UNITED GROCERS, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
TRUSTEE
----------------
SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 21, 1997
SERIES K CAPITAL INVESTMENT NOTES
TABLE OF CONTENTS
Page
Parties................................................................................... 1
Recitals.................................................................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definitions........................................................ 2
Section 1.02. Provisions of General Application.................................. 3
Section 1.03. Provisions Specially Applicable to Series K Notes.................. 3
Section 1.04. Effect of Headings and Table of Contents........................... 3
Section 1.05. Successors and Assigns............................................. 4
Section 1.06. Separability Clause................................................ 4
Section 1.07. Governing Law...................................................... 4
Section 1.08. Counterparts....................................................... 4
ARTICLE TWO
Series K Note Forms
Section 2.01. Forms Generally.................................................... 4
ARTICLE THREE
Series K Notes
Section 3.01. Authorization of Series K Notes.................................... 5
Section 3.02. Entry in Investment Note Register of Series J Investment Notes..... 5
Section 3.03. Form, Issue, Dating, Payment of Principal at Maturity and
Cancellation of Series K Notes..................................... 6
Section 3.04. Registration of Transfer and Exchange of Series K Notes............ 6
Section 3.05. Persons Deemed Owners.............................................. 7
ARTICLE FOUR
Designation and Entry in Investment
Note Register, Stated Maturity, and
Rate of Interest of Series K Notes
Section 4.01. Designation and Entry in Investment Note Register.................. 8
Section 4.02. Stated Maturity and Rate of Interest............................... 8
Section 4.03. Quarterly Statement of Series K Note Holdings...................... 9
- i -
ARTICLE FIVE
Prepayment and Redemption of Series K Notes
Section 5.01. Prepayment......................................................... 9
Section 5.02. Election to Redeem.................................................. 9
Section 5.03. Procedure for Redemption........................................... 10
Section 5.04. Effect of Redemption............................................... 11
ARTICLE SIX
Subordination of Series K Notes
Section 6.01. Agreement of Subordination......................................... 11
Section 6.02. Distribution on Dissolution and Reorganization; Subrogation of
Series K Notes..................................................... 12
Section 6.03. Payments on Series K Notes......................................... 14
Section 6.04. Trustee Authorized to Effectuate Subordination..................... 15
Section 6.05. Rights of Trustee as a Holder of Senior Indebtedness............... 15
Section 6.06. Reliance by Holders of Senior Indebtedness......................... 15
Section 6.07. Subordination Not to Be Prejudiced by Certain Acts................. 15
ARTICLE SEVEN
Miscellaneous
Section 7.01. No Alteration of Prior Series of Investment Notes.................. 15
Section 7.02. Additional Supplemental Indentures................................. 16
Section 7.03. Amendment of Section 9.01 of Indenture............................. 16
Section 7.04. Satisfaction and Discharge of Indenture............................ 16
Testimonium............................................................................... 17
Signatures and Seal....................................................................... 17
Acknowledgments........................................................................... 18
- ii -
THIS SUPPLEMENTAL INDENTURE dated as of January 21, 1997, between
UNITED GROCERS, INC., an Oregon corporation (hereinafter called the "Company"),
having its principal offices at 0000 X.X. Lake Road, Milwaukie, Oregon, and
FIRST TRUST NATIONAL ASSOCIATION, a national banking association (hereinafter
called the "Trustee") having its principal corporate trust office at 0000 X.X.
