accordance with the Company Order shall authenticate and
make available for delivery such Securities. Prior to authenticating such
Exchange Securities, and accepting any additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, if requested, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating in
substance:
(a) that all conditions hereunder precedent to the
authentication and delivery of such Exchange Securities have been
complied with and that such Exchange Securities, when such Securities
have been duly authenticated and delivered by the Trustee (and
subject to any other conditions specified in such Opinion of
Counsel), have been duly issued and delivered and will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and
(b) that the issuance of the Exchange Securities in exchange
for Original Securities has been effected in compliance with the
Securities Act.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall, as soon as practicable thereafter, authenticate and deliver,
temporary Securities, which Securities are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution thereof. 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 any
office or agency of the Company designated pursuant to Section 10.02,
without charge to the Holder. Upon receipt of notice of surrender for
cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall, as soon as practicable thereafter,
authenticate and make available for delivery 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 3.05. Global Securities. (a) Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated by the Company for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security
for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) has ceased to be a clearing
agency registered as such under the Exchange Act, and in either case the
Company fails to appoint a successor Depositary, (ii) the Company executes
and delivers to the Trustee a Company Order stating that it elects to cause
the issuance of the Securities in certificated form and that all Global
Securities shall be exchanged in whole for Securities that are not Global
Securities (in which case such exchange shall be effected by the Trustee)
or (iii) there shall have occurred and be continuing an Event of Default
with respect to the Securities.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of
the Depositary or its nominee to the Trustee, as Security Registrar, for
exchange or cancellation as provided in this Article III. If any Global
Security is to be exchanged for other Securities or canceled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall
be so surrendered for exchange or cancellation as provided in this Article
III or (ii) the principal amount thereof shall be reduced or increased by
an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so exchanged for
a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative
to make a corresponding adjustment to its records. Upon receipt of notice
of any such surrender or adjustment of a Global Security, the Trustee
shall, subject to Section 3.06(c) and as otherwise provided in this Article
III, as soon as practicable thereafter, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the Company shall promptly
make available to the Trustee a reasonable supply of Securities that are
not in the form of Global Securities. The Trustee shall be entitled to rely
upon any order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article III if such
order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article III or
otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee
thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under the Indenture and the Securities and owners of beneficial
interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its
nominee or its Agent Members.
SECTION 3.06. Registration, Registration of Transfer and Exchange;
Restricted Securities Legends. (a) Registration, Registration of Transfer
and Exchange Generally. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company designated pursuant
to Section 10.02 being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities
and of transfers and exchanges of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities
and transfers and exchanges of Securities as herein provided. Such Security
Register shall distinguish between Original Securities and Exchange
Securities.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section 10.02 for
such purpose, the Company shall execute, and the Trustee shall, as soon as
practicable thereafter, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations, of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 3.06, Securities may be exchanged for other
Securities of any authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall, as soon as practicable
thereafter, authenticate and make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and (except for the differences between Original
Securities and Exchange Securities provided for herein) entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 3.03, 3.04, 3.05,
3.06, or 9.06 not involving any transfer.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds
specified in this Section 3.06(b) shall be made only in accordance with
this Section 3.06(b).
(i) Exchanges between Global Security and Non-Global Security.
A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.05;
provided that, if such interest is a beneficial interest in a
Restricted Global Security, then such interest shall be exchanged for
a Restricted Security (subject in each case to Section 3.06(c)).
(c) Restricted Securities Legends. Exempt Securities and their
respective Successor Securities shall bear a Restricted Securities Legend,
subject to the following:
(i) subject to the following clauses of this Section 3.06(c),
a Security or any portion thereof which is exchanged, upon transfer
or otherwise, for a Global Security or any portion thereof shall bear
the Restricted Securities Legend borne by such Global Security while
represented thereby;
(ii) subject to the following clauses of this Section 3.06(c),
a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the
Restricted Securities Legend borne by such other Security;
(iii) Exchange Securities shall not bear a Restricted
Securities Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities
Act, a new Security which does not bear a Restricted Securities
Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof which bears such a
legend if the Trustee has received an unlegended Security, duly
executed by the Holder of such legended Security or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall, as soon as practicable thereafter,
authenticate and deliver such a new Security in exchange for or in
lieu of such other Security as provided in this Article III;
(v) a new Security which does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof which
bears such a legend if, in the Company's judgment, placing such a
legend upon such new Security is not necessary to ensure compliance
with the registration requirements of the Securities Act, and the
Trustee, at the direction of the Company, shall authenticate and
deliver such a new Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of this Section
3.06(c), a Successor Security of a Security that does not bear a
particular form of Restricted Securities Legend shall not bear such
form of legend unless the Company has reasonable cause to believe
that such Successor Security is a "restricted security" within the
meaning of Rule 144, in which case the Trustee, at the direction of
the Company, shall authenticate and deliver a new Security bearing a
Restricted Securities Legend in exchange for such Successor Security
as provided in this Article III.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall, as soon as practicable thereafter,
authenticate and deliver in exchange therefor a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by either
of them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall, as soon as practicable
thereafter, authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities 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 3.08. 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.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities (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.
