Exhibit 4.5
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of September 8, 1997 (this
"Supplemental Indenture"), between XXXXXXX'X FOOD MARKETS, INC., a corporation
duly organized and existing under the laws of the State of Texas (the
"Company"), having its principal office at 0000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000,
and MARINE MIDLAND BANK, a New York banking corporation and trust company, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to the Indenture
dated as of June 27, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Indenture");
WHEREAS, the Company has requested and the Trustee has agreed to join
in the execution of this Supplemental Indenture in accordance with the terms of
Section 901 of the Indenture and subject to the conditions set forth herein;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the promises and mutual agreements herein
contained, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders, as follows:
SECTION 101. AMENDMENTS TO THE INDENTURE. The Indenture is hereby
amended as follows:
(a) By deleting Section 201 therefrom in its entirety and substituting
in lieu thereof the following new Section 201:
"SECTION 201. FORMS GENERALLY.
The Initial Notes shall be known as the "93/8% Senior Subordinated
Notes due 2007" and the Exchange Notes shall be known as the "93/8% Series
B Senior Subordinated Notes due 2007," in each case, of the Company. The
Notes and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. Each Note shall be
dated the date of its authentication.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any
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other manner, all as determined by the officers of the Company executing
such Notes, as evidenced by their execution of such Notes.
Initial Notes offered and resold in reliance on Rule 144A to QIBs or
on another exemption under the Securities Act to institutional "Accredited
Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities
Act) ("IAIs") will be issued on the Issuance Date or thereafter in the form
of two permanent global Notes (with separate CUSIP numbers) substantially
in the form set forth in Sections 204 and 205 (each a "U.S. Global Note")
deposited with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
One U.S. Global Note (which may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate) will represent
Initial Notes sold to QIB's, and the other will represent Initial Notes
sold to IAI's. The aggregate principal amount of each U.S. Global Note may
from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided. Transfers of Initial Notes from QIBs to IAIs, and
from IAIs to QIBs, will be represented by appropriate increases and
decreases to the respective amounts of the appropriate U.S. Global Notes,
as more fully provided in Section 307.
Initial Notes resold in reliance on Regulation S, if any, shall be
reissued in the form of temporary certificated Notes in registered form
substantially in the form set forth in Sections 204 and 205 (the "Temporary
Offshore Physical Notes"). The Temporary Offshore Physical Notes will be
registered in the name of, and held by, a temporary certificate holder
designated by BT Securities Corporation until the later of the completion
of the distribution of the Initial Notes and the termination of the
"restricted period" (as defined in Regulation S) with respect to the offer
and sale of such Initial Notes (the "Offshore Notes Exchange Date"). The
Company shall promptly notify the Trustee in writing of the occurrence of
the Offshore Notes Exchange Date and, at any time following the Offshore
Notes Exchange Date, upon receipt by the Trustee and the Company of a
certificate substantially in the form set forth in Section 203, the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
permanent certificated Notes in registered form substantially in the form
set forth in Sections 204 and 205 (the "Permanent Offshore Physical Notes")
in exchange for the Temporary Offshore Physical Notes of like tenor and
amount.
Initial Notes resold other than as described in the preceding
paragraphs, if any, shall be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in Sections
204 and 205 (the "U.S. Physical Notes"). U.S. Physical Notes in certain
circumstances shall be transferred to all beneficial owners
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in exchange for their beneficial interests in the U.S. Global Notes as set
forth in Section 306.
The Temporary Offshore Physical Notes, Permanent Offshore Physical
Notes and U.S. Physical Notes are sometimes collectively herein referred to
as the "Physical Notes.""
(b) By deleting Section 307 therefrom in its entirety and substituting
in lieu thereof the following new Section 307:
"SECTION 307. SPECIAL TRANSFER PROVISIONS.
Unless and until (i) an Initial Note is sold under an effective
Registration Statement, or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in
each case pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Note to any IAI which is not a QIB
(excluding Non-U.S. Persons):
(i) The Note Registrar shall register the transfer of any
Initial Note, whether or not such Initial Note bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the original issue date of the Initial Note or (y) the proposed
transferee has delivered to the Note Registrar a certificate
substantially in the form set forth in Section 308.
(ii) Unless the proposed transferee is entitled to receive a U.S.
Physical Note as provided in Section 306, the proposed transferee
shall obtain a beneficial interest in the U.S. Global Note
representing Initial Notes held by IAIs, in which case, upon receipt
by the Note Registrar of the documents, if any, required by paragraph
(i), such transfer will be made in accordance with the rules and
procedures of the Depositary; PROVIDED, HOWEVER, that the Note
Registrar shall incur no liability hereunder as a result of the
failure of any IAI to deliver to the Note Registrar a certificate
substantially in the form set forth in Section 308.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Note to
a QIB (excluding Non-U.S. Persons):
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(i) If the Note to be transferred consists of U.S. Physical
Notes, Temporary Offshore Physical Notes or Permanent Offshore
Physical Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Initial Note stating, or has otherwise
advised the Company and the Note Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Initial Note stating, or has otherwise advised the Company and the
Note Registrar in writing, that it is purchasing the Initial Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it, or the person on whose behalf it is
acting with respect to any such account, is a QIB within the meaning
of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Initial Note to be transferred consists of U.S. Physical Notes,
Temporary Offshore Physical Notes or Permanent Offshore Physical
Notes, or an interest in the U.S. Global Note representing Initial
Notes held by IAIs, upon receipt by the Note Registrar of instructions
given in accordance with the Depositary's and the Note Registrar's
procedures therefor, the Note Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Note representing Initial Notes held by QIBs in an amount equal
to (x) the principal amount of the U.S. Physical Notes, Temporary
Offshore Physical Notes or Permanent Offshore Physical Notes, as the
case may be, to be transferred, and the Trustee shall cancel the
Physical Note so transferred or (y) the amount of interest in the U.S.