Broadway, Suite 0000, Xxxxxxxx, Xxxxxx 00000,
W I T N E S S E T H :
WHEREAS the Company and the Trustee, as successor to the
corporate trust business of United States National Bank of Oregon, are parties
to an Indenture dated as of February 1, 1978 (hereinafter called the
"Indenture"), providing for the issuance by the Company of its Capital
Investment Notes (hereinafter called "Investment Notes");
WHEREAS the Indenture provides for the issuance of one or more
series of Investment Notes, each series to have such provisions as set forth in
the Indenture and indentures supplemental thereto;
WHEREAS the Company and the Trustee, as successor to the
corporate trust business of United States National Bank of Oregon, are parties
to supplemental indentures dated as of the dates set forth below, providing for
the issuance by the Company of the series of Investment Notes indicated:
Date Series
August 15, 1979 B
November 11, 1981 C
December 15, 1984 D
December 15, 1986 E
January 27, 1989 F
January 22, 1991 G
July 6, 1992 H
January 9, 1995 J
WHEREAS the Company has duly authorized the creation of an issue
of an additional series of Investment Notes (hereinafter sometimes called
"Series K Notes"); and
WHEREAS all things have been done that are necessary (1) to make
the Series K Notes the valid obligations of the Company once the Terms (as
defined herein) of the Series K Notes have been entered in the Investment Note
Register (as defined herein) and notice thereof has been given to the Trustee
and (2) to make this Supplemental Indenture a valid agreement of the Company, in
accordance with the terms of the Series K Notes and of this Supplemental
Indenture;
- 1 -
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
WITNESSETH that, in consideration of the premises and the purchase of Series K
Notes by the Holders thereof, the Company covenants and agrees to and with the
Trustee, for the equal and proportionate benefit of all present and future
Holders of Series K Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions.
Unless otherwise defined herein, the terms defined in the
Indenture have the meanings assigned to them therein and the rules of
construction specified therein shall apply hereto.
"Senior Indebtedness" means all indebtedness of the Company of
every kind and character, whether outstanding on the date of the Indenture or
thereafter created (other than indebtedness evidenced by the Investment Notes
and the Building Notes), (i) for money borrowed by the Company, (ii) for money
borrowed by others and guaranteed by the Company, (iii) constituting purchase
money indebtedness incurred for the purchase of tangible property and for the
payment of which the Company is directly or contingently liable, (iv) arising
under any document creating an absolute or contingent obligation of the Company
to purchase promissory notes and related documents from third parties, or (v)
for fees, expenses, and other obligations of the Company due in connection with
indebtedness of the Company that constitutes Senior Indebtedness; unless in each
case by the terms of the instrument creating or evidencing the indebtedness or
obligation it is provided that such indebtedness or obligation is not superior
in right of payment to the Investment Notes.
"Series K Notes" means the Series K Capital Investment Notes
provided for by this Supplemental Indenture once the Terms of the Series K Notes
have been entered in the Investment Note Register and notice thereof has been
given to the Trustee pursuant to Section 4.01.
"Terms," with respect to any Series K Note, means all of the
following items of information: number, name and address of Holder, date from
which interest is payable, date of issue, maturity date, principal sum, and
annual rate of interest.
References to Articles or Sections are references to the Articles
or Sections hereof unless such references are specifically identified as being
references to Articles or Sections of the Indenture.
- 2 -
SECTION 1.02. Provisions of General Application.
Except as otherwise specifically provided herein, the provisions
of Article One of the Indenture, Sections 3.01 through 3.06, 3.08, and 3.10 of
the Indenture and Articles Seven through Thirteen of the Indenture, as amended
with respect to Series K Notes by Article Seven of this Supplemental Indenture,
which provisions are applicable to the rights, privileges, duties, and
obligations of the Company, the Trustee, the Holders, and other Persons with
respect to Investment Notes generally, shall apply to the Series K Notes as
fully to all intents and purposes as though set forth in full herein, it being
the intent hereof that the Series K Notes authorized hereby shall constitute
Additional Investment Notes which are Investment Notes as contemplated by the
Indenture.
This Supplemental Indenture shall be construed as supplemental to
the Indenture and shall form a part thereof. The Indenture, including
specifically but without limitation Section 1.06 thereof, is hereby incorporated
by reference herein and is hereby ratified, approved, and confirmed.
SECTION 1.03. Provisions Specially Applicable to Series K Notes.
To the extent the provisions of the Indenture govern the Series K
Notes as provided in Section 1.02:
(1) The reference to "Article Six" contained in Section 9.08 of
the Indenture shall be deemed to include a reference to Article Six hereof.
(2) The references to "Series A Notes" contained in Section 13.01
of the Indenture shall be deemed to be references to "Series A Notes, Series B
Notes, Series C Notes, Series D Notes, Series E Notes, Series F Notes, Series G
Notes, Series H Notes, Series J Notes, and Series K Notes."