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 3.09. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 3.08) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or
its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in
such Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Security in global form.
SECTION 3.10. 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 the Trustee. The Company may at
any time 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, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures.
SECTION 3.11. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360 day year of twelve 30-day months.
SECTION 3.12. Cusip Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange and the Company's right of optional
redemption, (ii) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payment of
principal and interest on the Securities, (iv) rights, obligations and
immunities of the Trustee under the Indenture and (v) rights of the Holders
of the Securities as beneficiaries of the Indenture with respect to any
property deposited with the Trustee payable to all or any of them), 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
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.07 and (ii) 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 10.03)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient
to pay and discharge the entire indebtedness on such
Securities 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;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant
to this Section 4.01, the obligations of the Company to the Trustee under
Section 6.07 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of
the Trustee under Section 4.02 and the last paragraph of Section 10.03
shall survive.
SECTION 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with
the Trustee pursuant to Section 4.01 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 separated from other funds except to the extent
required by law.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(1) failure to pay the principal of (or premium, if
any, on) any Security at its Maturity; or
(2) failure to pay any interest upon any Security when it
becomes due and payable, and continuance of such default for a period
of 30 days; or
(3) failure of the Company or any of the Subsidiary
Guarantors to perform or comply with the provisions of
Section 8.01; or
(4) failure to perform any other covenant or agreement of the
Company or any of the Subsidiary Guarantors in this Indenture or the
Securities (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified
mail, to the Company or such Subsidiary Guarantor, as the case may
be, by the Trustee or to the Company or such Subsidiary Guarantor, as
the case may be, and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence
of indebtedness of the Company or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness of the Company, whether such
indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after
the expiration of any applicable grace period with respect thereto
and shall have resulted in such indebtedness in an aggregate
principal amount exceeding $10,000,000 becoming or being declared
due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or
annulled, within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 10% in principal amount of the Outstanding Securities a
written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; provided, however,
that if such default under such bond, debenture, note, mortgage,
indenture or other instrument or evidence of indebtedness shall
be remedied or cured by the Company or waived pursuant to such
agreement or instrument, then, unless the maturity of the
Securities shall have been accelerated as provided herein, the
Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or the
Holders; or
(6) any event of default or condition shall occur under the
Existing Facilities (excluding the Finco Facility) which results in
the acceleration of the maturity of any of the Existing Facilities
(excluding the Finco Facility) or permits the lenders under any of
the Existing Facilities (excluding the Finco Facility), or any Person
acting on such Person's behalf, to accelerate the maturity thereof,
and such event or condition has continued for a period of 25 days
after the occurrence thereof; provided, however, that if such event
of default or condition under such Existing Facility shall be
remedied or cured by the Company or waived pursuant to such agreement
or instrument, then, unless the maturity of the Securities shall have
been accelerated as provided herein, the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or the Holders; or
(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(8) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to have a
case commenced against it or to seek an order for relief under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other
similar law or the taking of corporate action by the Company in
furtherance of any such action; or
(9) any guarantee under the Second Priority Subsidiary
Guarantee Agreement ceases to be in full force and effect (other than
in accordance with the terms of this Indenture and the Second
Priority Subsidiary Guarantee Agreement) or any Subsidiary Guarantor
denies or disaffirms its obligations under the Second Priority
Subsidiary Guarantee Agreement; or
(10) the material impairment of the security interests under
the Second Priority Collateral Documents for any reason other than
the satisfaction in full of all obligations thereunder and under this
Indenture and discharge of the Second Priority Collateral Documents
and this Indenture, or any security interest created hereunder or
thereunder being declared invalid or unenforceable, or the Company or
any of its Subsidiaries asserting, in any pleading in any court of
competent jurisdiction, that any such security interest is invalid or
unenforceable.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.01(7) or (8)) occurs and is continuing, then and in every such case the
Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities may direct the Trustee to declare all of the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee), and upon any such declaration such principal
and any accrued interest, if any, shall become immediately due and payable.
If an Event of Default specified in Section 5.01(7) or (8) occurs, the
principal and any accrued interest on the Securities then Outstanding shall
ipso facto become immediately due and payable without any declaration or
other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration and, to the extent that payment of
such interest is lawful, interest thereon at the rate provided
by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(ii) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the
Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and
interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium,
if any) and on any overdue interest, at the rate provided by the
Securities, if any, 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 by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company or any other obligor upon the
Securities, or upon the property of the Company or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.05. 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 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 5.06. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or 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 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (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, respectively.
