` Exhibit T3C
RITE AID CORPORATION
as Issuer
and
BNY MIDWEST TRUST COMPANY
as Trustee
Indenture
Dated as of March , 2002
$149,500,000 Senior Secured Notes due March 15, 2006
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Other Provisions of General Application........................................1
SECTION 1.01. Definitions........................................................................2
SECTION 1.02. Compliance Certification and Opinions.............................................22
SECTION 1.03. Form of Documents Delivered To Trustee............................................23
SECTION 1.04. Acts of Holders; Record Date......................................................24
SECTION 1.05. Notices, Etc., To Trustee and the Company.........................................25
SECTION 1.06. Notice To Holders; Waiver.........................................................25
SECTION 1.07. Conflict with Trust Indenture Act.................................................25
SECTION 1.08. Effect of Headings and Table of Contents..........................................26
SECTION 1.09. Successors and Assigns............................................................26
SECTION 1.10. Separability Clause...............................................................26
SECTION 1.11. Benefits of Indenture.............................................................26
SECTION 1.12. Governmental Law..................................................................26
SECTION 1.13. Legal Holidays....................................................................26
ARTICLE II Security Forms...............................................................................27
SECTION 2.01. Forms Generally; Initial Forms of Securities......................................27
SECTION 2.02. Form of Face of Security..........................................................27
ARTICLE III The Securities..............................................................................36
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 and Other Securities............................................37
SECTION 3.06. Registration, Registration of Transfer and Exchange...............................38
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities..................................40
SECTION 3.08. Payment of Interest; Interest Rights Preserved....................................40
SECTION 3.09. Persons Deemed Owners.............................................................41
SECTION 3.10. Cancellation......................................................................42
SECTION 3.11. Cusip Numbers.....................................................................42
SECTION 3.12. Transfer Prior to the Release Date................................................42
SECTION 3.13. Transfers to Affiliates of the Company............................................42
SECTION 3.14. Cancellation of Securities and Return of Interest to the Company..................43
ARTICLE IV Satisfaction and Discharge...................................................................43
SECTION 4.01. Satisfaction and Discharge of Indenture...........................................43
SECTION 4.02. Application of Trust Money........................................................44
ARTICLE V Remedies......................................................................................45
SECTION 5.01. Events of Default.................................................................45
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment................................47
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................48
SECTION 5.04. Trustee May File Proofs of Claim..................................................49
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.......................49
SECTION 5.06. Application of Money Collected....................................................50
SECTION 5.07. Limitation on Suits...............................................................50
SECTION 5.08. Unconditional Right of Holders To Receive Principal and Interest..................51
SECTION 5.09. Restoration of Rights and Remedies................................................51
SECTION 5.10. Rights and Remedies Cumulative....................................................51
SECTION 5.11. Delay or Omission Not Waiver......................................................51
SECTION 5.12. Control by Holders................................................................51
SECTION 5.13. Waiver of Past Defaults...........................................................52
SECTION 5.14. Undertaking for Costs.............................................................52
SECTION 5.15. Waiver of Stay or Extension Laws..................................................52
SECTION 5.16. Enforcement of Remedies...........................................................52
ARTICLE VI The Trustee..................................................................................53
SECTION 6.01. Certain Duties and Responsibilities...............................................53
SECTION 6.02. Notice of Defaults................................................................53
SECTION 6.03. Certain Rights of Trustee.........................................................53
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities............................55
SECTION 6.05. May Hold Securities...............................................................55
SECTION 6.06. Money Held in Trust...............................................................55
SECTION 6.07. Compensation and Reimbursement....................................................55
SECTION 6.08. Disqualification; Conflicting Interest............................................56
SECTION 6.09. Corporate Trustee Required; Eligibility...........................................56
SECTION 6.10. Resignation and Removal; Appointment of Successor.................................57
SECTION 6.11. Acceptance of Appointment by Successor............................................58
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.......................58
SECTION 6.13. Preferential Collection of Claims Against Company.................................59
ARTICLE VII Holders' Lists and Reports by Trustee and Company...........................................59
SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders.........................59
SECTION 7.02. Preservation of Information; Communications to Holders............................59
SECTION 7.03. Reports by Trustee................................................................60
SECTION 7.04. Reports by Company................................................................60
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease.......................................60
SECTION 8.01. Company and the Subsidiary Guarantors May Consolidate, Etc.,
Only on Certain Terms...........................................................60
SECTION 8.02. Successor Substituted.............................................................62
ARTICLE IX Supplemental Indentures......................................................................63
SECTION 9.01. Supplemental Indentures Without Consent of Holders................................63
SECTION 9.02. Supplemental Indentures with Consent of Holders...................................64
SECTION 9.03. Execution of Supplemental Indentures..............................................65
SECTION 9.04. Effect of Supplemental Indentures.................................................65
SECTION 9.05. Conformity with Trust Indenture Act...............................................66
SECTION 9.06. Reference in Securities to Supplemental Indentures................................66
ARTICLE X Covenants.....................................................................................66
SECTION 10.01. Payment of Principal and Interest.................................................66
SECTION 10.02. Maintenance of Office or Agency...................................................66
SECTION 10.03. Money for Security Payments To Be Held in Trust...................................67
SECTION 10.04. Corporate Existence...............................................................68
SECTION 10.05. Maintenance of Properties.........................................................68
SECTION 10.06. Payment of Taxes and Other Claims.................................................68
SECTION 10.07. Insurance.........................................................................68
SECTION 10.08. Restrictions on Funded Debt of Restricted Subsidiaries............................69
SECTION 10.09. Restriction on Sales with Leases Back.............................................69
SECTION 10.10. Restrictions on Secured Debt......................................................70
SECTION 10.11. Restrictions on Impairment of Security Interest...................................71
SECTION 10.12. Restrictions on Amendments to Collateral Documents................................71
SECTION 10.13. Future Subsidiary Guarantors......................................................72
SECTION 10.14. Application of Collateral Proceeds................................................72
SECTION 10.15. Restrictions on Permitting Unrestricted Subsidiaries
To Become Restricted Subsidiaries...............................................74
SECTION 10.16. Statement by Officers as to Default...............................................74
SECTION 10.17. Waiver of Certain Covenants.......................................................74
SECTION 10.18. Further Actions...................................................................75
ARTICLE XI Redemption of Securities.....................................................................75
SECTION 11.01. Right of Redemption...............................................................75
SECTION 11.02. Election To Redeem; Notice To Trustee.............................................75
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed.................................75
SECTION 11.04. Notice of Redemption..............................................................76
SECTION 11.05. Deposit of Redemption Price.......................................................76
SECTION 11.06. Securities Payable on Redemption Date.............................................76
SECTION 11.07. Securities Redeemed in Part.......................................................77
ARTICLE XII Defeasance and Covenant Defeasance..........................................................77
SECTION 12.01. Company's Option To Effect Defeasance or Covenant Defeasance......................77
SECTION 12.02. Defeasance and Discharge..........................................................77
SECTION 12.03. Covenant Defeasance...............................................................78
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance...................................78
SECTION 12.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions.............................80
SECTION 12.06. Reinstatement.....................................................................80
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture dated as of March o, 2002
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 is reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of March , 2002, among Rite Aid
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called "Rite Aid" or the "Company"), having its
principal office at 00 Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx, 00000, each of
the Subsidiary Guarantors named herein and BNY Midwest Trust Company, an
Illinois trust company, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of $149,500,000
aggregate principal amount of its Senior Secured Notes due March 15, 2006,
bearing interest at the interest rates set forth herein (the "Securities"), in
substantially the tenor and amount hereinafter set forth, and to provide
therefore, the Company has duly authorized the execution and delivery of this
Indenture.
