EXHIBIT 4.1
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SUPERVALU INC.,
ISSUER
AND
BANKERS TRUST COMPANY,
TRUSTEE
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THIRD SUPPLEMENTAL INDENTURE
TO
INDENTURE DATED AS OF JULY 1, 1987, AS AMENDED BY THE FIRST SUPPLEMENTAL
INDENTURE DATED AS OF AUGUST 1, 1990 AND THE SECOND SUPPLEMENTAL INDENTURE DATED
AS OF OCTOBER 1, 1992
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DATED AS OF SEPTEMBER 1, 1995
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THIRD SUPPLEMENTAL INDENTURE, dated as of September 1, 1995, between
SUPERVALU INC. (formerly Super Valu Stores, Inc.), a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx,
Xxxxxxxxx 00000, and BANKERS TRUST COMPANY, a banking corporation duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
certain Indenture, dated as of July 1, 1987, as amended by that certain First
Supplemental Indenture, dated as of August 1, 1990, and that certain Second
Supplemental Indenture, dated as of October 1, 1992 (said Indenture, as so
amended, being herein called the "Indenture"), pursuant to which one or more
series of unsecured debentures, notes or other evidences of indebtedness of the
Company (herein called the "Securities") may be issued from time to time. All
terms used in this Third Supplemental Indenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Company desires and has requested the Trustee to join with it in
the execution and delivery of this Third Supplemental Indenture for the purpose
of amending certain operating and financial covenants of the Company with
respect to series of Securities to be issued by the Company subsequent to the
date hereof.
Section 901(9) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of Securities of any
series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Third Supplemental Indenture is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Third Supplemental
Indenture has been authorized.
All things necessary to make this Third Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to the Indenture have been done.
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NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities and any coupons appertaining thereto by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities of any series thereof or of any coupons appertaining
thereto, as follows:
ARTICLE ONE
SECTION 101. Subsection (b) of Section 1007 of the Indenture is
hereby amended in its entirety as follows:
"(b) The provisions of Subsection (a) of this Section 1007 shall not
apply (x) when a determination is made in respect of any series of Securities
issued prior to October 1, 1992, to the issuance, assumption or guarantee by the
Company or any Domestic Subsidiary of Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other Debt of the Company and its Domestic Subsidiaries
secured by mortgages (other than mortgages permitted by Subsection (a) of this
Section 1007) which would otherwise be subject to the foregoing restrictions and
the Value of all Sale and Lease-back Transactions in existence at such time
(other than any Sale and Lease-back Transaction which if such Sale and Lease-
back Transaction had been a mortgage, would have been permitted by clause (i) of
Section 1007(a) and other than Sale and Lease-back Transactions as to which
application of amounts have been made in accordance with clause (b) of Section
1008) does not at the time exceed 5% of Consolidated Net Tangible Assets, (y)
when a determination is made in respect of any series of Securities issued on or
after October 1, 1992 and prior to September 1, 1995, to the issuance,
assumption or guarantee by the Company or any Domestic Subsidiary of Debt
secured by a mortgage which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with all other Debt of
the Company and its Domestic Subsidiaries secured by mortgages (other than
mortgages permitted by Subsection (a) of this Section 1007) which would
otherwise be subject to the foregoing restrictions and the Value of all Sale and
Lease-back Transactions in existence at such time (other than any Sale and
Lease-back Transaction which if such Sale and Lease-back Transaction had been a
mortgage, would have been permitted by clause (i) of Section 1007(a) and other
than Sale and Lease-back Transactions as to
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which application of amounts have been made in accordance with clause (b) of
Section 1008) does not at the time exceed 10% of Consolidated Net Tangible
Assets and (z) when a determination is made in respect of any series of
Securities issued on or after September 1, 1995, to the issuance, assumption or
guarantee by the Company or any Domestic Subsidiary of Debt secured by a
mortgage which would otherwise be subject to the foregoing restrictions up to an
aggregate amount which, together with all other Debt of the Company and its
Domestic Subsidiaries secured by mortgages (other than mortgages permitted by
Subsection (a) of this Section 1007) which would otherwise be subject to the
foregoing restrictions and the Value of all Sale and Lease-back Transactions in
existence at such time (other than any Sale and Lease-back Transaction which if
such Sale and Lease-back Transaction had been a mortgage, would have been
permitted by clause (i) of Section 1007(a) and other than Sale and Lease-back
Transactions as to which application of amounts have been made in accordance
with clause (b) of Section 1008) does not at the time exceed the greater of
$200,000,000 or 10% of Consolidated Net Tangible Assets."
SECTION 102. The Company hereby certifies that the amendments to the
Indenture set forth in this Third Supplemental Indenture do not adversely affect
in any material respect the interests of the Holders of Securities of any series
issued prior to November 1, 1994. The Company hereby covenants and agrees that
(a) the Company shall comply with Sections 1007 and 1008 of the Indenture, as
amended by Section 101 of this Third Supplemental Indenture, as they apply by
their terms to Securities of any series and (b) the Company shall confirm to the
Trustee annually its compliance with Sections 1007 and 1008 of the Indenture, as
amended by Section 101 of this Third Supplemental Indenture, as they apply by
their terms to Securities of any series, in the certificate referred to in
Section 704(4) of the Indenture; provided however, that, consistent with the
provisions of paragraph (4) of Section 501 of the Indenture, a default in the
performance, or breach, of the covenants set forth in Sections 1007 and 1008 of
the Indenture, as amended by Section 101 of this Third Supplemental Indenture,
as they apply by their terms to Securities of any series, shall constitute such
a default or breach only with respect to Securities of such series.
ARTICLE TWO
SECTION 201. For all purposes of this Third Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture; and (ii)
the words "herein," "hereof" and "hereby" and other words of similar import used
in this Third Supplemental Indenture refer to this Third
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Supplemental Indenture as a whole and not to any particular section hereof.
SECTION 202. Except as expressly amended hereby, the Indenture is in
all respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect.
SECTION 203. This Third Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
SECTION 204. This Third Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument.
SECTION 205. The Trustee makes no representation as to the validity
or sufficiency of this Third Supplemental Indenture.
SECTION 206. The Recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for their
correctness.
SECTION 207. This instrument shall be deemed to be a contract made
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 the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
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.
SUPERVALU INC.
[SEAL]
By /s/ Xxx X. Xxxxxxxx
________________________________
Name: Xxx X. Xxxxxxxx
Title: Vice President and Treasurer
Attest:
By /s/ Xxxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Corporate Secretary
BANKERS TRUST COMPANY
[SEAL]
By /s/ Xxxxx Xxxxxxx
_________________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Attest:
By /s/ Xxxxxxx Xxxxxxx
_________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
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STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the 29th of September, 1995, before me personally came Xxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that she
is Vice President and Treasurer of SUPERVALU INC., one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she signed her name thereto by like authority.
Xxxxx X. Xxxxxxx
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Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 29th of September, 1995, before me personally came Xxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that she
is Assistant Vice President of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she signed her name thereto by like authority.
Xxxxxxxx Xxxxxx
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Notary Public
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