(3) Pursuant to Sections 1.01 and 13.05 of the Indenture,
references to the Trust Indenture Act in the Indenture and references therein to
terms defined in the Trust Indenture Act to the extent the same form a part of
this Supplemental Indenture shall mean the Trust Indenture Act as in effect at
the date as of which this Supplemental Indenture is executed.
SECTION 1.04. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience of reference only, are not to be considered a part
hereof, and shall not affect the construction hereof.
- 3 -
SECTION 1.05. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.06. Separability Clause.
In case any provision in this Supplemental Indenture or in the
Investment Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.07. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the state of Oregon.
SECTION 1.08. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
Series K Note Forms
SECTION 2.01. Forms Generally.
Notwithstanding any provision in the Indenture to the contrary,
Series K Notes will be issued as noncertificated Series K Notes. Except as
otherwise expressly provided herein, each Holder of a Series K Note shall be
entitled to receive payments of principal and interest in the same amounts and
currency and at the same time and place and shall be entitled to all other
rights under the Indenture and this Supplemental Indenture as if the Holder of
said Series K Note were a Holder of a certificated Series K Note having the same
Terms. Except as otherwise expressly provided herein, each reference in the
Indenture or in this Supplemental Indenture to authentication and delivery of
Investment Notes shall, when made with respect to Series K Notes, be deemed to
include a reference to the entry of the Terms thereof in the Investment Note
Register and the giving of notice thereof to the Trustee and each Series K Note
as to which the Terms have been entered in the Investment Note Register and
notice thereof has been given to the Trustee pursuant to Section 4.01 shall be
deemed to be a duly authenticated and delivered Investment Note, notwithstanding
the provisions to the contrary in the third and fifth paragraphs of Section 3.03
of the Indenture.
- 4 -
ARTICLE THREE
Series K Notes
SECTION 3.01. Authorization of Series K Notes.
Pursuant to the provisions of Sections 3.01, 3.10, and 13.01(6)
of the Indenture, there is hereby authorized for issuance a series of Additional
Investment Notes which shall be the Series K Notes as specified herein.
SECTION 3.02. Entry in Investment Note Register of Series K
Investment Notes.
Upon Company Order, without any further action by the Company,
the Terms of the Series K Notes authorized herein shall be entered in the
Investment Note Register and notice shall be given to the Trustee as provided in
Section 4.01. The Trustee acknowledges receipt of the following documents
pursuant to and in satisfaction of the provisions of Section 3.10 of the
Indenture:
(1) A Board Resolution authorizing the execution of this
Supplemental Indenture and the issuance of Series K Notes of up to the principal
amount specified in Section 4.01 and requesting the entry by the Investment Note
Registrar in the Investment Note Register of the Terms of such Series K Notes
and notification thereof to the Trustee.
(2) An Officers' Certificate stating that no event has occurred
and is continuing which is, or after notice or lapse of time or both would
become, an Event of Default and that all conditions precedent provided for in
the Indenture and in this Supplemental Indenture relating to the entry in the
Investment Note Register of the Terms of the Series K Notes and notification
thereof to the Trustee have been complied with.
(3) A counterpart of this Supplemental Indenture authorizing the
issuance of the Series K Notes executed by the Company and the Trustee.
(4) An Opinion of Counsel:
(A) Specifying all conditions precedent provided for in the
Indenture and in this Supplemental Indenture relating to the issuance of Series
K Notes and the entry in the Investment Note Register of the Terms of such
Series K Notes and notification thereof to the Trustee and stating that all such
conditions have been complied with;
(B) Stating that once the Terms of the Series K Notes have been
entered in the Investment Note Register and notice thereof has been given to the
Trustee, such Series K Notes will constitute legal, valid, and binding
obligations of the Company, enforceable in accordance with their terms and
entitled to the benefits of the Indenture and this
- 5 -
Supplemental Indenture subject to applicable bankruptcy, reorganization,
insolvency or other laws relating to or affecting the enforcement of creditors'
rights;
(C) Stating that all applicable stamp taxes or other governmental
charges (if any) in respect of the original issue of the Series K Notes have
been paid;
(D) Stating that the Supplemental Indenture constitutes the valid
and binding obligation of the Company enforceable in accordance with its terms
except as enforcement may be limited by laws affecting creditor's rights
generally or by principles of equity or public policy; and
(E) Stating that the amendments and supplements to the Indenture
made by this Supplemental Indenture are permitted by Section 13.01 of the
Indenture.