The Securities shall initially be issued to First Union
National Bank as escrow agent (the "Escrow Agent") and will be held in escrow
until the Release Date pursuant to the Escrow Agreement. The Escrow Agreement
will provide that on the Release Date, the Securities will be transferred to
the Trustee to exchange the certificated Securities for one or more Global
Notes. If a Material Reversal occurs prior to the occurrence of the Release
Date, the Escrow Agent shall immediately transfer the Securities to the
Company for delivery to the Trustee for cancellation and the Escrow Agent
shall pay any and all interest previously paid by the Company, together with
any earnings thereon, to the Company in immediately available funds. The
Securities are subject to restrictions on transfer prior to the Release Date,
as set forth herein.
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 issuance of
the Securities to 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;
(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; and
(e) references to any agreement include any and all
amendments, modifications or supplements, entered into from time to
time.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Second Priority Debt" means any indebtedness
incurred by Rite Aid and guaranteed by the Subsidiary Guarantors after June
27, 2001, pursuant to the Second Priority Subsidiary Guarantee Agreement which
is secured by the Second Priority Collateral on a pari passu basis with the
other Second Priority Debt Obligations; provided, however, that (i) such
indebtedness is permitted to be incurred, secured and guaranteed on such basis
by each Senior Debt Document and each Second Priority Debt Document, (ii) the
aggregate amount of such Additional Second Priority Debt does not exceed
$300,000,000 at any time outstanding (it being understood that any amounts
incurred in excess of such amount will not at any time qualify as Additional
Second Priority Debt) and (iii) the Representative for the holders of such
Additional Second Priority Debt shall have become party to the Intercreditor
Agreement pursuant to, and by satisfying the conditions set forth in, Section
10.12 of the Intercreditor Agreement. Additional Second Priority Debt shall
include any Registered Equivalent Notes issued in exchange for Additional
Second Priority Debt initially sold in a Rule 144A or other private placement
transaction. Additional Second Priority Debt includes the Securities.
"Additional Second Priority Debt Documents" means, with
respect to any series, issue or class of Additional Second Priority Debt, the
promissory notes, indentures or other operative agreements evidencing or
governing such indebtedness, as furnished pursuant to Section 10.12 of the
Intercreditor Agreement.
"Additional Second Priority Debt Facility" means the
indenture or other governing agreement with respect to any Additional Second
Priority Debt.
"Additional Second Priority Debt Obligations" means, with
respect to any series, issue or class of Additional Second Priority Debt, (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 such
Additional Second Priority Debt, (ii) all other amounts payable by the Company
to the related Additional Second Priority Debt Parties under the related
Additional Second Priority Debt Documents and (iii) any renewals or extensions
of the foregoing.
"Additional Second Priority Debt Parties" means, with
respect to any series, issue or class of Additional Second Priority Debt, the
holders of such indebtedness, any trustee or agent therefor under any related
Additional Second Priority Debt Documents and the beneficiaries of each
indemnification obligation undertaken by Rite Aid or any Obligor under any
related Additional Second Priority Debt Documents, but shall not include the
Obligors or any controlled Affiliates thereof.
"Additional Senior Second Priority Debt" means any
indebtedness incurred by Rite Aid and guaranteed by the Subsidiary Guarantors
pursuant to the Second Priority Subsidiary Guarantee Agreement after June 27,
2001 which is secured by the Second Priority Collateral on a pari passu basis
with the Synthetic Lease Obligations; provided, however, that (i) such
indebtedness is permitted to be incurred, secured and guaranteed on such basis
by each Senior Debt Document and each Second Priority Debt Document, (ii) the
aggregate amount of such Additional Senior Second Priority Debt does not
exceed $93,000,000 at any time outstanding (it being understood that any
amounts incurred in excess of such amount will not at any time qualify as
Additional Senior Second Priority Debt) and (iii) the Representative for the
holders of such Additional Senior Second Priority Debt shall have become party
to the Intercreditor Agreement pursuant to, and by satisfying the conditions
set forth in, Section 10.12 of the Intercreditor Agreement. Additional Senior
Second Priority Debt shall include any Registered Equivalent Notes issued in
exchange for Additional Senior Second Priority Debt initially sold in a Rule
144A or other private placement transaction.
"Additional Senior Second Priority Debt Documents" means,
with respect to any series, issue or class of Additional Senior Second
Priority Debt, the promissory notes, indentures or other operative agreements
evidencing or governing such indebtedness, as furnished pursuant to Section
10.12 of the Intercreditor Agreement.
"Additional Senior Second Priority Debt Facility" means the
indenture or other governing agreement with respect to any Additional Senior
Second Priority Debt.