Global Note representing Initial Notes held by IAIs to be so
transferred (in which case the Note Registrar shall reflect on its
books and records the date and an appropriate decrease in the
principal amount of such U.S. Global Note).
(c) TRANSFERS BY NON-U.S. PERSONS PRIOR TO AUGUST 6, 1997. The
following provisions shall apply with respect to registration of any
proposed transfer of an Initial Note by a Non-U.S. Person prior to August
6, 1997:
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(i) The Note Registrar shall register the transfer of any
Initial Note (x) if the proposed transferee is a Non-U.S. Person and
the proposed transferor has delivered to the Note Registrar a
certificate substantially in the form set forth in Section 309 or (y)
if the proposed transferee is a QIB and the proposed transferor has
checked the box provided for on the form of Initial Note stating, or
has otherwise advised the Company and the Note Registrar in writing,
that the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for on
the form of Initial Note stating, or has otherwise advised the Company
and the Note Registrar in writing, that it is purchasing the Initial
Note for its own account or an account with respect to which it
exercises sole investment discretion and that it, or the person on
whose behalf it is acting with respect to any such account, is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A. Unless clause (ii) below is
applicable, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Temporary Offshore Physical
Notes of like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt
by the Note Registrar of instructions given in accordance with the
Depositary's and the Note Registrar's procedures therefor, the Note
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the appropriate U.S. Global Note
in an amount equal to the principal amount of the Temporary Offshore
Physical Note to be transferred, and the Note Registrar shall cancel
the Temporary Offshore Physical Notes so transferred; provided that if
the proposed transferee is an IAI, the proposed transferee delivers to
the Note Registrar a certificate substantially in the form set forth
in Section 308 and if the Company so requests, an opinion of counsel
setting forth the basis of the exemption from the Securities Act for
such transfer.
(d) TRANSFERS BY NON-U.S. PERSONS ON OR AFTER AUGUST 6, 1997. The
following provisions shall apply with respect to any transfer of an Initial
Note by a Non-U.S. Person on or after August 6, 1997:
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(i) (x) If the Initial Note to be transferred is a Permanent
Offshore Physical Note, the Note Registrar shall register such
transfer, (y) if the Initial Note to be transferred is a Temporary
Offshore Physical Note, upon receipt of a certificate substantially in
the form set forth in Section 309 from the proposed transferor, the
Note Registrar shall register such transfer and (z) in the case of
either clause (x) or (y), unless clause (ii) below is applicable, the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more Permanent Offshore Physical Notes of like tenor and
amount.
(ii) If the proposed transferee is an Agent Member, upon receipt
by the Note Registrar of instructions given in accordance with the
Depositary's and the Note Registrar's procedures therefor, the Note
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the appropriate U.S. Global Note
in an amount equal to the principal amount of the Temporary Offshore
Physical Note or of the Permanent Offshore Physical Note to be
transferred, and the Trustee shall cancel the Physical Note so
transferred.
(e) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) Prior to August 6, 1997, the Note Registrar shall register
any proposed transfer of an Initial Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form set forth in
Section 309 from the proposed transferor and the Company shall
execute, and the Trustee shall authenticate and make available for
delivery, one or more Temporary Offshore Physical Notes.
(ii) On and after August 6, 1997, the Note Registrar shall
register any proposed transfer to any Non-U.S. Person (w) if the
Initial Note to be transferred is a Permanent Offshore Physical Note,
(x) if the Initial Note to be transferred is a Temporary Offshore
Physical Note, upon receipt of a certificate substantially in the form
set forth in Section 309 from the proposed transferor, (y) if the
Initial Note to be transferred is a U.S. Physical Note or an interest
in a U.S. Global Note, upon receipt of a certificate substantially in
the form set forth in Section 309 from the proposed transferor and (z)
in the case of either clause (w), (x) or (y), the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Permanent Offshore Physical Notes of like tenor and amount.
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(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Note, upon receipt by the Note
Registrar of (x) the document, if any, required by paragraph (i), and
(y) instructions in accordance with the Depositary's and the Note
Registrar's procedures therefor, the Note Registrar shall reflect on
its books and records the date and a decrease in the principal amount
of such U.S. Global Note in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Note to be transferred and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Permanent Offshore Physical Notes of like tenor
and amount.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Note Registrar shall deliver only Notes that
bear the Private Placement Legend unless either (i) the circumstances
contemplated by the fourth paragraph of Section 201 (with respect to
Permanent Offshore Physical Notes) or paragraph (a)(i)(x), (d)(i) or
(e)(ii) of this Section 307 exist or (ii) there is delivered to the Note
Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act.
(g) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Note Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Note
Registrar."
SECTION 201. MISCELLANEOUS.
(a) THE TRUSTEE. The recitals contained herein shall be taken as the
statements of the Company and the Trustee shall not assume responsibility for,
or be liable in respect of, the correctness thereof. The Trustee makes no
representation as to,
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and shall not be liable or responsible for, the validity or sufficiency of this
Supplemental Indenture.
(b) LIMITED EFFECT. Except as expressly amended hereby, all of the
provisions, covenants, terms and conditions of the Indenture are ratified and
confirmed, and shall remain in full force.
(c) COUNTERPARTS. This Supplemental Indenture may be executed by one
or more parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(D) GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE
A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
XXXXXXX'X FOOD MARKETS, INC.,
a Texas corporation
By /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President,
Secretary & Treasurer
MARINE MIDLAND BANK,
as Trustee
By /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