The acts and documents specified above with respect to the
authorization and issuance of Series K Notes shall be deemed to be the
equivalent of the acts and documents specified in Section 3.10 of the Indenture
with respect to the execution, authentication, delivery, and issue of
certificated Investment Notes.
SECTION 3.03. Form, Issue, Dating, Payment of Principal at
Maturity and Cancellation of Series K Notes.
Series K Notes will be noncertificated. A Series K Note is issued
upon both the entry of its Terms in the Investment Note Register and
notification thereof by an officer of the Company to the Trustee. The date of
authentication of a Series K Note, as well as its date of issue, shall be the
date on which both its Terms are entered in the Investment Note Register and
notice is given by an officer of the Company to the Trustee.
All payments of principal and interest shall be made in lawful
money of the United States of America at the office or agency of the Company
maintained for that purpose in the county of Clackamas, Oregon, provided that
the Company may pay the principal of and interest on Series K Notes by mailing a
check to the Holder at the Holder's last address as it appears in the Investment
Note Register.
A Series K Note shall be canceled by entering a notation to that
effect in the Investment Note Register and giving notice thereof to the Trustee.
SECTION 3.04. Registration of Transfer and Exchange of Series K
Notes.
Upon written request to the Company by the Holder for
registration of transfer of a Series K Note, the Investment Note Registrar shall
enter upon the Investment Note Register the Terms of a new Investment Note or
Notes bearing interest at the same rate and with the same Stated Maturities of
principal and interest of authorized denominations for the same aggregate
principal amount and issued in the name of the transferee. Notwithstanding any
provision in the Indenture to the contrary, the new Investment Note or Notes
will be
- 6 -
issued as a noncertificated Series K Note or Notes. There shall be no service
charge for registration of transfer of Investment Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Upon written request to the Company by the Holder for exchange of
a Series K Note, the Investment Note Registrar shall enter upon the Investment
Note Register the Terms of a new Investment Note or Notes bearing interest at
the same rate and with the same Stated Maturities of principal and interest of
authorized denominations for the same aggregate principal amount.
Notwithstanding any provision in the Indenture to the contrary, the new
Investment Note or Notes will be issued as a noncertificated Series K Note or
Notes. There shall be no service charge for exchange of Investment Notes, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company or the Investment Note Registrar may require the
written request for registration of transfer or exchange to be in form
satisfactory to the Company and the Investment Note Registrar and duly executed
by the Holder of the Series K Note or his attorney duly authorized in writing.
The office or agency maintained by the Company pursuant to
Section 7.02 of the Indenture shall be the place where Holders of Series K Notes
may submit written requests for registration of transfer or exchange.
SECTION 3.05. Persons Deemed Owners.
Prior to receipt by the Company of a written request from the
Holder of a Series K Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Series K Note is registered as the owner of such Series K Note for the
purpose of receiving payment of principal of, and (subject to Section 3.06 of
the Indenture) interest on, such Series K Note and for all other purposes
whatsoever, whether or not such Series K Note 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.
Receipt by the Company of a written request for registration of
transfer from the Holder of a Series K Note shall be deemed the equivalent of
due presentment of a certificate for registration of transfer by the Holder.
- 7 -
ARTICLE FOUR
Designation and Entry in Investment
Note Register, Stated Maturity, and
Rate of Interest of Series K Notes
SECTION 4.01. Designation and Entry in Investment Note Register.
The series of Investment Notes designated in accordance with
Section 3.01 shall be "Series K Capital Investment Notes" (herein sometimes
referred to as the "Series K Notes").
The aggregate principal amount of Series K Notes which may be
issued is limited to $50,000,000, except for Series K Notes issued upon
registration of, transfer of, or in exchange for or in lieu of other Series K
Notes pursuant to Sections 3.04 of the Indenture or Sections 3.04 or 5.03
hereof.
Forthwith upon the execution and delivery of this Supplemental
Indenture, or from time to time thereafter, the Company may authorize the
issuance of Series K Notes up to such aggregate principal amount, and thereupon
and upon Company Order, without any further action by the Company, the Terms of
the Series K Notes shall be entered in the Investment Note Register and notice
thereof shall be given to the Trustee.