"Additional Senior Second Priority Debt Obligations" means,
with respect to any series, issue or class of Additional Senior Second
Priority Debt, (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 such Additional Senior Second Priority Debt, (ii)
all other amounts payable by the Company to the related Additional Senior
Second Priority Debt Parties under the related Additional Senior Second
Priority Debt Documents and (iii) any renewals or extensions of the foregoing.
"Additional Senior Second Priority Debt Parties" means, with
respect to any series, issue or class of Additional Senior Second Priority
Debt, the holders of such indebtedness, any trustee or agent therefore under
any related Additional Senior Second Priority Debt Documents and the
beneficiaries of each indemnification obligation undertaken by Rite Aid or any
Obligor under any related Additional Senior Second Priority Debt Documents,
but shall not include the Obligors or any controlled Affiliates thereof.
"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.
"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.
"Base Rate Borrowings" has the meaning set forth in the
Senior Credit Facility.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"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 or
Chicago, Illinois 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; 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.
"Co-Lead Counsel" means Xxxxx X. Xxxxxxx of Xxxxxxx Xxxxx
Xxxxxxx Xxxxx & Xxxxxx LLP and Xxxxxxx X. Xxxxxx of Xxxxxx & Xxxxxxxx, P.C.
"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 Representative" means Xxxxxxx Xxxxx Barney, or such
other nationally recognized investment banking firm as the Company shall
select in lieu thereof.
"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 Chicago, Illinois, 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.
"Escrow Agent" means First Union National Bank, pursuant to
the Escrow Agreement.
"Escrow Agreement" means that certain escrow agreement dated
as of the date hereof by and among the Company, Xxxxxxx Xxxxx Xxxxxxxxx &
Xxxxxxx, LLP, as counsel for the Company, the Co-Lead Counsel, on behalf of
the Class and Class Members (as such terms are defined in the Settlement and
Class Stipulation), and the Escrow Agent.
"Euro-Dollar Borrowings" has the meaning set forth in the
Senior Credit Facility.
"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 Note Documents" means the Exchange Notes, the
Exchange Notes Indenture, and the Exchange Notes Registration Rights
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 Exchange Notes,
(ii) all other amounts payable by the Company to the Exchange Note Parties
under the Exchange Note Documents, and (iii) any renewals and extensions of
the foregoing.
"Exchange Note Parties" means the holders of the Exchange
Notes, the Trustee and the beneficiaries of each indemnification obligation
undertaken by the Company or any other Obligor under any Exchange Note
Document but shall not include the Obligors or any controlled Affiliate
thereof.
"Exchange Notes" means the 12.5% Senior Secured Notes due
2006 issued pursuant to the Exchange Notes Indenture on June 27, 2001 and any
Registered Equivalent Notes issued in exchange therefor.
"Exchange Notes Indenture" means the Indenture dated as of
June 27, 2001, among Rite Aid, the Subsidiary Guarantors and State Street Bank
and Trust Company, as trustee, relating to the Exchange Notes.
"Exchange Notes Registration Rights Agreement" means the
Exchange and Registration Rights Agreement, dated as of June 27, 2001, among
the Company, each of the Subsidiary Guarantors and the holders from time to
time of the Exchange Notes as provided therein, as such agreement may be
amended from time to time.
"Finality Date" means the date when (i) entry of final
judgment in relation to each of the proceedings comprising the Litigation; and
(ii) the expiration of any time for appeal or review of such order and final
judgment, or, if any appeal is filed and not dismissed, after such order and
final judgment is upheld on appeal in all material respects and is no longer
subject to review upon appeal or review by writ of certiorari.
"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. Prior to the Release Date, the Escrow
Agent will be the only Holder of the Securities.
"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.
"Independent Financial Advisor" means Xxxxx Xxxxxxx of XX
Xxxxxxx & Co.; provided, however, if Xx. Xxxxxxx is unable or unwilling to
serve as Independent Financial Advisor, the Independent Financial Advisor will
be the Independent Financial Advisor Candidate chosen by the mutual agreement
of the Reset Agents.
"Independent Financial Advisor Candidate" means each of
Xxxxxx Xxxxxx of Xxxxxx & Co. Inc., Xxxxxxx Xxxxxx and Xxxxxxx Xxxxx &
Company.
"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.
"Initial Floating Interest Rate" for any month means the per
annum rate equal to the sum of (i) the average per annum rate for Euro-Dollar
Borrowings made under the Senior Credit Facility for such month, plus (ii) 375
basis points; provided, however, for any month that the Company has no
Euro-Dollar Borrowings, the Initial Floating Interest Rate for that month
shall be (i) the average per annum rate for Base Rate Borrowings made under
the Senior Credit Facility for such month, plus (ii) 375 basis points.
"Intercreditor Agreement" means the Collateral Trust and
Intercreditor Agreement, dated as of June 27, 2001, among the Company, the
Subsidiary Guarantors, the Second Priority Collateral Trustee, the Senior
Collateral Agent, State Street Bank and Trust Company, as trustee under the
Company's 10.50% Senior Secured Notes due 2002, Xxxxx Fargo Bank Northwest,
National Association, as collateral agent for the Synthetic Lease Parties
under the Synthetic Lease Documents, the Trustee and each Second Priority
Representative.
"Interest Payment Date" has the meaning set forth in Section
2.02.
"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.
"Litigation" means each of (i) In re Rite Aid Corporation
Securities Litigation, United States District Court, E.D. Pa., Master File No.
99-CV-1349 (SD) (consolidated with certain other class actions numbered:
99-1323, 99-1339, 99-1340, 99-1348, 99-1351, 99-1410, 99-1413, 99-1549,
99-1677, 99-1714, 99-1800, 99-1938, 99-1987, 99-2262, 99-5729, 99-5925,
55-6082; (ii) In re Rite Aid Corporation Derivative Litigation, District
Court, E.D. Pa., File No. 99-2493 (consolidated with case number 99-53335);
and (iii) In re Rite Aid Corporation Derivative Litigation vs. Xxxx Xxxxx,
Rite Aid Corp. et al., Xxxxxxxx Xxxxx xx Xxxxxxxx, XX-00000 (consolidated with
cases numbered: 17471, 17489 and 17494).