SECTION 5.07. Limitation on Suits. No Holder of any
Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate 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;
(3) such Holder or Holders have agreed to indemnify the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate 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 herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 5.08. 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) and (subject to Section 3.08) 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 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 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 3.07, 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
aggregate 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
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of the
Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security, or
(2) 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.
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. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, including attorney's fees and expenses in the manner
and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or the Company.
SECTION 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 5.16. Enforcement of Remedies. Notwithstanding any of
the foregoing, any enforcement of the guarantees under the Second Priority
Guarantee Agreement or any remedies with respect to the Second Priority
Collateral under the Second Priority Collateral Documents is subject to the
provisions of the Intercreditor Agreement.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. Except
during the continuance of an Event of Default, the duties and
responsibilities of the Trustee shall be as provided by the Indenture.
During the existence of an Event of Default, the Trustee will exercise such
rights and powers vested in it under the Indenture and use the same degree
of care and skill in its exercise as a prudent person would exercise under
the circumstances in the conduct of such person's own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the
Holders notice of any default hereunder as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 5.01(4), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to
the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate or opinion;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for, and shall be fully protected from, any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder; and
(k) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by the Intercreditor Agreement or
any of the Second Priority Collateral Documents with respect to
voting or approving any amendments, consents or waivers in connection
with such agreements unless the approval of such amendment, consent
or waiver would not otherwise be so determined without the vote of
the Trustee.
SECTION 6.04. 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, the Second Priority Subsidiary Guarantee
Agreement or of the Securities. The Trustee shall not be accountable for
the use or application by the Company of Securities or the proceeds
thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, may become
the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13,
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 6.06. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed
in writing with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company and
each Subsidiary Guarantor, jointly and severally, agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture, including, but not
limited to the costs incurred in connection with collection
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee and its agents, employees,
officers, directors and shareholders for, and to hold the same
harmless against, any and all loss, liability damage, claim or
expense, including, without limitation, reasonable attorney's fees
and expenses, and taxes (other than taxes based on the income of the
Trustee) 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 or investigating any claim (including any claim by the
Company) or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.07, except with respect to
funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(7) or Section
5.01(8), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and/or the satisfaction and discharge or termination
of this Indenture.
SECTION 6.08. Disqualification; Conflicting Interest. If the
Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. 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
6.11.
(b) The Trustee may resign at any time with respect to the
Securities 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, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and 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, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to such Securities.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 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
(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such Securities.
(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 aggregate 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, 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 and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the 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 to all
Holders of Securities in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11. 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; but, 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 the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of
any such successor Trustee and 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.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), 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 7.01. Company To Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as
of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Securities received
by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt
of a new list so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders of Securities with respect to their rights under this
Indenture or under the Securities and the corresponding rights and duties
of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to the names and addresses of
Holders made pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15, following the date of this Indenture
deliver to Holders of Securities a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities
are listed on any stock exchange or of any delisting thereof.
SECTION 7.04. Reports by Company. On and after July 11, 2000,
the Company shall file with the Trustee and the Commission, and transmit to
Holders of Securities, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 30 days after the same is so required to be
filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company and the Subsidiary Guarantors May
Consolidate, Etc., Only on Certain Terms. (a) The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
and the Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the
Trustee by the Person (if other than the Company) formed by such
consolidation or into which the Company shall have been merged or by
the corporation which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing with respect to any Securities;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest
or other encumbrance which would not be permitted by this Indenture,
the Company or such successor corporation or Person, as the case may
be, shall take such steps as shall be necessary effectively to secure
the Securities of each sites equally and ratably with (or prior to)
all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Except as otherwise provided in the Second Priority
Subsidiary Guarantee Agreement, the Company shall not permit any Subsidiary
Guarantor to consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into any Subsidiary Guarantor or convey, transfer
or lease its properties and assets substantially as an entirety to any
Subsidiary Guarantor, unless:
(1) in case such Subsidiary Guarantor shall consolidate with or
merge into another corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the
corporation formed by such consolidation or into which such
Subsidiary Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
such Subsidiary Guarantor substantially as an entirety shall be a
corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by a supplement to the Second Priority
Subsidiary Guarantee Agreement and an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual performance and observance of all