SECTION 4.02. Stated Maturity and Rate of Interest.
The Stated Maturity of principal of any Series K Note other than
a Series K Note issued upon registration of transfer of or in exchange for or in
lieu of another Series K Note pursuant to Sections 3.04 of the Indenture or
Sections 3.04 or 5.03 hereof, shall be the Interest Payment Date of such Series
K Note which is ten years from its date of issue as specified in the Investment
Note Register or, if the expiration of ten years from the date of issue shall
not fall on an Interest Payment Date, then the Stated Maturity of principal of
such Series K Note shall be the Interest Payment Date next following the
expiration of ten years from its date of issue. Each Series K Note shall bear
interest at the rate per annum specified in the Investment Note Register from
the date so specified or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be. Such interest
shall be payable quarterly on March 15, June 15, September 15, and December 15,
to the person in whose name such Series K Note is registered at the close of
business on the last Business Day of the calendar month next preceding the
calendar month in which an interest payment is due, except as otherwise provided
in the Indenture and this Supplemental Indenture, until the principal of such
Series K Note is paid or made available for payment. The interest rates on
Series K Notes shall be determined by Board Resolution and shall be subject to
change by Board Resolution from time to time, but no such change shall affect
any Series K Notes theretofore issued. The denominations, dates from which
interest is payable and Stated Maturities of principal and interest of Series K
Notes shall be subject to change by the Company from time to time by an
indenture supplemental hereto
- 8 -
executed as permitted by the Indenture and this Supplemental Indenture and
authorizing the change in such denominations, dates, and Stated Maturities, but
no such change shall affect any Series K Notes theretofore issued.
SECTION 4.03. Quarterly Statement of Series K Note Holdings.
The Company shall mail or cause to be mailed not earlier than 30
days before and not later than 30 days after each Interest Payment Date to each
Holder of a Series K Note to the Holder's address as it appears in the
Investment Note Register a statement which provides the following information
with regard to each Series K Note held by such Holder: number, date from which
interest is payable, date of issue, maturity date, principal sum, and annual
rate of interest.
ARTICLE FIVE
Prepayment and Redemption of Series K Notes
SECTION 5.01. Prepayment.
Subject to the provisions of Article Six, in the event of the
death of the registered Holder of any Series K Note or of any joint registered
Holder, the Company shall, at the option of the person legally entitled to
become the Holder of the Series K Note, prepay the principal amount of the
Series K Note together with all accrued interest to the date of payment. Any
request for prepayment shall be made to the Company in writing. The Company may,
as a condition precedent to the prepayment herein provided for, require the
submission of evidence satisfactory to the Company of the death of the
registered Holder or joint registered Holder and such additional documents or
other material as it may consider necessary to establish the Person entitled to
become the Holder of the Series K Note, or such other facts as it considers
relevant to the fulfillment of its obligations hereunder.
SECTION 5.02. Election to Redeem.
Subject to the provisions of Article Six, the Series K Notes may
be redeemed at the election of the Company evidenced by Board Resolution, as a
whole or from time to time in part, at any time during the seven-year period
prior to maturity at Redemption Prices equal to the principal amount of the
Series K Notes to be redeemed plus accrued interest thereon. The Company may for
the purpose of redeeming Series K Notes classify the Series K Notes then subject
to redemption into one or more classes on the basis of their maturity or their
annual rate of interest or any combination thereof and designate for redemption
a specified principal amount of any such class or classes of Series K Notes.
- 9 -
SECTION 5.03. Procedure for Redemption.
In case the Company shall desire to exercise its right to redeem
Series K Notes which are subject to redemption, it shall give notice of such
redemption to Holders of the Series K Notes to be redeemed as hereinafter
provided in this Section.
In the event the principal amount of Series K Notes to be
redeemed shall not be equal to the principal amount of the class or classes of
Series K Notes designated by the Company for redemption, or in the event no such
class has been so designated and if less than all the Series K Notes subject to
redemption are to be redeemed, the Company shall, at least 45 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 Series K Notes to be redeemed by class, if applicable.