"Material Reversal" means the termination of the settlement
and class stipulation, dated as of December 18, 2000, United States District
Court Eastern District of Pennsylvania, Master File No. 99-CY-1349(SD) (the
"Settlement and Class Stipulation") pursuant to Section 24 of the Settlement
and Class Stipulation; as limited by Section 28 of the Settlement and Class
Stipulation.
"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.
"Monthly Interest Payment Date" has the meaning set forth in
Section 2.02.
"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.
"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 or interest on any Securities on behalf 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.
"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
Article XI of 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.
"Registered Equivalent Notes" means, with respect to any
notes originally issued in a Rule 144A or other private placement transaction
under the Securities Act of 1933, substantially identical notes issued in a
dollar for dollar exchange therefor pursuant to an exchange offer registered
with the SEC.
"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.
"Release Date" means the date the Securities are released
from escrow pursuant to the Escrow Agreement.
"Replacement Second Priority Debt" means indebtedness
incurred by Rite Aid after June 27, 2001 in exchange for, or the proceeds of
which are used to repay and refinance any Exchange Notes, Additional Second
Priority Debt or any other Replacement Second Priority Debt theretofore
issued, and which is guaranteed by the Subsidiary Guarantors pursuant to the
Second Priority Subsidiary Guarantee Agreement and secured on a pari passu
basis with any such Exchange Notes, Additional Second Priority Debt or
previously issued Replacement Second Priority Debt; provided, however, that
(i) the terms of any such Replacement Second Priority Debt and of the related
Replacement Second Priority Debt Documents are permitted by the Senior Loan
Documents, (ii) the maturity of such Replacement Second Priority Debt is no
earlier than the later of the maturity of the indebtedness being refinanced
and January 1, 2006, and the weighted average life thereof is no less than
that of the indebtedness being refinanced, (iii) the terms relating to
amortization and the other material terms of such Replacement Second Priority
Debt are no less favorable in any material respect of the Company and the
Subsidiaries or the Senior Bank Parties than the terms of any agreement or
instrument governing the indebtedness being refinanced and the interest rate
applicable thereto does not exceed then current market interest rates and (iv)
the principal amount of such Replacement Second Priority Debt does not exceed
the principal amount of the indebtedness being refinanced which is outstanding
immediately prior to such refinancing. Replacement Second Priority Debt shall
include any Registered Equivalent Notes issued in exchange for Replacement
Second Priority Debt initially sold in a Rule 144A or other private placement
transaction.
"Replacement Second Priority Debt Documents" means, with
respect to any series, issue or class of Replacement Second Priority
indebtedness, the promissory notes, indentures or other operative agreements
evidencing or governing such indebtedness, as furnished pursuant to Section
10.12 of the Intercreditor Agreement.
"Replacement Second Priority Debt Facility" means the
indenture or other governing agreement with respect to any Replacement Second
Priority Debt.
"Replacement Second Priority Debt Obligations" means, with
respect to any series, issue or class of Replacement Second Priority Debt, (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 such
Replacement Second Priority Debt, (ii) all other amounts payable by the
Company to the related Replacement Second Priority Debt parties under the
related Replacement Second Priority Debt Documents and (iii) any renewals or
extensions of the foregoing.
"Replacement Second Priority Debt Parties" means, with
respect to any series, issue or class of Replacement Second Priority Debt, the
holders of such indebtedness, any trustee or agent therefor under any related
Replacement Second Priority Debt Documents and the beneficiaries of each
indemnification obligation undertaken by Rite Aid or any Obligor under any
related Replacement Second Priority Debt Documents, but shall not include the
Obligors or any controlled Affiliates thereof.
"Replacement Senior Second Priority Debt" means indebtedness
incurred by Rite Aid after June 27, 2001 in exchange for, or the proceeds of
which are used to repay and refinance, any Attributable Debt in respect of
Synthetic Lease Obligations, any Additional Senior Second Priority Debt or any
other Replacement Senior Second Priority Debt theretofore issued, and which is
guaranteed by the Subsidiary Guarantors pursuant to the Second Priority
Subsidiary Guarantee Agreement and secured on a pari passu basis with any such
Synthetic Lease Obligations, Additional Senior Second Priority Debt or
previously issued Replacement Senior Second Priority Debt; provided, however,
that (i) the terms of any such Replacement Senior Second Priority Debt and of
the related Replacement Senior Second Priority Debt Documents are permitted by
the Senior Loan Documents, (ii) the maturity of such Replacement Senior Second
Priority Debt is no earlier than the later of the maturity of the indebtedness
being refinanced and January 1, 2006, and the weighted average life thereof is
no less than that of the indebtedness being refinanced, (iii) the terms
relating to amortization and the other material terms of such Replacement
Senior Second Priority Debt are no less favorable in any material respect to
the Company and the Subsidiaries or the Senior Bank Parties than the terms of
any agreement or instrument governing the indebtedness being refinanced and
the interest rate applicable thereto does not exceed then current market
interest rates and (iv) the principal amount (or Attributable Debt amount) of
such Replacement Senior Second Priority Debt does not exceed the principal
amount (or Attributable Debt amount) of the indebtedness or Attributable Debt
being refinanced which is outstanding immediately prior to such refinancing.
Replacement Senior Second Priority Debt shall include any Registered
Equivalent Notes issued in exchange for Replacement Senior Second Priority
Debt initially sold in a Rule 144A or other private placement transaction.
"Replacement Senior Second Priority Debt Documents" means,
with respect to any series, issue or class of Replacement Senior Second
Priority Debt, the promissory notes, indentures or other operative agreements
evidencing or governing such indebtedness, as furnished pursuant to Section
10.12 of the Intercreditor Agreement.
"Replacement Senior Second Priority Debt Facility" means the
indenture or other governing agreement with respect to any Replacement Senior
Second Priority Debt.
"Replacement Senior Second Priority Debt Obligations" means,
with respect to any series, issue or class of Replacement Senior Second
Priority Debt, (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 such Replacement Senior Second Priority Debt, (ii)
all other amounts payable by the Company to the related Replacement Senior
Second Priority Debt Parties under the related Replacement Senior Second
Priority Debt Documents and (iii) any renewals or extensions of the foregoing.