obligations of such Subsidiary Guarantor under the Second Priority
Subsidiary Guarantee Agreement and the performance of every covenant
of this Indenture on the part of such Subsidiary Guarantor to be
performed or observed by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee by the Person
(if other than such Subsidiary Guarantor) formed by such
consolidation or into which such Subsidiary Guarantor shall have been
merged or by the corporation which shall have acquired such
Subsidiary Guarantor's assets;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of such
Subsidiary Guarantor as a result of such transaction as having been
incurred by such Subsidiary Guarantor at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
occurred and be continuing with respect to any Securities;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of such
Subsidiary Guarantor would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be
permitted by this Indenture, such Subsidiary Guarantor or such
successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities of
each sites equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 8.02. Successor Substituted. Upon any consolidation of
the Company or any Subsidiary Guarantor with, or merger of the Company or
any Subsidiary Guarantor into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of
the properties and assets of the Company or any Subsidiary Guarantor as an
entirety in accordance with Section 8.01, the successor Person shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company or such Subsidiary Guarantor, as the case may be, under
this Indenture and the Second Priority Subsidiary Guarantee Agreement with
the same effect as if such successor Person had been named as the Company
or such Subsidiary Guarantor, as the case may be, herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture, the Securities and the
Second Priority Subsidiary Guarantee Agreement.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such
succession, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee on its behalf for
that purpose pursuant to such provisions. All Securities so issued in all
respects have the same legal rank and benefit under this Indenture as
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all such Securities had been issued prior to the
date of such succession. In case of any such consolidation, merger, sale or
conveyance, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized
by a Board Resolution of the Company, any of the Subsidiary Guarantors and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the Company
or to any Subsidiary Guarantor and the assumption by any such
successor of the covenants of the Company or such Subsidiary
Guarantor, as the case may be, herein and in the Securities; or
(2) to add to the covenants of the Company or any of the
Subsidiary Guarantors for the benefit of the Holders of Securities,
or to surrender any right or power herein conferred upon the Company
or any of the Subsidiary Guarantors; or
(3) to add Subsidiary Guarantors with respect to the
Securities or to secure the Securities; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
action pursuant to this clause (5) shall not adversely affect the
interests of the Holders of Securities in any material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution
of the Company, the Subsidiary Guarantors and the Trustee may enter into an
indenture or 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 modifying in any manner the rights of
the Holders of Securities under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) 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
thereon, or change the place of payment where, or the coin or
currency in which, 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 on or after the Stated Maturity
thereof, or
(2) 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
(3) release any security interest that may have been granted in
favor of the Holders, other than in accordance with the terms of the
Collateral Documents or the Intercreditor Agreement that are in
effect on the Closing Date; provided, however, that to the extent (i)
the applicable terms of such agreements cross-reference the terms of
the Second Priority Debt Documents and (ii) all of the Second
Priority Debt Obligations, other than the Exchange Note Obligations,
have been paid in full, such cross-references shall refer to the
terms of the Second Priority Debt Documents, other than the Exchange
Note Documents, that were in effect as of the Closing Date, or
(4) make any change in any Second Priority Collateral Document
or any change in this Indenture with respect to the Collateral that
would adversely affect the Holders, except for any such change made
in accordance with the terms of the Intercreditor Agreement or the
applicable Collateral Document, as the case may be, that are in
effect on the Closing Date; provided, however, that to the extent (i)
the applicable terms of such agreements cross-reference the terms of
the Second Priority Debt Documents and (ii) all of the Second
Priority Debt Obligations, other than the Exchange Note Obligations,
have been paid in full, such cross-references shall refer to the
terms of the Second Priority Debt Documents, other than the Exchange
Note Documents, that were in effect as of the Closing Date, or
(5) reduce the Redemption Price payable upon the
redemption of any Securities or change the time at which any
Securities may be redeemed, or
(6) modify any of the provisions of this Section 9.02 or
Section 10.17, 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 Outstanding Security
affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) 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 9.04. 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 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of
any supplemental indenture relating to Securities 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.
ARTICLE X
Covenants
SECTION 10.01. 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.
SECTION 10.02. Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, 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. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, 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 designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 10.03. 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 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.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on Securities, deposit with a Paying Agent a sum 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 its action or
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:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) 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;
(2) 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
(3) 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) 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;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 10.04. Corporate Existence. Subject to Article VIII,
the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
in good faith shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.05. Maintenance of Properties. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Subsidiary of the Company to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined by the Board of
Directors in good faith, desirable in the conduct of its business or the
business of any Subsidiary of the Company and not disadvantageous in any
material respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or
upon the income, profits or property of the Company or any of its
Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the
Company or any of its Subsidiaries; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 10.07. Insurance. The Company covenants and agrees that
it will, and will cause each Subsidiary to, insure and keep insured, with
reputable insurance companies, their principal properties, and such
insurance shall be in such amounts (and with such deductibles) as companies
engaged in a similar business in accordance with good business practice
customarily insure properties of a similar character against loss by fire
and from other causes or, in lieu thereof, in the case of itself or of any one
or more of its Subsidiaries, it will maintain or cause to be maintained a
program of self-insurance in accordance with good business practices.