Thereupon the Trustee shall select (giving effect to the designation, if any, of
a class or classes of Series K Notes to be redeemed), in such manner as it shall
deem appropriate and fair in its sole discretion and which may provide for the
selection of portions (equal to $100 or an integral multiple of $100) of the
principal of Series K Notes of a denomination larger than $100, the particular
Series K Notes to be redeemed in whole or in part and shall thereafter promptly
notify the Company and each Investment Note Registrar in writing, by designating
the numbers thereof or by any other method, which Series K Notes or portions
thereof are to be redeemed.
Notice of redemption shall be given to the Holders of Series K
Notes to be redeemed as a whole or in part by mailing by first class mail a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Investment Note Register, but failure to give such notice by mail to the Holder
of any Series K Note or any defect in such notice shall not affect the validity
of the proceedings for the redemption of any other Series K Note or portion
thereof. Any notice mailed in the manner provided in this paragraph shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice.
Each notice to be mailed to the Holders of Series K Notes as
aforesaid shall state the following: (a) the Redemption Date; (b) if less than
all of the Series K Notes are to be redeemed, the distinguishing numbers (which
may be given by individual numbers of Series K Notes, by specifying all Series K
Notes ending in certain key numbers and/or by specifying all Series K Notes
between two stated numbers) or other characteristics of the Series K Notes to be
redeemed (indicating the extent of any partial redemption thereof), together
with such other description of the Series K Notes (and portions of Series K
Notes, if any) as may be necessary in order to identify the same, provided that
any such notice to be mailed need describe only the Series K Notes to be
redeemed from the Holder to whom such notice is mailed; (c) the Redemption
Price; (d) that interest on such Series K Notes (or on the portion to be
redeemed of any of such Series K Notes so designated for redemption in part)
shall cease on the Redemption Date; and (e) that on said date the Company will
mail a
- 10 -
check for the Redemption Price to each Holder of Series K Notes which are to be
redeemed to the last address of such Holder as it appears in the Investment Note
Register.
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 7.03 of the Indenture)
an amount of money sufficient to pay the Redemption Price of, and (except with
respect to any Series K Note or portion thereof for which the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Series K Notes
or portions thereof which are to be redeemed on that date.
SECTION 5.04. Effect of Redemption.
If notice of redemption shall have been given as above provided,
the Series K Notes or portions of Series K Notes specified in such notice shall
become due and payable on the Redemption Date by mail at the applicable
Redemption Price, together with interest accrued to the Redemption Date, and on
and after such Redemption Date (unless the Company shall default in the payment
of such Series K Notes at the Redemption Price, together with interest accrued
to the Redemption Date) interest on the Series K Notes or portions thereof so
called for redemption shall cease to accrue. Without any action by the Holder of
a Series K Note, such Series K Note or portion thereof shall be paid and
redeemed by the Company at the applicable Redemption Price, together with
interest accrued to the Redemption Date by mailing a check to the Holder at such
Holder's last address as it appears in the Investment Note Register; provided
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holder in whose name the Series K Note
(or Predecessor Series K Note) was registered at relevant record dates according
to its terms and the provisions of Section 3.06 of the Indenture, as amended by
this Supplemental Indenture.
In the case of a Series K Note which is redeemed in part only,
the Company shall request the Investment Note Registrar to reflect in the
Investment Note Register the principal amount of the unredeemed portion of the
Series K Note.
ARTICLE SIX
Subordination of Series K Notes
SECTION 6.01. Agreement of Subordination.
The Company agrees, and each Holder of a Series K Note, by his
purchase or acceptance thereof, likewise agrees, that the payment of the
principal of and interest on each and all of the Series K Notes is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
- 11 -
SECTION 6.02. Distribution on Dissolution and Reorganization;
Subrogation of Series K Notes.