"Replacement Senior Second Priority Debt Parties" means,
with respect to any series, issue or class of Replacement Senior Second
Priority Debt, the holders of such indebtedness, any trustee or agent therefor
under any related Replacement Senior Second Priority Debt Documents and the
beneficiaries of each indemnification obligation undertaken by Rite Aid or any
Obligor under any related Replacement Senior Second Priority Debt Documents,
but shall not include the Obligors or any controlled Affiliates thereof.
"Representative of the Holders" means X.X. Xxxx & Co., and
its successors, or such other nationally recognized investment banking firm as
the Co-Lead Counsel shall select in lieu thereof.
"Representatives" means each of the Senior Collateral Agent,
the trustee under the 10.50% Note Indenture and the Second Priority
Representatives.
"Reset Agents" means each of the Company Representative and
the Representative for the Holders.
"Reset Date" means the date that the Reset Agents, or the
Independent Financial Advisor, as the case may be, determine the Reset
Interest Rate.
"Reset Interest Rate" means the rate per annum determined by
the Reset Agents (or, in the event that the Reset Agents can not agree on the
Reset Interest Rate by the third Business Day following the Finality Date, by
the Independent Financial Advisor) as the interest rate that the Securities
should bear, together with any other changes to the terms of the Securities
and any other additional consideration that the Reset Agents or the
Independent Financial Advisor, as the case may be, determine are reasonably
necessary, so that the Securities will have a market value of 100% of their
principal amount on the Finality Date; provided, however, the Reset Interest
Rate determined by the Independent Financial Advisor shall be (i) no less
favorable than the rate per annum together with any proposed changes to the
terms of the Securities and any other proposed additional consideration
determined by the Company Representative, and (ii) no more favorable than the
rate per annum together with any proposed changes to the terms of the
Securities and any other proposed additional consideration determined by the
Representative for the Holders. In making the determination of the Reset
Interest Rate, the Reset Agents shall take such steps and make such inquiries
as the Reset Agents deem necessary and appropriate. The Independent Financial
Advisor shall determine the Reset Interest Rate within three Business Days of
the Independent Financial Advisor's appointment as Independent Financial
Advisor and in making such determination, the Independent Financial Advisor
shall take such steps and make such inquiries as the Independent Financial
Advisor deems necessary and appropriate.
In determining the interest rate and other changes to the
terms of the Securities, if any, and any additional consideration necessary so
that the Securities will have a market value of 100% of their principal amount
on the Finality Date, the Reset Agents and the Independent Financial Advisor
(if one is chosen) acknowledge that it is the intention of the Co-Lead Counsel
for and on behalf of the Class to sell, or commit to sell, all of the
Outstanding Securities that the Class beneficially owns, as soon as reasonably
possible after the Reset Date, and that the Reset Agents and the Independent
Financial Advisor (if one is chosen) will be guided by the principle that the
"market value" of the Securities for purposes of this Indenture means the
price at which the entirety of the Outstanding Securities beneficially owned
by the Class could reasonably be sold (or committed to be sold) to a willing
buyer (or limited number of buyers) on or immediately after the Finality Date,
where the buyer is not under any compulsion to buy and has reasonable
knowledge of material public information. The Reset Agents and the Independent
Financial Advisor, if any, shall be free, but not required, to solicit, which
solicitations are not on behalf of the Company, bona fide offers and/or
indications of interest from potential buyers of the Securities based on one
or more prospective Reset Interest Rates, or to solicit advice from potential
buyers as to what interest rate and/or changes to the terms of the Securities,
if any, and/or any additional consideration would be required to generate a
bid equal to 100% of the principal amount of the Securities on the Finality
Date. If the Reset Agents agree on the Reset Interest Rate, the Reset Agents
will have no further duties or obligations hereunder. If the Reset Agents are
unable to agree on the Reset Interest Rate by the third Business Day following
the Finality Date, each Reset Agent will disclose to the Co-Lead Counsel and
the Independent Financial Advisor the basis for his or her proposed Reset
Interest Rate, including a summary of actions taken, responses to market
inquiries, if any, any indication of interest and potential purchasers of the
Securities. After the Reset Date, the Reset Agents and the Independent
Financial Advisor (if one is chosen) will be permitted to discuss indications
of interest with Co-Lead Counsel.
"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 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.
"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.
"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 Exchange Note
Documents, the Synthetic Lease Documents, the Additional Senior Second
Priority Debt Documents, if any, the Additional Second Priority Debt
Documents, if any, the Replacement Senior Second Priority Debt Documents, if
any, the Replacement Second Priority Debt Documents, if any, and the Second
Priority Collateral Documents.
"Second Priority Debt Obligations" means the collective
reference to the Exchange Note Obligations, the Synthetic Lease Obligations,
the Additional Senior Second Priority Debt Obligations, if any, the Additional
Second Priority Debt Obligations, if any, the Replacement Senior Second
Priority Debt Obligations, if any, and the Replacement Second Priority Debt
Obligations, if any.
"Second Priority Debt Parties" means the Exchange Note
Parties, the Synthetic Lease Parties, the Additional Senior Second Priority
Debt Parties, if any, the Additional Second Priority Debt Parties, if any, the
Replacement Senior Second Priority Debt Parties, if any, the Replacements
Second Priority Debt Parties, if any, and the Second Priority Collateral
Trustee.
"Second Priority Facilities" means the Exchange Notes
Indenture, the Synthetic Lease Facilities, any Additional Senior Second
Priority Debt Facilities, including this Indenture, any Additional Second
Priority Debt Facilities, any Replacement Senior Second Priority Debt
Facilities and any Replacement Second Priority Debt Facilities.
"Second Priority Indemnity, Subrogation and Contribution
Agreement" means the Second Priority Indemnity, Subrogation and Contribution
Agreement, dated as of June 27, 2001, 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 a
Second Priority Facility, the Trustee, the collateral agent under the
Synthetic Lease Facility and the administrative agent or agent under each
other Second Priority Facility, as the case may be, and each of their
successors in such capacities.