SECTION 10.08. Restrictions on Funded Debt of Restricted
Subsidiaries. The Company covenants and agrees that it will not permit any
Restricted Subsidiary to create, issue, incur, assume, or in any other way
become liable for any unsecured Funded Debt unless the Company would be
entitled under subparagraph (e) of Section 10.10 of this Indenture to
create, issue, incur, assume or guarantee any Secured Debt not specifically
permitted under Section 10.10 of this Indenture but for subparagraph (e)
thereof in an amount equal to such Funded Debt; provided, however, that the
foregoing restriction shall not prevent (i) any Restricted Subsidiary from
becoming liable to the Company or to a Wholly-owned Restricted Subsidiary
for Funded Debt or (ii) the extension, renewal or refunding of any Funded
Debt of any Restricted Subsidiary so long as Consolidated Funded Debt is
not thereby increased.
SECTION 10.09. Restriction on Sales with Leases Back. Except
for a sale or transfer by a Restricted Subsidiary to the Company or a
Wholly-owned Restricted Subsidiary, the Company covenants and agrees that
it will not, and will not permit any Restricted Subsidiary to, sell or
transfer any manufacturing plant, warehouse, retail store or equipment
owned and operated or hereafter owned and operated by the Company or a
Restricted Subsidiary, with the intention that the Company or any
Restricted Subsidiary take back a lease thereof, except a lease for a
period, including renewals, not exceeding 24 months, by the end of which
period it is intended that the use of such property or equipment by the
lessee will be discontinued (any such transaction being herein referred to
as a "Sale and Leaseback Transaction"); provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may enter into a Sale
and Leaseback Transaction if the Company or a Restricted Subsidiary would
be entitled under subparagraph (e) of Section 10.10 to create, issue,
incur, assume or guarantee any Secured Debt not specifically permitted
under Section 10.10 of this Indenture but for subparagraph (e) thereof in
an amount equal to the Attributable Debt respecting such Sale and Leaseback
Transaction; provided further that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary may enter into a Sale and Leaseback
Transaction if entered into in respect of property acquired by the Company
or a Restricted Subsidiary if such Sale and Leaseback Transaction is
entered into within 24 months from the date of such acquisition; and
provided further that, notwithstanding the foregoing, the Company or any
Restricted Subsidiary may enter into a Sale and Leaseback Transaction if
the Company, within 120 days before or after the sale or transfer shall
have been made by the Company or by any Restricted Subsidiary, applied or
applies an amount equal to the greater of (i) the net proceeds of the
sale of the property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the property so sold and leased back at the
time of entering into such arrangement (as determined by any two of the
following: the Chairman of the Board of the Company, its Chief Executive
Officer, its President, any Vice President of the Company, its Treasurer
and its Controller) to the retirement of Secured Debt of the Company other
than at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
SECTION 10.10. Restrictions on Secured Debt. The Company
covenants and agrees that it will not, and will not permit any Restricted
Subsidiary to, create, issue, incur, assume or guarantee any Secured Debt
without making effective provision (and the Company covenants that in such
case it will make or cause to be made effective provision) whereby the
Securities then Outstanding and any other indebtedness of or guaranteed by
the Company or such Restricted Subsidiary then entitled thereto, shall be
secured by such mortgage, pledge, lien or encumbrance equally and ratably
with (or prior to) any and all other obligations and indebtedness thereby
secured for so long as any such other obligations and indebtedness shall be
so secured; provided, however, that the foregoing covenants shall not be
applicable to the following:
(a) any mortgage, pledge, lien or other encumbrance on any
property that secures the Secured Obligations, in each case, in
accordance with the terms of the Collateral Documents that are in
effect on the Closing Date; provided that such mortgages, pledges,
liens or encumbrances are otherwise permitted under this Indenture,
the Second Priority Collateral Documents and the Intercreditor
Agreement.
(b) (i) Any mortgage, pledge, lien or other encumbrance on any
property acquired or constructed by the Company or a Restricted
Subsidiary and created contemporaneously with, or within 24 months
after, such acquisition or the completion of such construction and
commencement of full operation of such property, whichever is later,
to secure or provide for the payment of any part of the purchase or
construction price of such property, or (ii) the acquisition by the
Company or a Restricted Subsidiary of property subject to any
mortgage, pledge, lien or other encumbrance upon such property
existing at the time of acquisition thereof, whether or not assumed
by the Company or such Restricted Subsidiary, or (iii) any
conditional sales agreement or other title retention agreement with
respect to any property hereafter acquired, provided that the lien of
any such mortgage, pledge, lien or other encumbrance or agreement
does not spread to other property except unimproved real property
previously owned upon which any new construction has taken place and
subsequent additions to such acquired or constructed property.