Upon any distribution of assets of the Company upon any
liquidation, dissolution, winding up or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or any other liquidation, dissolution, winding up, or
reorganization of the Company):
(1) The holders of all Senior Indebtedness shall first be
entitled to receive payment in full, or have provision made for payment in full,
of the principal thereof, and the premium, if any, and interest thereon, before
the Holders of the Series K Notes are entitled to receive any payment on account
of the principal of or interest on the Series K Notes;
(2) Any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders
of the Series K Notes or the Trustee would be entitled except for the provisions
of this Article shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or other trustee or agent, direct to the holders
of Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably (subject to any
subordination of any class of Senior Indebtedness, by the provisions thereof, to
any other class or classes of Senior Indebtedness) according to the aggregate
amounts remaining unpaid on account of the principal of, and the premium, if
any, and interest on, the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution,
or provision therefor, to the holders of such Senior Indebtedness; and
(3) In the event that, notwithstanding the foregoing, any such
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders of the Series K Notes before all Senior Indebtedness is paid in full, or
provision made for its payment, such payment or distribution shall be paid over
to the holders of Senior Indebtedness remaining unpaid or unprovided for or
their representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, as provided in the foregoing subparagraph (2), for
application to the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution, or provision therefor, to the holders of such Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Series K Notes shall be subrogated pro rata (based on the
respective amounts paid over for the benefit of the holders of Senior
Indebtedness) with the holders of any other subordinated indebtedness of the
Company that by its terms ranks pari passu with the Series K Notes (such
subordinated indebtedness being hereafter in this Section referred to as "pari
passu
- 12 -
indebtedness") to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of and interest on the
Series K Notes shall be paid in full; and, for purposes of such subrogation, no
such payments or distributions to the holders of Senior Indebtedness, which, but
for the provisions of this Article, would have been payable or distributable to
Holders of the Series K Notes or the pari passu indebtedness, shall, as between
the Company, its creditors other than the holders of Senior Indebtedness and the
Holders of the Series K Notes and the pari passu indebtedness be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Series K Notes
and the holders of the pari passu indebtedness and the holders of the Senior
Indebtedness. Nothing contained in this Article, elsewhere in this Supplemental
Indenture, in the Indenture or in the Series K Notes is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Series K Notes, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Series K Notes the principal of and interest on the Series K Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Series K
Notes and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Series K Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Upon any distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 10.01 of the
Indenture, and the Holders of the Series K Notes shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
liquidation, dissolution, winding up or reorganization proceedings are pending
or a certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders of the Series K Notes for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Section, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Section, and, if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
- 13 -
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders of Series K
Notes or the Company or any other Person, moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
The terms "paid in full" and "payment in full" as used in this
Section with respect to Senior Indebtedness mean the receipt, in cash or
securities (taken at their market value at the time of the receipt thereof), of
the principal amount of the Senior Indebtedness (and any premium due thereon)
and full interest thereon to the date of such payment of principal.
The Series K Notes shall not be superior in right of payment to
the Series A, Series B, Series C, Series D, Series E, Series F, Series G, Series
H or Series J Notes. The Series K Notes are hereby expressly declared to rank
pari passu with the Series A, Series B, Series C, Series D, Series E, Series F,
Series G, Series H and Series J Notes and to constitute "pari passu
indebtedness" with respect to the Series A, Series B, Series C, Series D, Series
E, Series F, Series G, Series H and Series J Notes. The Series K Notes shall not
constitute Senior Indebtedness as defined in the Indenture.
SECTION 6.03. Payments on Series K Notes.
In the event and during the continuation of any default under any
instrument constituting Senior Indebtedness or pursuant to which any Senior
Indebtedness is issued continuing beyond the period of grace, if any, specified
in such instrument, the Company shall not make any payment of principal of or
interest on the Series K Notes or purchase or redeem or set aside funds for the
redemption of Series K Notes or otherwise acquire any Series K Notes, and
neither the Trustee nor any Holder of Series K Notes shall be entitled to
receive any such payment. Nothing contained in this Article, elsewhere in this
Supplemental Indenture or in the Indenture shall, however, (a) affect the
obligation of the Company to make or prevent the Company from making, at any
time, except during the pendency of any such liquidation, dissolution, winding
up, or reorganization proceedings or during the continuation of any such
default, payments of principal of or interest on the Series K Notes or (b)
prevent the application by the Trustee or any Paying Agent of any moneys
deposited with it hereunder by the Company to the payment of or on account of
the principal of or interest on the Series K Notes if, not less than two
business days prior to such application, the Trustee or such Paying Agent, as
the case may be, did not have written notice from the Company or a holder of
Senior Indebtedness of any event prohibiting the making of such deposit by the
Company or such application by the Trustee. Prior to the receipt of any such
written notice, the Trustee shall be entitled to assume that no such event
exists and shall not be charged with knowledge of the existence of any such
event.