"Second Priority Subsidiary Guarantee Agreement" means the
Second Priority Subsidiary Guarantee Agreement, dated as of June 27, 2001,
made by the Subsidiary Guarantors (including any additional Subsidiary
Guarantor becoming party thereto after June 27, 2001) 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 27, 2001, made
by the Subsidiary Guarantors (including any additional Subsidiary Guarantor
becoming party thereto after June 27, 2001) in favor of the Second Priority
Collateral Trustee for the benefit of the Second Priority Debt Parties.
"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.
"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).
"Semi-Annual Interest Payment Date" shall have the meaning
set forth in Section 2.02.
"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 (x) prior to June 27, 2001 with any counterparty
that was a Senior Bank (or an Affiliate thereof) on June 27, 2001 or (y) on or
after June 27, 2001 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 June 27, 2001.
"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.
"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 Permitted Disposition (as
defined in the Collateral Documents), or (ii) a Casualty/Condemnation with
respect to Senior Collateral.
"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 27, 2001, as amended on September 19, 2001 and as amended as
of February 22, 2002 (as amended, modified, supplemented or Refinanced from
time to time), among the Company, the Senior Banks and the Senior Collateral
Agent.
"Senior Debt Documents" means the Senior Loan Documents and
the 10.50% Note Documents.
"Senior Facilities" means the Senior Credit Facility and the
10.50% Note Indenture.
"Senior Indemnity, Subrogation and Contribution Agreement"
means the Senior Indemnity, Subrogation and Contribution Agreement, dated as
of June 27, 2001 among the Company, the Subsidiary Guarantors (including
Subsidiary Guarantors becoming party thereto after June 27, 2001) 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 10.50% Note Obligations.
"Senior Secured Parties" means (a) the Senior Bank Parties
and (b) the 10.50% Note Parties.
"Senior Subsidiary Guarantee Agreement" means the Senior
Subsidiary Guarantee Agreement, made by the Subsidiary Guarantors (including
Subsidiary Guarantors that become parties thereto after June 27, 2001) in
favor of the Senior Collateral Agent for the benefit of the Senior Parties.
"Senior Subsidiary Security Agreement" means the Senior
Subsidiary Security Agreement, made by the Subsidiary Guarantors (including
Subsidiary Guarantors that become parties thereto after June 27, 2001) in
favor of the Senior Collateral Agent for the benefit of the Senior Secured
Parties.
"Specified Debt Financings" means the Additional Senior
Second Priority Debt, the Additional Second Priority Debt and any Debt or
Attributable Debt permitted by Section 5.20(i) of the Senior Credit Facility.
"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" means a lease which is treated as an
operating lease under generally accepted accounting principles but as
ownership of the leased asset by the lessee for purposes of the Internal
Revenue Code.
"Synthetic Lease Documents" means the documents governing
the Synthetic Lease Facility.
"Synthetic Lease Facility" means the Synthetic Lease entered
into by Rite Aid Realty Corp. and guaranteed by Rite Aid on June 27, 2001.
"Synthetic Lease Obligations" means all rent and
supplemental rent, all fees and all other expenses or amounts payable by Rite
Aid Realty Corp. or Rite Aid to any Synthetic Lease Parties under any
Synthetic Lease Document.
"Synthetic Lease Parties" means all parties to the Synthetic
Lease Documents other than the Obligors.
"10.50% Note Documents" means the 10.50% Notes and the
10.50% Note Indenture and Exchange and Registration Rights Agreement among the
State Street Bank and Trust Company, as trustee, Rite Aid and the Subsidiary
Guarantors.
"10.50% Note Indenture" means the Indenture dated as of June
14, 2000, among Rite Aid, the Subsidiary Guarantors and State Street Bank and
Trust Company, as trustee, relating to the 10.50% Notes.
"10.50% Note Obligation Payment Date" means the date on
which all 10.50% Note Obligations have been paid in full.
"10.50% 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 10.50% Notes,
(ii) all other amounts payable by the Company to the 10.50% Note Parties under
the 10.50% Note Documents, and (iii) any renewals or extensions of any of the
foregoing.
"10.50% Note Parties" means the holders from time to time of
the 10.50% Notes, the trustee under the 10.50% Note Indenture and the
beneficiaries of each indemnification obligation undertaken by Rite Aid or any
other Obligor under any 10.50% Note Document, but shall not include the
Obligors or any controlled Affiliate thereof.
"10.50% Notes" means the 10.50% Senior Secured Notes due
2002 of Rite Aid issued pursuant to the 10.50% Note Indenture prior to June
27, 2001 and any Registered Equivalent Notes issued in exchange therefor.
"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 Debt 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. Governmental 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 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 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 Securities shall be issued
in the form of Securities other than Global Securities, and on the Release
Date, the Securities shall be exchanged for 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).
SECTION 2.02. Form of Face of Security. [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
Senior Secured Notes due March 15, 2006
No. CUSIP: ______
Rite Aid Corporation, a Delaware corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to
___________ the principal sum set forth on Schedule A hereof on March 15,
2006, 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. Up to and including the Finality Date, the Outstanding Securities
shall bear interest at the Initial Floating Interest Rate, and such
interest shall be payable monthly by the Company in arrears on the first
day of each month, or if such day is not a Business Day, on the next
Business Day, and, for the month of the Finality Date, interest shall be
payable on the Release Date (each, a "Monthly Interest Payment Date"). All
interest paid by the Company prior to and including the Release Date shall
be held by the Escrow Agent pursuant to the Escrow Agreement, unless the
Escrow Agent is required to earlier return such interest to the Company.
Following the Finality Date, the Outstanding Securities shall bear interest
at the Reset Interest Rate, and such interest shall be payable
semi-annually in arrears on March 15 and September 15 of each year, or if
such date is not a Business Day on the next Business Day, beginning on the
March 15 or September 15 following the Reset Date (each, a "Semi-Annual
Interest Payment Date", and together with each Monthly Interest Payment
Date, an "Interest Payment Date"). Interest on any Interest Payment Date
shall be paid at such office or agency specified above, 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, from the Interest
Payment Date to which interest on the Securities has been paid preceding
the date hereof (unless the date hereof is an Interest Payment Date to
which interest has been paid, in which case from the date hereof, or unless
the date hereof is prior to any Interest Payment Date, from March , 2002)
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
Interest Payment Date, then this Security shall bear interest from the last
date to which interest has been paid, or, if no interest has been paid,
from March , 2002.