(c) Any mortgage, pledge, lien, or other encumbrance created
for the sole purposes of extending, renewing or refunding, in whole
or part, any mortgage, pledge, lien or other encumbrance permitted by
this Section 10.10 or any mortgage, pledge, lien or other encumbrance
securing the indebtedness of the Company or of any Restricted
Subsidiary on the date of this Indenture or of a corporation at the
time such corporation becomes a Subsidiary, or any extensions,
renewals or refundings of any such mortgage, pledge, lien or other
encumbrance; provided, however, that the principal amount of
indebtedness secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension, renewal or
refunding and that such extension, renewal or refunding mortgage,
pledge, lien or other encumbrance shall be limited to all or that
part of the same properties which secured the mortgage, pledge, lien
or other encumbrance extended, renewed or refunded.
(d) Any Secured Debt of a Restricted Subsidiary owing
to the Company or a Wholly-owned Restricted Subsidiary.
(e) Secured Debt of the Company and its Restricted Subsidiaries
which would otherwise be prohibited by the foregoing restrictions
(not including Secured Debt permitted to be secured under
subparagraphs (a) through (d) above, so long as the sum of any such
Secured Debt hereafter incurred plus Attributable Debt of the Company
and any Restricted Subsidiaries in respect of existing Sale and
Leaseback Transactions hereafter entered into (excluding Attributable
Debt incurred in respect of any Sale and Leaseback Transaction
entered into in respect of property acquired by the Company or a
Restricted Subsidiary not more than 24 months prior to the date such
Transaction is entered into) plus unsecured Funded Debt of any
Restricted Subsidiary hereafter incurred (excluding unsecured Funded
Debt incurred through the extension, renewal or refunding of Funded
Debt where Consolidated Funded Debt was not thereby increased and
excluding any Funded Debt owed to the Company or a Wholly- owned
Restricted Subsidiary) does not at the time exceed 20% of
Consolidated Net Tangible Assets.
SECTION 10.11. Restrictions on Impairment of Security Interest.
Neither the Company nor any Subsidiary of the Company is permitted to take
or omit to take any action that would materially impair the security
interest with respect to the Collateral for the benefit of the Trustee and
the Holders of the Securities, and neither the Company nor any Subsidiary
is permitted to grant to any person any security interest whatsoever in any
of the Collateral; provided, however, that the Company and such Subsidiaries
may take any such actions and grant any such security interests in
accordance with the Collateral Documents and the Intercreditor Agreement.
SECTION 10.12. Restrictions on Amendments to Collateral
Documents. Neither the Company nor any Subsidiary of the Company is
permitted to amend, waive or otherwise modify, or permit or consent to any
amendment, waiver or other modification of the Collateral Documents in any
way that would be adverse to the Holders of the Securities, except for any
such amendment, waiver or modification entered into in accordance with the
terms of the Intercreditor Agreement or the applicable Collateral Document,
as the case may be, that are in effect on the Closing Date.
SECTION 10.13. Future Subsidiary Guarantors. The Company shall
cause each Person that either (a) becomes a domestic Subsidiary following
the Closing Date or (b) otherwise becomes a Subsidiary Guarantor with
respect to any of the Secured Obligations, in each case, to execute and
deliver a supplement to the Second Priority Subsidiary Guarantee Agreement
and the applicable Second Priority Collateral Documents at the time such
Person becomes a Subsidiary or Subsidiary Guarantor, as the case may be.
SECTION 10.14. Application of Collateral Proceeds. (a) At any
time when the Company or any Subsidiary Guarantor receives proceeds from a
Senior Collateral Disposition (the "Collateral Proceeds"), the Collateral
Proceeds shall be applied in accordance with Section 4.05 of the
Intercreditor Agreement so that after giving effect to any required
prepayment of the Senior Credit Facility in connection with such Senior
Collateral Disposition in accordance with Section 4.05 of the Intercreditor
Agreement, a pro rata portion of such Collateral Proceeds will be allocated
to repurchase the Securities based on the outstanding principal amount of
the Second Priority Debt Obligations required to be prepaid with such
proceeds, such amount to be measured on the date of such Senior Collateral
Disposition; provided, however, that in the event any such Senior
Collateral Disposition occurs following the occurrence of a Triggering
Event, whether the Holders shall be entitled to prepayment shall be
determined in accordance with the terms of the Second Priority Collateral
Documents and the Intercreditor Agreement.
(b) Any Collateral Proceeds that are available to repurchase
the Securities (the "Securities Collateral Proceeds") will be deposited
into an account held by the Trustee (the "Securities Collateral Account").