- 14 -
SECTION 6.04. Trustee Authorized to Effectuate Subordination.
Each Holder of a Series K Note, by his purchase or acceptance
thereof, authorizes and directs the Trustee in his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided for in
this Article and appoints the Trustee his attorney in fact for such purpose.
SECTION 6.05. Rights of Trustee as a Holder of Senior
Indebtedness.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be held by
it, to the same extent as any other holder of Senior Indebtedness; and nothing
in Section 10.12 of the Indenture, or elsewhere in the Indenture or in this
Supplemental Indenture, shall deprive the Trustee of any of its rights as such
holder.
SECTION 6.06. Reliance by Holders of Senior Indebtedness.
Each Holder of any Series K Note, by his purchase or acceptance
thereof, agrees that the subordination provisions of this Article are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Series K Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
SECTION 6.07. Subordination Not to Be Prejudiced by Certain Acts.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part, of
the Company or by any act or failure to act, in good faith, by any such holder
or by any noncompliance by the Company with the terms, provisions, and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
ARTICLE SEVEN
Miscellaneous
SECTION 7.01. No Alteration of Prior Series of Investment Notes.
Nothing contained herein shall alter or amend any provision of
the Indenture insofar as it affects the rights and duties of the Company, the
Trustee, the Holders of Investment Notes or other Persons with respect to Series
A, Series B, Series C, Series D, Series E, Series F, Series G, Series H, or
Series J Notes.
- 15 -
SECTION 7.02. Additional Supplemental Indentures.
Nothing contained herein shall alter or impair the rights of the
Company and the Trustee under the Indenture to enter into one or more additional
supplemental indentures in the manner provided in the Indenture which may be
either supplemental to the Indenture or supplemental to this Supplemental
Indenture and which may be for the purpose of authorizing one or more series of
Additional Investment Notes or for any other purpose provided by the Indenture.
SECTION 7.03. Amendment of Section 9.01 of Indenture.
For purposes of the Series K Notes, Sections 9.01(5) and (6) of
the Indenture are hereby amended to read, in full, as follows:
(5) The entry of a decree or order by a court having jurisdiction
in the premises for relief in respect of the Company under the United
States Bankruptcy Code or any other applicable federal or state law or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of or for the Company or 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 unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
United States Bankruptcy Code or any other applicable federal or state
law or the consent or acquiescence by it to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of or for the Company or any substantial part of its property
or the making by it of an assignment for the benefit of creditors or its
failure to pay its debts generally as they become due or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 7.04. Satisfaction and Discharge of Indenture.
Notwithstanding the provisions of Section 11.01 of the Indenture,
the Indenture shall not be satisfied and discharged until (a) all Series K Notes
issued have been paid and canceled or (b) all Series K Notes issued which have
not been paid and canceled have become due and payable, will become due and
payable at their Stated Maturity within one year, or are to be called for
redemption within one year in accordance with Section 11.01(l)(B) of the
Indenture and the Company has provided for their payment pursuant to such
Section.
- 16 -
IN WITNESS WHEREOF the parties hereto have caused this
Supplemental 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.
UNITED GROCERS, INC.
By /s/Xxxx X. Xxxxx
Xxxx X. Xxxxx
President
Attest:
/s/Xxxxxx X. Xxxxxxx
Assistant Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By /s/Xxxxx X. XxXxxxxx
Authorized Officer
Attest:
/s/Xxxxxxxx X. Xxxx
Authorized Officer
- 17 -
STATE OF OREGON )
) SS
COUNTY OF Clackamas )
The foregoing instrument was acknowledged before me this day of
January, 1997, by Xxxx X. Xxxxx, President of United Grocers, Inc., an Oregon
corporation, on behalf of the corporation.
Notary Public for Oregon
My commission expires:
STATE OF OREGON )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
January, 1997, by , Authorized Officer of First Trust National Association, a
national banking association, on behalf of First Trust National Association.
Notary Public for Oregon
My commission expires:
- 18 -