The Company shall notify the Trustee (i) on a monthly basis
of the Initial Floating Interest Rate until the Reset Date, and (ii) as soon
as reasonably possible following the Reset Date of the Reset Interest Rate.
The Company's obligation to pay interest at the Reset Interest Rate following
the Finality Date shall not be affected by the date on which the Reset
Interest Rate is determined or the date the Company notifies the Trustee of
the Reset Interest Rate.
The interest so payable on any Interest Payment Date 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 or Chicago, Illinois 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, whether based upon the Initial Floating Interest
Rate or the Reset Interest Rate, 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 ten 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: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the Indenture.
BNY MIDWEST TRUST COMPANY,
as Trustee
By:____________________________
Name:
Title:
Form of Reverse of Security
RITE AID CORPORATION
Senior Secured Notes due March 15, 2006
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 March ,
2002 (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 BNY Midwest 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.
This Security is the Senior Secured Notes due March 15, 2006
of the Company and is limited in aggregate principal amount to $149,500,000.
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.
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 to the
Holders thereof. Any redemption shall be at a redemption price equal to 100%
of the principal amount of the Securities to be redeemed, plus accrued and
unpaid interest, if any, to the date of redemption.
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.
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.
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 will be shared equally and ratably with future lenders under
the Additional Second Priority Debt Facilities, if any, 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.
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.
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, as the case may be; (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; (h) reduce the Redemption Price payable upon the redemption of any
Securities or change the time at which any Securities may be redeemed; (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; or (j) add any permitted investments of
Securities Collateral Proceeds or add any mechanics regarding the security
interest in the Securities Collateral Account.
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; (f) to include any
legends to be included on the Securities if held by an Affiliate of the
Company; (g) to add any mechanics regarding the escrow of the Securities prior
to the Finality Date; (h) to make any provisions in order to facilitate the
determination of the Reset Interest Rate, to facilitate the transfer of the
Securities by the Escrow Agent, or to exchange certificated Securities for
Global Notes; (i) to make such changes to the timing of the Securities
(commencing on or after the Release Date) that the Reset Agents or the
Independent Financial Advisor, as the case may be, determine are reasonably
necessary so that in combination with the Reset Interest Rate and any
additional consideration, the Securities will have a market value of 100% of
their principal amount on the Finality Date; or (j) to make any other change
that does not adversely affect the rights of any Holder of Securities.
Denominations; Transfer. The Securities are issuable in
registered form without coupons in denominations of $100 and any integral
multiple thereof.
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.
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.
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 Principal Outstanding Outstanding
Date Amount Principal Amount Principal Amount Notation
---- ----------------- ---------------- ---------------- --------
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The Securities shall be known
and designated as the "Senior Secured Notes due March 15, 2006". The aggregate
amount of Securities which may be authenticated and delivered hereunder is
limited to $149,500,000, 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 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
$100 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.
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 and Other Securities. (a)
The Company may initially issue the Securities as Securities other than Global
Securities. However, the initial issuance of Securities other than Global
Securities does not preclude the issuance of Global Securities upon the
deposit of such other Securities with the Trustee, as custodian for the
Depositary.
(b) 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.
(c) 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.
(d) 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, except 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.
(e) 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.
(f) 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. (a) 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.
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.
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.
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 (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. 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.
SECTION 3.12. Transfer Prior to the Release Date.
Notwithstanding anything to the contrary contained in this Indenture, the
Securities or the Escrow Agreement, except for the Company's deposit of the
Securities with the Escrow Agent pursuant to the Escrow Agreement, the
Securities may not be transferred, assigned, sold, pledged, hypothecated or
otherwise disposed of in any manner prior to the Release Date, without the
prior written consent of the Company.
SECTION 3.13. Transfers to Affiliates of the Company.
Notwithstanding anything to the contrary contained in this Indenture, the
Securities or the Escrow Agreement, the Escrow Agent shall not be permitted to
transfer the Securities to any Affiliate of the Company without the prior
written consent of the Company and without such Securities bearing a legend
restricting transfer until such time as the Securities are registered under
the Securities Act of 1933, as amended, or unless the Company has received an
opinion of counsel or other evidence satisfactory to the Company and its
counsel that registration is not required.
SECTION 3.14. Cancellation of Securities and Return of
Interest to the Company. Upon the occurrence of a Material Reversal, the
Escrow Agent shall immediately transfer the Securities to the Company for
delivery to the Trustee for cancellation, and the Escrow Agent shall pay any
and all interest previously paid by the Company, together with any earnings
thereon, to the Company in immediately available funds.
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 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 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 any Security at its
Maturity; or
(2) failure to pay any interest upon any Security when it
becomes due and payable, and such default continues 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
Second Priority Facilities which results in the acceleration of the
maturity of any of the Second Priority Facilities or permits the
lenders under any of the Second Priority Facilities, 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 Second Priority 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 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 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 interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal 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 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 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 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 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 (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 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.
Upon execution of this Indenture, the Trustee will exercise a joinder or like
agreement to the Intercreditor Agreement.
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.
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.
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) 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. 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
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; or
(6) to include any legends to be included on the Securities
if held by an Affiliate of the Company; or
(7) to add any mechanics regarding the escrow of the
Securities prior to the Finality Date; or
(8) to make any provisions in order to facilitate the
determination of the Reset Interest Rate, to facilitate the transfer
of the Securities by the Escrow Agent, or to exchange certificated
Securities for Global Notes; or
(9) to make such changes to the terms of the Securities
(commencing on or after the Release Date) that the Reset Agents or
the Independent Financial Advisor, as the case may be, determine are
reasonably necessary so that in combination with the Reset Interest
Rate and any additional consideration, the Securities will have a
market value of 100% of their principal amount on the Finality Date; or
(10) to add any permitted investments of Securities
Collateral Proceeds or to add any mechanics regarding the security
interest in the Securities Collateral Account.