When the aggregate amount of Securities Collateral Proceeds in the
Securities Collateral Account exceeds $10,000,000 (taking into account
income earned on such Securities Collateral Proceeds, if any), the Company
shall make an offer to purchase (the "Prepayment Offer") the Securities,
which offer shall be in the amount of the Securities Collateral Proceeds,
on a pro rata basis according to principal amount at maturity, at a
purchase price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the purchase date (subject to the right of
holders of record on the relevant record date to receive interest due on
the relevant interest payment date), in accordance with the procedures
(including prorating in the event of oversubscription) set forth herein. To
the extent that any portion of the amount of Securities Collateral Proceeds
remains after compliance with the preceding sentence and provided that all
Holders have been given the opportunity to tender their Securities for
purchase in accordance with this Indenture, the Company may use such excess
only to repurchase Securities in open market transactions, and otherwise
such excess must remain deposited in an account, for the sole benefit of
the Securities, which is controlled by the Trustee. The Securities will be
secured by a first priority security interest in such account. Following
the completion of a Prepayment Offer, the amount of Securities Collateral
Proceeds will be reset to zero.
(c)(1) Within five Business Days after the Company makes a
Prepayment Offer in accordance with paragraph (b) above, the Company shall
send a written notice, by first-class mail, to the Holders, accompanied by
such information regarding the Company and its Subsidiaries as the Company
in good faith believes will enable such Holders to make an informed
decision with respect to such Prepayment Offer. Such notice shall state,
among other things, the purchase price and the purchase date (the "Purchase
Date"), which shall be, subject to any contrary requirements of applicable
law, a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed.
(2) Not later than the date upon which written notice of a
Prepayment Offer is delivered to the Trustee as provided above, the Company
shall deliver to the Trustee written instructions as to (i) the amount of
the Prepayment Offer (the "Offer Amount") and (ii) the allocation of the
Collateral Proceeds from the Senior Collateral Disposition, pursuant to
which such Prepayment Offer is being made. On or before the Purchase Date,
the Company shall also irrevocably deposit with the Trustee or with the
Paying Agent (or, if the Company is the Paying Agent, shall segregate and
hold in trust) in U.S. Government Obligations, maturing on the last day
prior to the Purchase Date or on the Purchase Date if funds are immediately
available by open of business, an amount equal to the Offer Amount to be
held for payment in accordance with the provisions of this Section. Upon
the expiration of the period for which the Prepayment Offer remains open
(the "Offer Period"), the Company shall deliver to the Trustee for
cancelation the Securities or portions thereof that have been properly
tendered to and are to be accepted by the Company. The Trustee or the
Paying Agent shall, on the Purchase Date, mail or deliver payment to each
tendering Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount, the Trustee or the Paying Agent
shall deliver the excess to the Company immediately after the expiration of
the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased pursuant to
the Prepayment Offer shall be required to surrender the Security, with an
appropriate form duly completed, to the Company or its agent at the address
specified in the notice at least five Business Days prior to the Purchase
Date. Holders shall be entitled to withdraw their election if the Trustee
or the Company receives not later than three Business Days prior to the
Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security that was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing its election to have such Security purchased. If at the
expiration of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Securities to be purchased on pro rata basis for all Securities (with
such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof, shall
be purchased). Holders whose Securities are purchased only in part shall be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee
that are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by
the Company pursuant to and in accordance with the terms of this Section. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee or the Paying Agent mails or delivers payment therefor to the
surrendering Holder.
(d) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of the Securities
pursuant to any Prepayment Offer conducted in accordance with this Section
10.14. To the extent that the provisions of any securities laws or
regulations conflict with the procedures with respect to a Prepayment Offer
as set forth herein, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its
obligations under the covenant described hereunder by virtue thereof.
SECTION 10.15. Restrictions on Permitting Unrestricted
Subsidiaries To Become Restricted Subsidiaries. (a) The Company will not
permit any Unrestricted Subsidiary to be designated as a Restricted
Subsidiary unless such Subsidiary has outstanding no Secured Debt, Funded
Debt and/or Attributable Debt in respect of Sale and Leaseback Transactions
except such Secured Debt, Funded Debt and Attributable Debt as the Company
could permit it to become liable for immediately after becoming a
Restricted Subsidiary under the provisions of Sections 10.08, 10.09 and
10.10 of this Indenture.
(b) Promptly after the adoption of any Board Resolution
designating a Restricted Subsidiary as an Unrestricted Subsidiary or an
Unrestricted Subsidiary as a Restricted Subsidiary, a copy thereof shall be
filed with the Trustee, together, in the case of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary, with an Officers'
Certificate stating that the provisions of this Section have been complied
with in connection with such designation.