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 change the place
of payment where, or the coin or currency in which, any Security 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, as the case
may be, 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,
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 and Interest. The
Company will duly and punctually pay the principal of 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 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 or interest on Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal 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 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 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 or
interest on any Security and remaining unclaimed for two years after such
principal 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, 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, 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 date hereof; 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, 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 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 date hereof, as may be
amended from time to time. The Trustee is hereby authorized and directed to
execute any amendment, waiver or modification entered into in accordance
with this Section 10.12.
SECTION 10.13. Future Subsidiary Guarantors. The Company
shall cause each Person that either (a) becomes a domestic Subsidiary
following the date hereof 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 so that after giving effect to any required
prepayment of the Senior Obligations, the Synthetic Lease Obligations and the
Additional Senior Second Priority Obligations, if any, in connection with such
Senior Collateral Disposition, a pro rata portion of the remainder 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 or an Event of Default, 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 cancellation 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, or, at the Company's
discretion, such excess may be deposited into an account for the
sole benefit of the Securities, which is controlled by the
Trustee.
(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 $100, 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.
SECTION 10.18. Further Actions. The Company and the
Subsidiary Guarantors agree to make such changes to the terms of the
Securities (commencing on or after the Release Date) that the Reset Agents or
the Independent Financial Advisor, as the case may be, determine are
reasonably necessary so that in combination with the Reset Interest Rate, the
Securities will have a market value of 100% of their principal amount on the
Finality Date.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. The Company may redeem
all or a portion of the Securities pursuant to the procedures set forth in
this Article XI at a redemption price equal to 100% of the principal amount of
Securities to be redeemed, plus accrued and unpaid interest, if any, to the
applicable Redemption Date. 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 $100.
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 $100 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $100.
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,
(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 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. Beginning on the day following the Finality Date, the
Company may at its option by Board Resolution, at any time, 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 (i) the
Second Priority Subsidiary Guarantee Agreement and the Second Priority
Collateral Documents, and (ii) the Second Priority Lien and the Second
Priority Mortgages, as they pertain to the Securities, shall be released. 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 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 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 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 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.
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: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
THRIFTY PAYLESS, INC., as a
Subsidiary Guarantor,
By: _____________________________
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE B HERETO,
By: _____________________________
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
BNY MIDWEST TRUST COMPANY,
as Trustee
By: _____________________________
Name:
Title:
SCHEDULE B
000 Xxxxxxxx Xxxxxx Xxxxxxx, LLC
0000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx, LLC
0000 Xxxxxxx Xxxx - Xxxxxxxx Inc.
1740 Associates, LLC
0000 Xxxxxx Xxxx Xxxx - Xxxxxxxxxx Corp.
0000 Xxxxxxxxxxxx Xxxxxx Xxxx - Xxxxxxxxxxxx Xxxx, Inc.
5277 Associates, Inc.
000 Xxx Xxxxxx Corporation
5600 Superior Properties, Inc.
000-000 Xxxxxxxx Xx. Xxxx.
000 Xxxxx Xxxxxxxx- Xxxxxx, Xxxx, LLC
Xxx & Government Streets- Mobile, Alabama, LLC
Apex Drug Stores, Inc.
Baltimore/Annapolis Boulevard & Governor Richie Hwy-Glen Burnie, MD, LLC
Broadview and Wallings -Broadview Heights Ohio, Inc.
Xxxxxxx Xxxxxx xxx Xxxx Xxxxxx- Xxxxx, XX, LLC
Dominion Action Four Corporation
Dominion Action One Corporation
Dominion Action Three Corporation
Dominion Action Two Corporation
Dominion Drug Stores Corporation
Drug Fair of PA, Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
Eighth and Water Streets- Uhrichsville, Ohio, LLC
England Street-Asheland Corporation
GDF, Inc.
Gettysburg and Hoover-Dayton, Ohio, LLC
Gratiot & Center- Saginaw Township, Michigan, LLC
Harco, Inc.
Xxxxx Xxxxxx Xxxxxx Corporation
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Inc.
K&B Tennessee Corporation
K&B Texas Corporation
K&B Trainees, Inc.
K&B, Incorporated
Xxxx & Besthoff, Inc.
Keystone Centers, Inc.
Lakehurst and Broadway Corporation
Xxxxxxxx & Chillicothe Roads- Chesterland, LLC
Xxxxxx & Xxxxxxx, LLC
Name Rite, LLC
Northline & Xxx- Xxxxxx- Southgate, LLC
Ocean Acquisition Corporation
P.L.D. Enterprises, Inc.
Xxxxxx Drive and Navy Boulevard Property Corporation
Paw Paw Lake Road & Paw Paw Avenue- Coloma, Michigan, LLC
PDS-1 Michigan, Inc.
Perry Distributors, Inc.
Perry Drug Stores, Inc.
PL Xpress, Inc.
Portfolio Medical Services, Inc.
Rack Rite Distributors, Inc.
Ram-Utica, Inc.
RDS Detroit, Inc.
Reads, Inc.
Rite Aid Drug Palace, Inc.
Rite Aid Hdqtrs. Corp.
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maine, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Pennsylvania, Inc.
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
Rite Aid of Vermont, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid of West Virginia, Inc.
Rite Aid Realty Corp.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
Rite Investments Corporation
Rx Choice, Inc.
Script South, Inc.
Seven Mile and Evergreen- Detroit, LLC
Silver Springs Road- Baltimore, Maryland/One, LLC
Silver Springs Road- Baltimore, Maryland/Two, LLC
Sophie One Corp.
State & Fortification Streets- Jackson, Mississippi, LLC
Xxxxx Xxxxxx xxx Xxxx Xxxx- Xxxxxx, Xxxx, LLC
Super Distributors, Inc.
Super Ice Cream Suppliers, Inc.
Super Laboratories, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc.
The Lane Drug Company
The Xxxx Company
Thrifty Corporation
Thrifty PayLess, Inc.
Thrifty Wilshire, Inc.
Tyler and Xxxxxxx Roads, Birmingham- Alabama, LLC
Virginia Corporation
W.R.A.C., Inc.
Fairground, LLC
Xxxxxxxxxx'x Enterprises, Inc.