SECTION 10.16. Statement by Officers as to Default. Reference is
made to Section 314(a)(4) of the Trust Indenture Act.
SECTION 10.17. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any covenant or condition
set forth in Sections 10.07 to 10.14, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities affected thereby (voting as a class) shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. All of the Securities are
redeemable before their maturity pursuant to the terms of this Indenture
and the Securities. If less than all the Securities are to be redeemed, the
Trustee shall select, in such manner as it shall deem fair and appropriate,
the particular Securities to be redeemed or any portion thereof that is an
integral multiple of $1,000.
The Securities will not have the benefit of any sinking fund.
SECTION 11.02. Election To Redeem; Notice To Trustee. The election
of the Company to redeem any Securities pursuant to Section 11.01 shall be
evidenced by a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 90 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed.
SECTION 11.03. Selection by Trustee of Securities To Be
Redeemed. If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of Securities of a denomination
larger than $1,000.
The Trustee shall promptly notify the Company and each 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 the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor
more than 90 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (or formula for calculating
the same),
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) CUSIP numbers of the Securities to be redeemed (if
any).
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price. 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 10.03) an amount of
money 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 which are to be redeemed on that date.
SECTION 11.06. 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 plus accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such
Securities 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 at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
provided by the Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at an office or agency
of the Company designated for that purpose pursuant to Section 10.02 (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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and make available for delivery 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
Defeasance and Covenant Defeasance
SECTION 12.01. Company's Option To Effect Defeasance or
Covenant Defeasance. The Company may at its option by Board Resolution, at
any time, in accordance with the Exchange and Registration Rights
Agreement, elect to have either Section 12.02 or Section 12.03 applied to
the Outstanding Securities upon compliance with the conditions set forth
below in this Article XII.
SECTION 12.02. Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 12.01 applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). If
the Company exercises its defeasance option or its covenant defeasance
option, each Subsidiary Guarantor, if any, shall be released from all its
obligations under its Subsidiary Guarantee. 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 and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same) except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights
of Holders of such Securities to receive, solely from the trust fund
described in Section 12.04 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 3.04, 3.05,
3.06, 10.02 and 10.03, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article XII. Subject to
compliance with this Article XII, the Company may exercise its option under
this Section 12.02 notwithstanding the prior exercise of its option under
Section 12.03.
SECTION 12.03. Covenant Defeasance. Upon the Company's exercise
of the option provided in Section 12.01 applicable to this Section, (i) the
Company and each Subsidiary Guarantor shall be released from their
respective obligations under Sections 10.05 through 10.14, inclusive, and
clauses (3) and (4) of Sections 8.01(a) and (b), (ii) the occurrence of an
event specified in Sections 5.01(3) (with respect to clause (1), (3) or (4)
of Sections 8.01(a) and (b)), 5.01(4) (with respect to any of Sections
10.05 through 10.14, inclusive), 5.01(5), 5.01(6), 5.01(9) and 5.01(10)
shall not be deemed to be an Event of Default shall cease to be effective
on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that the Company or the Subsidiary Guarantors, as the case
may be, may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, clause or
Article, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section, clause or Article or by reason of any
reference in any such Section, clause or Article to any other provision
herein or in any other document, but the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
12.02 or Section 12.03 to the then 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 6.09 who shall agree to comply with the
provisions of this Article XII applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof,
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, premium, if any, and each
installment of interest on the Securities on the Stated Maturity of
such principal or installment of interest in accordance with the
terms of this Indenture and of such Securities.
(2) In the case of an election under Section 12.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of
this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 12.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then
listed on any securities exchange, will not be delisted as a result
of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 6.08 and
for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(6) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing.
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which
it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
defeasance under Section 12.02 or the covenant defeasance under
Section 12.03 (as the case may be) have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended,
or such trust shall be qualified under such act or exempt from
regulation thereunder.
SECTION 12.05. 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 10.03, 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 12.05, the "Trustee") pursuant to Section 12.04 in respect of the
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.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.04 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.
Anything in this Article XII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 12.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance
or covenant defeasance.
SECTION 12.06. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 12.02 or
12.03 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 this Article XII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.02 or
12.03; provided, however, that if the Company makes any payment of
principal of (and 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 Security to receive such payment from the
money held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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.
RITE AID CORPORATION,
By:
----------------------------
Name:
Title:
THRIFTY PAYLESS, INC., as a
Subsidiary Guarantor,
By:
----------------------------
Name:
Title:
PCS HEALTH SYSTEMS, INC., as a
Subsidiary Guarantor,
By:
----------------------------
Name:
Title:
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE A HERETO,
By:
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY,
By:
----------------------------
Name:
Title:
SCHEDULE A
Subsidiary Guarantors
---------------------
